author: CULPEPPER, Judge.

text:
    Jo Juanna Wiggins ATTEBERRY, Plaintiff and Appellee, v. Winston ATTEBERRY, Jr., Defendant and Appellant.
    No. 7275.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 1979.
    Rehearing Denied Feb. 4, 1980.
    Writ Granted March 21, 1980.
    Louis M. Corne, Lafayette, for defendant-appellant.
    Allen, Gooch & Bourgeois, Arthur I. Robi-son, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and YELYERTON, JJ.
   CULPEPPER, Judge.

This is a child custody case. The children involved are Winston Todd Atteberry, now 9 years of age, and Garrett T. Atteberry, now 6 years of age. The district judge awarded custody to the mother, Jo Juanna Wiggins Atteberry. The father, Winston Atteberry, Jr., appealed.

The issue is whether the granting of permanent custody to the mother is in accordance with the best interest of the children. Our decision of this issue is difficult because the trial judge awarded custody to the mother, although she was admittedly living in open adultery at the time of trial. No case from our Supreme Court has gone this far. In only one case have the Courts of Appeal awarded custody to a mother living in open adultery at the time of trial, Baber v. Baber, 354 So.2d 699 (La. App. 4th Cir. 1978), and that decision was by a divided court. We ultimately conclude, as did the dissenting judge in Baber, that a mother who so openly and flagrantly disregards our society’s rules of moral behavior is unfit for custody of minor children. We conclude the best interest of these children requires that custody be awarded to the father.

The record shows that the Atteberrys were married on April 21, 1969. The oldest child, Todd, was born in 1970. The youngest, Garrett, was born in 1973. Plaintiff and defendant had a stormy marriage. There is much evidence of verbal abuse, uncontrolled tempers, threats, accusations of adultery and other conduct contributing to their matrimonial difficulties.

On September 27, 1977, Mrs. Atteberry filed a suit for separation from bed and board, on the grounds of cruelty, and for temporary custody of the two children. Judgment was rendered on October 10,1977 awarding provisional custody to Mrs. Atte-berry, with the father having visitation rights on weekends.

On November 7,1977, Mr. Atteberry filed an answer to his wife’s suit for separation and a reconventional demand for divorce on the grounds of adultery. In August of 1978, a trial was held on the suit for separation, the reconventional demand for divorce and the custody issue. On October 25,1978, a judgment of divorce was rendered in favor of Mr. Atteberry on the grounds of adultery. The district judge held under advisement the custody issue, pending an investigation ordered in September of 1978 by the trial judge of the family environment of both the mother and the father. These investigations of the two homes were made in September of 1978 and are filed in evidence. On April 23, 1979, the district judge, without giving reasons, awarded permanent custody of the two children to Mrs. Atteberry.

On appeal, the father’s principal contention is that the mother’s admitted adulterous relations make her unfit for custody. The father alleged adulterous conduct of the mother beginning in 1976 and involving four different men.' No evidence was presented to support the allegations with two of the men named. However, the wife admitted one act of adultery with a third man, Durwood Cantrelle. This individual also gave testimony concerning the relationship and stated that numerous adulterous acts occurred over a two-month period in the summer of 1977. Two private investigators employed by the father were not eyewitnesses to any acts of adultery during this relationship, but they did establish meetings which were clandestine in nature.

Of greater consequence is the wife’s past and present relationship with a fourth man, Warner “Sonny” Manning. By the wife’s own admission and the testimony of numerous witnesses, the record conclusively shows that at the time of trial in August of 1978 Jo Juanna had lived in open adultery with Manning since about January of 1978. And, insofar as the record before us shows, she is still living in open adultery with him.

Sometime after the separation in 1977, Jo Juanna moved with her two children from the matrimonial domicile in Lafayette to Fort Necessity, where her family lives. She and the children moved into a three bedroom house in a rural area and she took Sonny Manning into the house as a boarder. At some point, the couple became lovers, a fact known to her family and friends. He and Jo Juanna testified he occupied his own bedroom except for weekends when the boys were with their father in Lafayette. However, Todd testified Sonny slept with his “mama”.

Manning has provided some support for the household and assumed a parental role with the two boys, taking them to school and administering discipline. The couple also took the Atteberry children, as well as Manning’s son by a previous marriage and Manning’s younger brother, on a vacation to Disney World. They all traveled together in a camper. Todd testified he and Garrett slept in the top bunk and Sonny slept in the lower bunk with his “mama”.

Both Jo Juanna and Sonny testified to their desire to marry when the Atteberry divorce judgment is final. The divorce judgment rendered October 25, 1978, became final after 60 days, LSA-C.C.P. Article 2087, but we have no evidence nor contention that they have married. Neither the mother nor her paramour think their adulterous relationship is detrimental to the children. They, as well as witnesses testifying on their behalf, presented the relationship as acceptable because the couple has fallen in love and intend to marry. The couple has made no effort to hide their relationship.

The applicable statutory law set forth in LSA-C.C. Article 157 reads in pertinent as follows:

“A. In all cases of separation and divorce, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children.”

There is some question in the jurisprudence as to whether the 1977 amendment to Article 157 was intended by the legislature to overrule the maternal preference rule as stated in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), to the effect that unless the mother is proven unfit or unable to care for the minor children, custody must be awarded to her. One view is that under Article 157, as amended in 1977, maternal preference is no longer a rigid rule but is merely one of the factors to be considered and weighed in determining the best interest of the children. See the majority and dissenting opinions in Heymann v. Heymann (3rd Cir. 1979); also Thornton v. Thornton, 377 So.2d 417 (La.App. 2d Cir. 1979). Nevertheless, regardless of whether the maternal preference rule as stated in Fulco is still the law, the result is the same in the present case, because the mother here is morally unfit for custody.

The mother relies heavily on Monsour v. Monsour, 347 So.2d 203 (La.1977) in which the mother had been living in open adultery for a period of four months at the time the father filed a rule to change custody of a nine-year-old boy. After the rule was served on her, the mother married her paramour. The trial judge held that at the time of the hearing of the rule to change custody, the mother had reformed, was leading a stable life and was suited for custody. The Court of Appeal reversed, but our Supreme Court reinstated the trial judge’s decision. We find the Monsour case is not controlling here, because the mother in the present case had a worse record of adulterous relationships, and she was still living in open adultery at the time of trial.

The mother also relies on Baber v. Baber, 354 So.2d 699 (La.App. 4th Cir. 1978), where the court, in a two to one decision, granted custody of an 11-year-old daughter to the mother, who, at the time of trial had engaged in an adulterous relationship for a period of five years on weekends at her “fiance’s” horse ranch. In affirming the trial judge, the majority in the Court of Appeal emphasized the evidence that the father had disciplined his 17-year-old daughter by a previous marriage, by spanking her to the extent that she told her doctor she contemplated suicide. The dissenting judge in Baber found the mother’s flagrant, disregard for society’s rules of moral behavior rendered her unfit for custody. He also construed the evidence of one occasion of the father spanking the older child as not indicating such an abusive or reasonable nature as to render the father unfit for custody.

In the recent case of Cleeton v. Cleeton, 369 So.2d 1072 (La.App. 1st Cir. 1979) the court reviews the jurisprudence holding that living in open adultery, especially in the presence of and to the knowledge of the children, creates such an unwholesome environment as to be grossly harmful to the moral welfare of children. We find this jurisprudence applicable here. We conclude the mother is morally unfit for custody of these two children.

We are aware of the jurisprudential rule that, upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (La.1971). Since the trial judge gave no written reasons, we do not know whether he found the mother morally fit. If he did, we find he abused his discretion in this regard.

After the trial in August of 1978, the trial judge made a minute entry on September 5, 1978 stating “The court is of the opinion that permanent custody should not presently be awarded to either party. Instead, the court is recommending an investigation of both family environments by the Louisiana Division of Family Services, at the conclusion of which a determination of permanent custody will be made.” During September of 1978, separate investigations by different welfare workers were made of the home of the father in Lafayette and the home of the mother in Fort Necessity. The reports are filed in evidence. Each is in-detail and concludes with the recommendation that the respective parent and home is suitable.

As regards the father, the report on him shows that he is 34 years of age, has a college degree in business, is a member of the Baptist faith and is self-employed as a test engineer in the oilfields with earnings of about $20,000 per year. His parents were rice farmers in the Rayne area. He presently lives with his aunt, Mrs. Edith Atteberry, in a two-bedroom apartment in Lafayette. Although he says the apartment is adequate for the children, he states that if he receives custody of the children he plans to buy a three-bedroom house on 1.4 acres near Rayne; His aunt and babysitters will assist him in the care of the children when he is away from home on business. From this report, it appears the father is well able to care for the children.

We have considered the possibility that the trial judge was influenced by evidence that the father disciplined the older child with a belt during one of the weekend visitations. The mother testified that on one occasion when the child returned to Fort Necessity, she saw bruises on his buttocks and took pictures, which are in the record. These pictures do show slight bruises on the child’s buttocks. The father admitted he had on occasion disciplined the child with a belt, but he denied ever causing bruises. Whether a child should be disciplined with a belt or a paddle or a switch is a very controversial matter in our society. There are cases which hold that spanking with a wooden paddle in our public schools is permissible if necessary and if done in moderation. Like the dissenting judge in Baber, supra, we are most reluctant to hold that this one alleged incident of disciplining with a belt proves this father is so unreasonable or abusive in his discipline of the children as to be unfit for their custody.

Our conclusion is we must hold the mother to be so morally unfit that custody cannot be awarded to her. Under the facts of the present case, we find the best interest of the children requires that custody be awarded to the father.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of the appellant, Winston Atteberry, Jr., and against the appellee, Jo Juanna Wiggins Atteberry, awarding to appellant the permanent custody of the two minor children, Winston Todd Atteberry and Garrett T. At-teberry. The right is reserved to the appel-lee to visit the children at such reasonable times and places as the district court may provide in future proceedings. All costs of the trial court, as well as the costs of this appeal, are assessed against the appellee.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: WARE, Judge.

license: Public Domain

text:
    Michael J. MEDUS, Plaintiff-Appellant, v. Mathilda T. MEDUS, Defendant-Appellee.
    No. 7276.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 1979.
    Rehearing Denied Feb. 4, 1980.
    Writ Refused March 21, 1980.

      Morrow & Morrow, Patrick C. Morrow, Opelousas, for plaintiff-appellant.
    Pucheu & Pucheu, Jacque B. Pucheu, Eunice, for defendant-appellee.
    Before CUTRER, STOKER and WARE, JJ.
   WARE, Judge.

Michael J. Medus brought this action by rule against his former wife, Mathilda Thi-bodeaux Medus, to obtain custody of his four minor children. He appeals a judgment of the district court sustaining an exception of lack of subject matter jurisdiction and dismissing his rule.

On May 12, 1977, the Twenty-Seventh Judicial District Court rendered a judgment of divorce in favor of appellant, awarding the permanent care, custody and control of the four minor children of the marriage to appellee. Appellee retained custody of the children until May 24, 1978, when the Juvenile Court for St. Landry Parish (the City Court of the City of Eunice) granted their custody to appellant in a proceeding bearing the docket number J-2065 and entitled “State of Louisiana vs. Michael James Me-dus.” On March 26, 1979, custody was returned to appellee by the juvenile court in a proceeding bearing the same docket number but entitled “State of Louisiana in the Interest of Christopher Shane Medus, Douglas Anthony Medus, Corina Lynn Medus and Leta Marie Medus.”

Appellant brought the present action in the district court on April 5, 1979. Appellee filed a declinatory exception, alleging that the district court was without jurisdiction to determine the custody issue presented, because the juvenile court had already acquired and continued to maintain exclusive jurisdiction. After a contradictory hearing, the district court sustained the exception and dismissed appellant’s rule.

The evidence introduced by appellee in support of her exception was limited to the minute entries for the two juvenile court proceedings and the May 24, 1978 and March 26, 1979 orders changing custody. The district court based its conclusion that the juvenile court had continuing, exclusive jurisdiction on the language of those orders. Both were prepared on a form containing blanks for the names of the children, the name and address of the person to whom custody is granted, and the date. The orders state that the court had “taken said child into its protective custody.”

As appellant correctly notes, the exclusive jurisdiction of juvenile courts with regard to determining custody is limited. Article 17 of the Code of Juvenile Procedure provides in pertinent part:

“Except to the extent that a court exercising juvenile jurisdiction has determined custody of a child in a judgment of disposition after the child has been adjudicated delinquent, in need of supervision, or in need of care, nothing contained in Articles 14 through 17 shall deprive courts exercising civil jurisdiction of the right to determine custody of a child under writs of habeas corpus or other proceedings, or to determine the custody of a child when such custody is incidental to the determination of cases pending in such courts.” (Emphasis added).

Under that provision, it is clear that appel-lee had to prove two things in order to establish that the juvenile court had exclusive jurisdiction as alleged in her exception. First, she had to show that the children had been adjudicated delinquents, in need of supervision, or in need of care. Second, she had to show that their custody had been determined by the juvenile court in a judgment of disposition.

Article 87 of the Code of Juvenile Procedure provides the following with respect to judgments of disposition:

“A. The court shall enter into the record a written judgment of disposition specifying the following:
(1) The nature of the disposition.
(2) The maximum duration of the disposition and, if committed to the Department of Corrections, the maximum term of the commitment.
(3) The agency, institution, or person to whom the child is assigned.
(4) The conditions of probation, if applicable, and
(5) Any other applicable terms and conditions regarding the disposition.
B. In delinquency proceedings, the judgment of disposition shall specify the offense for which the child has been adjudicated a delinquent.
C. An extract of minutes of court specifying the information in Paragraph A and signed by the court shall be considered a written judgment of disposition.
D. The date of entry of the judgment of disposition shall be recorded on the judgment.
E. Upon request, a copy of the judgment of disposition shall be furnished to the parent.”

After examining the minute entries and corresponding orders introduced into evidence by appellee, we believe that both constitute judgments of disposition within the meaning of that article. Accordingly, we find that appellee has satisfied the second requirement set out above.

Our finding that the juvenile court has determined custody of the children in a judgment of disposition does not resolve the issue before us, however. A judgment of disposition rendered by the juvenile court does not preclude the district court from determining custody at a later time, unless the children have been adjudicated delinquent, in need of supervision, or in need of care. LSA-C.J.P. Art. 17. A proceeding in which such an adjudication is made must be initiated by a petition. LSA-C.J.P. Art. 45. The record before us does not contain such a petition or any other indication that such an adjudication was made by the juvenile court.

Appellant alleges that the May 24, 1978 juvenile court proceedings were initiated by appellee because she wished to voluntarily surrender custody of the children pursuant to LSA-R.S. 13:1570, which provides in pertinent part:

“Except as otherwise provided herein, the [juvenile] court shall have exclusive original jurisdiction in proceedings:
C. To award the custody of a child domiciled within the parish or who is actually in the parish to an agency, institution or individual when the parent or other person having custody or care of the child wishes to relinquish custody or care for the purpose of enabling the child to receive adequate care and protection.”

That allegation appears to be supported by the court’s referral to appellee as “the complaining witness” in the minutes of those proceedings.

Appellant further alleges that the March 26, 1979 proceedings were not initiated by a petition alleging that the children were delinquent, in need of supervision, or in need of care. Again, his allegations appear to be supported by the minute entry for those proceedings, wherein the court stated:

“Considering the testimony of Mrs. Helen 0. Castellini [Welfare Social Worker] which is summarized in her written report as well as the testimony of the mother, The Court feels that it is in the best interest of the children to be returned to the custody of their natural mother . .” (Emphasis added).

Appellee neither admits nor denies these allegations.

If, as appellant argues, the juvenile court never adjudicated the children delinquents, in need of supervision, or in need of care, it is clear that the juvenile court does not have exclusive jurisdiction. LSA — C.J.P. Art. 17. Unfortunately, the evidence in the record before us is insufficient to make a finding on that point. The fact that the judgments make no mention of such an adjudication appears to be significant. However, it is well settled that it is not essential that an express finding of delinquency, need of supervision or need of care appear in the decree following a juvenile court hearing, provided that there was sufficient evidence before the trial judge to support a conclusion that the child was in one of those classifications. State, In the Interest of Thompson, 372 So.2d 1255 (La. App. 3rd Cir. 1979); State v. Robinson, 353 So.2d 442 (La.App. 3rd Cir. 1977). Under these circumstances, we must conclude that appellee has not borne her burden of proving the facts on which her exception is based and that the district court, therefore, erred in sustaining it.

We note, however, that appellee’s failure to prove her exception would not divest the juvenile court of exclusive jurisdiction, if the statutory requirements for obtaining such jurisdiction were in fact satisfied. Therefore, if we reverse and render judgment overruling the exception, there is a disturbing possibility that any judgment rendered by the district court on the merits will be null because of its lack of subject matter jurisdiction. LSA-C.C.P. Art. 3. In view of this fact, we believe that the most appropriate solution to the problem would be to reverse and remand this matter to the district court for the taking of further evidence in order to clarify the juvenile court’s position.

Accordingly, the judgment appealed is reversed and set aside, and this matter is remanded to the district court for further proceedings consistent with the views expressed herein. All costs of this appeal are assessed against appellee, Mathilda T. Me-dus.

REVERSED AND REMANDED.

      . The requirements for the form and contents of the petition are set out in LSA-C.J.P. Arts. 47—49.

      . Such proceedings are now authorized and governed by the Code of Juvenile Procedure, which became effective on January 1, 1979. Article 17 of that Code provides in pertinent part:
      “A. A court exercising juvenile jurisdiction shall have exclusive original jurisdiction, in conformity with any special rules prescribed by law, in the following cases:
      (2) Proceedings to award custody of a child domiciled within the parish or who is actually in the parish to an agency, institution or individual, when the parent wishes to relinquish custody or care for the purpose of enabling the child to receive adequate care and protection.”


text:
    Robert HESSE and James Hesse, Plaintiff and Appellant, v. Benjamin BUSBY, the Aetna Casualty & Surety Company and the Standard Fire Insurance Company, Defendant and Appellee.
    No. 7281.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 1979.
    Rehearing Denied Feb. 4, 1980.
    Writ Refused March 21, 1980.
    Landry & Comeaux, Sidney P. Landry, Jr., Lafayette, for plaintiff-appellant.
    Fontenot, Andrus & Preis, Vance R. An-drus, Lafayette, for defendant-appellee.
    Before CULPEPPER, GUIDRY and CUTRER, JJ.
   CULPEPPER, Judge.

Plaintiffs seek damages for an alleged assault and false arrest committed by the defendant. From a judgment rejecting their demands, plaintiffs appeal. The defendant answers the appeal, seeking expert witness fees of two doctors.

The substantial issue is whether the defendant Busby acted reasonably in carrying a shotgun when he approached and detained a group of teenagers,- whom he believed to be the persons who had been harassing him and his family and vandalizing his property.

In written reasons amply supported by the record, the trial judge states:

“Plaintiffs contend that on December 18, 1976, the children of Robert Hesse, Claire and James were assaulted and falsely imprisoned by defendant Benjamin Busby.

“James Hesse testified that he, his sister and three other teenage girls were riding around at approximately 10:30 p. m. in the residential neighborhood where defendant and his family lived.

“He said they rode past defendant’s home and noticed that it had been toilet papered. Claire, his sister, asked him if it was John Barber’s house. John Barber was a friend of James’. James then testified that they drove around the block and again passed the Busby home. He then stopped within a few feet of the Busby home because three of the girls had to urinate. Those three, among whom was his sister Claire, disappeared into the darkness behind bushes while James and Karen remained seated in the vehicle. He testified that defendant Busby appeared on the scene in his automobile blocking the Hesse vehicle so that it could not be moved. Busby then, he says, pointed a shotgun at him and told him and Karen to get out of the automobile. He said that Busby yelled at them and told them that he knew that they had papered his house. The other girls hearing and seeing what was happening came back to the scene. They all denied their guilt as to the vandalism charged by Busby. James then suggested that they go to John Barber’s home around the corner to use the phone to call his parents and also to establish his identity through the Barber family. Busby accommodated James in his request. When they arrived at the Barber home, no one was there so they returned to the scene. Claire Hesse’s testimony is substantially the same as James. One of the girls in the group lived 2 to 3 minutes by car from the Busby home. Karen who was also involved in the incident testified they drove around the Busby block twice before stopping on the third time around. James Hesse at first denied having any knowledge of the existence of a green Ford automobile with a busted tail light owned by one of his passenger’s parents. When showed a photograph of a Ford automobile, James acknowledged that it did exist, was owned by the parents of one of his passengers but that they had never been permitted to use the vehicle. The significance of the examination was that Busby had seen such a vehicle circling around his home at night on previous occasions.

“Defendant, Busby, testified that for a period of 6 months prior to the incident, he and his family had been subjected to a persistent pattern of vandalism, toilet papering of his home, trashing of his yard, ringing of door bells and anonymous phone calls. He also testified that certain thieves of oil field equipment had been apprehended by authorities. The thefts had taken place at his Houma, Louisiana office. He indicated to the Court that he feared that he and his family’s lives were in jeopardy by other individuals whom he believed might have been part of the thievery ring.

“The Court having seen, heard and observed the testimony of the witnesses in Court makes the following observations.

“Five teenagers were riding around at a late hour of the evening and according to Karen had nothing to do. They insist they were looking at Christmas decorations. Woodbluff, the street upon which Busby lives, dead ends into Vermilion River and the exit out of the subdivision is in the opposite direction of the Busby home. James Hesse knew where John Barber lived, indeed he escorted Busby on foot to that residence which was around the corner and past the Busby home. Once he passed Busby’s home, he would then encounter Barber’s home. Why was it necessary then to make another complete circle around the block and then still yet a third when exit from the subdivision was in the opposite direction from defendant’s home? Then on the third trip around, three girls have a sudden call of nature at the same time and the place they elect to stop is just a few feet from defendant’s home. The three girls choose to urinate on an adjacent vacant lot to the Busby property instead of driving 2 to 3 minutes to one of the girls’ own home. There is no evidence that they ever did relieve themselves either then, while Busby went with Hesse or later at the police station where they reported the incident. There were lights on at the Meadows residence just across the street from the Busby home. Busby says he offered to take Hesse there • but that he refused. Hesse says he was not given an opportunity to go there. If Busby was willing to take Hesse to the Barber home, it doesn’t make sense that he would not have been willing to take him a lesser distance, just across the street.

“After this incident, Busby testified that he was never bothered with vandalism again.

“This Court has serious reservations about believing that those teenagers were not in fact responsible for the prior acts of vandalism and harassment. Apparent disregard for others’ property was demonstrated in their own admission of trespass.

“It is not necessary however to make that determination in order to decide this case.

“Defendant Busby appeared to the Court to be a clean cut responsible businessman, husband and father. Both he and his wife testified that they lived in fear for six months. They could not understand who would do this to them or why. To be a prisoner in one’s own home when the sun goes down for fear is something that has never been sanctioned by the law of this State. The Court believes that Mr. Busby acted out of fear and frustration as a result of a persistent pattern of mental torment inflicted upon he and his family.

“Mr. Busby did not shoot anyone. Indeed Claire Hesse said she did not fear for herself. While Mr. Busby’s conduct might otherwise be considered tortious, under the facts and circumstances of this case, this Court cannot in good conscience hold him liable. To do so would quite simply be a miscarriage of justice.”

The applicable law is stated in Byrd v. Isgitt, 338 So.2d 374 (3rd Cir. 1976) as follows:

“[1,2] The general rule is that where a person reasonably believes he is threatened with bodily harm he may use whatever force appears to be reasonably necessary to protect himself. Each case depends on its own facts, such as the relative size, age and strength of the parties, their reputations for violence, the degree of physical harm reasonably feared and the presence or absence of weapons. Roberts v. American Employers Insurance Company, Boston, Mass., La.App., 221 So.2d 550 (3rd Cir. 1969).”

We do not find the trial judge was clearly wrong in accepting the testimony of the defendant and his wife over that of the teenagers. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Under defendant’s version of the facts, we find no manifest error in the trial judge’s finding that defendant acted reasonably.

In his answer to the appeal, defendant requests that the judgment of the district court be modified to award expert witness fees to Dr. James Blackburn and Dr. Robert Cole, and that the amount of these fees be fixed and assessed to the plaintiffs as costs of court. In his brief, defendant states these two experts testified at the trial in favor of defendant. However, the record before us does not contain the testimony of these physicians. There is a note by the court reporter (Tr. 159) that these two doctors testified, but the reporter was advised that it would not be necessary to transcribe their testimony. Furthermore, we find no stipulation in the record for the fixing of these fees.

There is no basis in the record before us on which we could fix the amount of the fees or assess them as costs. Accordingly, we reject the demand made in defendant’s answer to the appeal. However, we reserve to the defendant the right to seek these fees by rule filed in the trial court. See Ferguson v. H D E, Inc., 274 So.2d 783 (3rd Cir. 1973) and the authorities cited therein.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiffs.

AFFIRMED.


author: YELVERTON, Judge.

text:
    Donald LAUNEY et al., Plaintiffs-Appellees, v. Lee THOMAS et al., Defendants-Appellants.
    No. 7299.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 1979.
    Rehearing Denied Feb. 4, 1980.
    Writ Refused March 21, 1980.

      Offices of Stephen J. Ledet, Jr., by Bruce A. Gaudin, Opelousas, for defendants-appellants.
    Preston N. Aucoin, Ville Platte, for plaintiffs-appellees. ■
    Before CULPEPPER, GUIDRY and YELVERTON, JJ.
   YELVERTON, Judge.

Plaintiff Donald J. Launey, Jr., and his wife Connie T. Launey filed suit for themselves individually and on behalf of their minor daughter, Nicole Launey, for medical expenses and general damages based on an automobile accident. The accident happened on May 30, 1977 at about 6 o’clock P.M. on West Main Street in Ville Platte, Louisiana. Named defendants were Lee Thomas, alleged to have been uninsured, and the Hanover Insurance Company, the Launeys’ uninsured motorists carrier.

The trial judge found that the negligence of Lee Thomas in striking the Launey car from the rear was the sole cause of the accident. He further found that Lee Thomas was an uninsured motorist and that Hanover provided uninsured motorists coverage for plaintiffs. He awarded Donald J. Lau-ney, Jr. medical expenses in the total amount of $1,175.05, together with an additional special damage item of $79.32 representing lost wages of Connie T. Launey. He awarded general damages of $25,000 to Connie T. Launey for her personal injuries, and $3,500 to Donald J. Launey, Jr., on behalf of his minor child, Nicole, for her personal injuries. Additionally, he awarded property damage to Donald J. Launey, Jr., in the amount of $429, but only against defendant Lee Thomas. Finally, he imposed statutory penalties of 12 percent on the total awards (except for property damages) and attorney’s fees in the amount of 33*/8 percent of said awards. The imposition of penalties and attorney’s fees was based on LSA-R.S. 22:658.

From this judgment the Hanover Insurance Company appealed. Plaintiffs answered the appeal praying for an increase in the award of attorney’s fees.

The Hanover Insurance Company assigns six errors:

I.The Trial Judge erred in holding that plaintiff had satisfied his burden of proving that the uninsured motorists provisions of the Hanover policy are applicable, and who the owner of the adverse vehicle was.
II.The Trial Judge erred in concluding that Ms. Connie Launey was not a contributing cause of the accident and injuries.
III. The Trial Judge erred in permitting the introduction of evidence of compromise and settlement at the trial on the merits.
IV. The Trial Judge erred in granting awards for pain and suffering and for special damages in sums unsupported by and even contradictory to the facts and the law, and in failing to recognize credits for payments made prior to the trial.
V.The Trial Judge erred in finding that Hanover was arbitrary and capricious, and in awarding penalties not prayed for or proven, and attorney’s fees in a grossly excessive amount.
VI.The Trial Judge erred in refusing to grant a New Trial, or even a hearing on appellant’s application therefor, in light of the reasons set forth in appellant’s Rule.

I.

The first assignment of error is that the trial judge erroneously held that the plaintiffs had satisfied their burden of proving the uninsured status of the other driver, Lee Thomas.

Defendant Lee Thomas, whose automobile rear-ended that of plaintiffs, testified at the trial on cross-examination that it was his car he was driving and that he did not have liability insurance. This was all the testimony offered by plaintiffs on the subject of uninsured status. LSA-R.S. 22:1406(D)(6) provides for the admissibility of sworn notarized affidavits as prima facie proof of uninsured status. No affidavits were offered in evidence in this case, but the statute does not mean that affidavits are the exclusive methods of proof. Absent such affidavits, plaintiffs may sustain their burden of proving the offending driver is uninsured by other evidence. See Campbell v. American Home Assurance Company, 260 La. 1047, 258 So.2d 81 (1972); Beck v. Allstate Insurance Company, 359 So.2d 1327 (La.App. 4th Cir. 1978). We find no error in the trial judge’s acceptance of the sworn and uncontradicted testimony of the owner-driver as proof there was no insurance on his car.

II.

The second error complained of was the trial judge’s finding that Ms. Launey, driver of plaintiffs’ car, was free of contributory negligence. Ms. Launey was stopped in her lane of traffic with turn signals and brake lights in operation, waiting for traffic so she could turn left. Defendant Thomas was driving behind her. He testified that moments before the accident he had his head turned talking to his wife who was in the front seat with him. Thomas’ inattentiveness was the cause of the accident. We find no manifest error in the trial court’s finding that Ms. Launey was free of contributory negligence.

III.

The third assignment of error concerns the admission of evidence regarding compromise or settlement.

In a pretrial conference, the trial court indicated it would allow in evidence the details of pretrial settlement negotiations. Considerable evidence regarding those negotiations was admitted. It is apparent that the purpose for admitting this evidence was to test the reasonableness of Hanover’s conduct in handling the claims being asserted by its insured under the uninsured motorists coverage. The trial court relied on Soniat v. State Farm Mutual Automobile Insurance Company, 340 So.2d 1097 (La. App. 4th Cir. 1976), which held that the penalties statute LSA — R.S. 22:658 applies to uninsured motorists claims.

While we shall pretermit a specific determination of whether this circuit agrees with Soniat insofar as that case concerns the application of the penalties statute to uninsured motorists claims, we cannot say the trial court was manifestly in error in admitting the evidence considering the limited purpose for which it was received.

Compromise or offers to compromise are generally inadmissible to prove liability, but they may be admissible for other purposes. Broussard v. State Farm Mutual Automobile Insurance Company, 188 So.2d 111 (La.App. 3rd Cir. 1966).

IV.

This assignment of error addresses itself to the excessiveness of the awards for pain and suffering made to Ms. Launey and the child, Nicole Launey, and to the trial court’s failure to recognize credits for special damages paid prior to the trial.

The Award to Ms. Launey

The trial court awarded Ms. Launey general damages for her pain and suffering in the amount of $25,000, which was the policy limit under the uninsured motorists coverage for one person.

Appellant urges that this award was manifestly excessive as this plaintiff had nothing but a soft tissue injury to her neck, and that the award should be reduced to no more than $4,000.

In his reasons for judgment the trial court based the award on its conclusions that as a result of the accident (May 30, 1977) plaintiff Ms. Launey suffered a chronic muscle strain of the neck with tension myositis. It found that as of the trial date, January 12, 1979, she was still suffering from these symptoms. It further found on the basis of orthopedic testimony an expectation of continued pain and suffering for an additional six to 12 months. From this it determined the chronic condition would have a total duration of two and a half years post-accident.

Our review of the evidence as it relates to her injuries reveals that Ms. Launey, 31 years old at the time of the accident, was driving the family car which was unexpectedly hit from the rear. Damage to her car was $429. She immediately complained of pain in the upper back and neck and she was seen that same day by Dr. Henry Dupre of Ville Platte who hospitalized her for four days. Dr. Dupre described the initial injury as affecting several muscle groups in the upper back and neck. While she was hospitalized she was administered medication and physical therapy. Spasm was noticed in the muscles of the upper back. She was discharged from the hospital to home rest with instructions to continue on her medication.

About a week after the accident she returned to her job as a receptionist at a local bank. At the time of her discharge from the hospital, Dr. Dupre felt she would be symptomatic for a period of from three to six weeks, with possible exacerbations of pain and soreness and irritability for up to a year to two years. After her discharge from the hospital, she was given a series of diathermy treatments on two separate occasions. At one point she developed a bursitis which the doctor attributed to the accident.

Between the date of the hospital discharge, June 2, 1977, and August 1, 1977, Dr. Dupre had telephone consultations with her at which times she complained of persistent problems. He saw her again in his office on August 1, 1977 and examined her and at this time she continued to complain of persistent pain involving the upper back region with inflammation of the rhomboid muscle groups on the right side and rhomboid bursitis. He was again able to find objective evidence of injury on this occasion. He saw her again in the office on December 1, 1977, and was consulted thereafter on an unspecified number of times on the telephone. In early 1978 noting that Ms. Launey was continuing to have symptoms of pain and stiffness and significant limitations in what her normal activities entailed, he decided on a consultation with a specialist. She was referred to Dr. Lionel Mayer, an orthopedist in Opelousas.

Dr. Dupre saw her once more on July 27, 1978, at which time she was continuing to have chronic muscle inflammation and chronic myositis and fibrositis which he believed to be related to the accident. He had no contact with her after July 27, 1978.

Dr. Mayer, an orthopedist, and the only other doctor to see Ms. Launey, saw her first on February 22, 1978 and again on December 18, 1978. His findings on the latter visit which was some 18 months post-injury, were about the same as those on his first examination. Although he could find no objective evidence of nerve root compression or cervical disc involvement, he noted that she was still having problems. He further stated that he felt her complaints were on a legitimate basis and that he had no reason to doubt her. It was his opinion that she had a chronic muscle strain with tension myositis, and that this would persist for an indefinite period of time. He did not believe that any treatment other than mild analgesics was indicated. He said:

“I think it’s a matter of simply the patient accepting what she has, with the hope that subsequently the aching and the pain will eventually disappear. These patients differ from individual to individual. Some get well in several weeks to several months and some may hurt for two years or so.”

He also stated that while all patients differ, in this particular patient’s case he thought that her condition was of a mild degree and that she was never disabled when he saw her. His final opinion was that the prognosis for full recovery was quite good and he estimated this to occur within six to 12 months from December of 1978, which figures out to be between 24 to 30 months post-injury.

At the trial on January 12, 1979, Ms. Launey testified that she was continuing to have difficulties and this was supported by testimony of others.

In determining whether the “much discretion” of the trial court in awarding damages under La.Civil Code Art. 1934(3) has or has not been abused in this case, we follow the methodology of appellate review of awards for general damages as explained in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976) and Reck v. Stevens, 373 So.2d 498 (La.1979). Our initial inquiry as mandated by these decisions must be directed at whether the trial court’s award for the particular injuries and their effects on this particular injured person was a clear abuse of discretion. At this initial inquiry we are not permitted to consider prior awards except as to their limited function as aids where the present award is shown to be greatly disproportionate to the mass of past awards for truly similar injuries. Appellant and appellee have each cited numerous prior awards which are offered to show respectively that the award was either excessive or correct. We are unaided by these awards since we find none of them to be truly similar to the instant facts. There are some surface similarities but we are mindful of language in Coco at 341 So.2d 335-36 which points out that no two cases are exactly alike.

We have carefully considered the evidence on which this award was based. Ms. Launey suffered a bothersome injury but not a serious one. The award of $25,000 was excessive. Based on the evidence in the record, the maximum award possible for this plaintiff’s injuries under the particular circumstances of the present case is $15,000. We will reduce the award to $15,000.

The Award on Behalf of Nicole Launey

We turn now to a consideration of the alleged excessiveness of the award on behalf of the child. The trial judge found that the little girl, who was three years old at the time of the accident, sustained multiple contusions and sprains involving the paraspinal muscles of the back. The Court awarded her $3,500 in general damages for her pain and suffering. .

The record reveals that little Nicole was sitting in the front seat with her mother and on impact she was thrown into the back seat. She was seen in the emergency room with complaints of pain in the lower back area. The medical opinion of Dr. Henry Dupre, examining physician in the emergency room, was in the form of a letter report. It shows that Nicole was under no acute distress and that the physical examination was unremarkable. She complained of pain on examination and palpation of the lower back, especially the left flank. She was nauseated initially but had no vomiting. The doctor’s final diagnosis was muscle contusion and sprain involving the para-spinal muscles of the back. She was discharged to the care of her family.

The child’s mother, Ms. Launey, testified that when she got home Nicole was given Tylenol to relax her, that she did not seem to be “hurt bad”, and that she was not again seen by a doctor. Nicole’s babysitter also testified that the child for two or three days complained of back pain, had to be sedated and was upset about the accident.

The award of $3,500 for this injury was excessive. The entire body of evidence in the record pertaining to Nicole’s injuries can be read in less than a minute. The paucity of evidentiary substantiation of significant injury is compatible with its brevity. Even the child’s mother said she was not badly hurt. We find that an award of $1,500 is the maximum award possible for Nicole’s injuries and we will reduce it to that amount.

Credit for Special Damages Paid Prior to Trial

The trial judge awarded plaintiff Donald J. Launey, Jr. judgment for medical expenses in the amount of $1,175.05 as well as judgment for Ms. Launey’s loss of wages in the amount of $79.32. These awards were in error as these amounts had already been paid to plaintiff Launey by Hanover prior to trial.

V.

The decision to award penalties and attorney’s fees under LSA-R.S. 22:658 was apparently based on Soniat v. State Farm Mutual Automobile Insurance Company, supra. This case, as we mentioned earlier, held that where an insurer cannot reasonably deny its insured’s claim on the grounds of liability or uninsured status, the insurer must unconditionally tender the unquestioned special damages as well as some reasonable amount in payment for the general damages, and if no reasonable basis exists for its failure to do so, the penalty provisions will apply.

It is unnecessary for us to presently express an opinion concerning the application of LSA-R.S. 22:658 to uninsured motorists claims. We pretermit the subject. It suffices, on these particular facts, to observe simply that Hanover’s conduct was not arbitrary. It paid the special damages as and when presented. It made an unconditional offer of settlement. Its offer of $2,500 to Ms. Launey, while low as compared to the amount we find acceptable as the outer limit for this particular case, was not so unreasonable as to brand its conduct arbitrary by the strict standards according to which R.S. 22:658, if applicable, must be applied.

There was manifest error in the finding that Hanover’s conduct was arbitrary.

VI.

The last assignment of error was addressed to the failure of the trial judge to grant a hearing on appellant’s motion for a new trial.

The motion for a new trial was presented to the judge and the grounds for the motion were stated therein. Attached to the motion itself was an order which began with this language:

“Considering the rule for new trial previously filed herein on behalf of The Hanover Insurance Company and the items of error contained there . . . ”

following which was the order with blank spaces to be filled in setting a date and time for a hearing. This portion of the order was lined out and on the margin beside it in his handwriting, the trial judge wrote “motion denied”, then signed and dated his ruling.

The contention that a motion for a new trial must be heard contradictorily is without merit. Such a motion may be denied summarily without holding a contradictory hearing. Sonnier v. Liberty Mutual Insurance Company, 258 La. 813, 248 So.2d 299 (1971).

For the reasons assigned herein, the judgment of the trial court awarding Donald J. Launey, Jr. special damages in the amount of $1,254.37 is reversed. The judgment on behalf of Connie T. Launey is amended to reduce the award to $15,000. The judgment on behalf of Nicole Launey is amended to reduce the award to $1,500. The judgment awarding penalties and attorney’s fees is reversed. In all other respects the judgment of the trial court is affirmed. Costs of this appeal are assessed equally between appellant and appellees.

AFFIRMED IN PART; AMENDED IN PART; REVERSED IN PART; AND RENDERED.


author: FORET, Judge. SWIFT, Judge,

text:
    Ancie RICHARD, Plaintiff-Appellee, v. STANDARD FITTINGS et al., Defendants-Appellants.
    No. 7319.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 1979.
    Rehearing Denied Feb. 4, 1980.

      Lewis & Lewis, James T. Guglielmo and Peter F. Caviness, Opelousas, for defendants-appellants.
    Fruge & Vidrine, Richard W. Vidrine, Ville Platte, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and SWIFT, JJ.
   FORET, Judge.

Plaintiff, Ancie Richard, instituted this suit seeking workmen’s compensation benefits for total and permanent disability resulting from an accidental injury to his hand while working for the defendant, Standard Fittings. The trial court awarded total disability benefits plus penalties and attorney’s fees. We affirm.

The facts reveal that plaintiff-appellee, Ancie Richard, brought this suit against Standard Fittings and its workmen’s compensation carrier, Reliance Insurance Company, as a result of an accident which occurred on June 9, 1976. The plaintiff was working as a “set-up” man in defendant’s forging plant when the accident occurred. His duties as a “set-up” man included repairing machinery, changing dies, and adjusting various pieces of machinery. While in the process of adjusting a trimming press, plaintiff’s right hand became caught between two pieces of steel and was crushed. The injuries to his right hand caused multiple fractures of his phalanges, permanent flexion of his middle finger and forced plaintiff to have his right index finger amputated. Since the amputation on the day of the accident, the plaintiff has undergone three additional operations of his right hand.

The facts of employment, insurance coverage, accident, rate of compensation, and medical expenses were stipulated by the parties.

The issues for determination on appeal are the extent and duration of the disability and the award of penalties and attorney’s fees.

The trial judge, in his written reasons said:

“Plaintiff has lost the index finger, has a 90° flexion contracture of his middle or long finger, and suffers much pain, and would in the court’s judgment, be unable to perform any work without suffering substantial pain. In addition, considering that this man has a third grade education, but cannot read and write, the Court feels that he could not engage in any gainful occupation for wages whether or not the same of similar occupation as that of which he was in at the time of the accident.
“Defendant attempted to show that there were certain types of work at their plant that plaintiff could do. The Court was not impressed with this testimony.”

The trial court heard testimony from three doctors, all of whom testified for the plaintiff.

Dr. John Adam Tassin first examined the plaintiff in April of 1977, about ten months after the accident and continued to treat him thereafter. At the time of his deposition, Dr. Tassin had examined the plaintiff about five times. Dr. Tassin testified it was very likely that the joints of the plaintiff’s right hand would freeze, causing him to develop a “claw-like” hand.

Dr.- Ladislas Lazaro, who assisted in the amputation of the plaintiff’s right index finger, also testified for the plaintiff. As a result of treating the plaintiff about nine times after the accident, Dr. Lazaro said that the plaintiff was incapable of doing moderate to heavy labor.

The third doctor to testify for the plaintiff was Dr. Frederick Mayer, the orthopedic surgeon who treated the plaintiff in the emergency room of the Opelousas General Hospital. Dr. Mayer, assisted by Dr. Lazaro, performed the repair work needed as well as the amputation. Dr. Mayer testified that the injury was serious and that the plaintiff would remain in pain. His prognosis for improvement of plaintiff’s hand was poor to fair.

The amount of pain an injured workman experiences is a question of fact and should not be disturbed if there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, unless such findings are clearly wrong. Newell v. United States Fidelity & Guaranty Co., 368 So.2d 1158 (La.App. 3 Cir. 1979); Conlay v. Houston General Insurance Co., 370 So.2d 196 (La. App. 3 Cir. 1979); Crump v. Hartford Accident & Indemnity Co., 367 So.2d 300 (La.1979).

Considering plaintiff’s lack of education, having only completed the third grade, and his inability to read and write, he cannot reasonably be expected to find a job except doing heavy manual work. We agree with the findings of the trial court that such work will likely cause plaintiff to suffer substantial pain. The evidence clearly establishes that plaintiff suffers substantial pain and his attempting to work could create a hazard for himself as well as for his fellow employees.

As we said in Phillips v. Dresser Engineering Co., 351 So.2d 304 (La.App. 3 Cir. 1977), if a workman has recovered from an injury to the extent that he could do some income-producing work, though not the same work as before the injury, he may not recover benefits as totally and permanently injured. However, a workman who is in substantial pain while working is considered to be totally and permanently disabled.

The trial judge determined that the plaintiff is entitled to statutory penalties and an attorney’s fee of $4,000.00 pursuant to R.S. 22:658. As stated in Basco v. State of La., Dept. of Corrections, 335 So.2d 457 (La.App. 1 Cir. 1976):

“La.R.S. 22:658 provides that failure of an insurer to make payment within sixty days of receipt of proof of loss from an insured, subjects the insurer to a penalty of 12% of the amount of the loss, as damages, together with reasonable attorney’s fees, where such failure is arbitrary, capricious or without probable cause. The provisions of the statute apply to numerous classes of insurance, including a claim for workmen’s compensation benefits. Whether failure to make compensation payments is arbitrary, capricious or without probable cause within the meaning of the statute in question, depends primarily upon circumstances existing and known to the insurer at the time compensation payments are refused or discontinued. Lee v. Smith, 248 La. 16, 176 So.2d 413; King v. Insurance Company of North America, La.App., 288 So.2d 878.”

In spite of written demands made to the insurer for workmen’s compensation benefits, no payments were tendered after April 21, 1977. At the time these benefits payments were halted plaintiff was still being treated by Dr. Lazaro, and there was no indication that the plaintiff could return to work. The trial court determined that the discontinuance of benefits was arbitrary and capricious. This is in part a factual determination and must not be disturbed unless manifestly erroneous. Stubbs v. Parish of East Baton Rouge, 343 So.2d 258 (La.App. 1 Cir. 1977). The determination here was certainly not manifestly erroneous.

Our complete review of the record establishes that the findings of the trial court are not manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The record very amply supports the findings of the trial court.

In his appellate brief, counsel for plaintiff has asked for an increase of attorney’s fees. However, plaintiff failed to timely answer the appeal seeking an increase in attorney’s fees, and accordingly, we are unable to consider such an increase. LSA-CCP Article 2133; Luna v. Atchafalaya Realty, Inc., 325 So.2d 835 (La.App. 1 Cir. 1976).

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

All costs of this appeal are taxed to the defendants-appellants.

AFFIRMED.

SWIFT, J., dissents as to the award of penalty and attorney’s fee, but otherwise concurs.

SWIFT, Judge,

dissenting in part.

I agree that the award of workmen’s compensation benefits for total and permanent disability should be affirmed, because I am unable to say that the trial judge was clearly wrong in this respect. However, I cannot subscribe to the view of the majority that the termination of workmen’s compensation benefits on April 21, 1977, was arbitrary, capricious or without probable cause and required imposition of the penalty and attorney’s fee under LSA-R.S. 22:658.

On April 20, 1977, the employer was furnished by plaintiff, a certificate from Dr. L. Lazaro, III, the attending physician, stating, “Pt. can return to work. Pt. has been discharged.” Of course, it was then obvious that Mr. Richard’s right index finger had been amputated and there was little function in his right middle finger. Nevertheless, despite a misunderstanding by the foreman as to just what work the plaintiff was to do that night, the employer was willing to put him back to work at a job he could perform at higher wages than he was earning before the accident, but he was unwilling to try to do so. There is testimony in the record that the employer had a number of jobs that plaintiff could perform, some with only one arm. At this time the employee had already been paid more compensation than LSA-R.S. 23:1221(4) provides for loss of his fingers or the permanent partial loss of use of his hand.

According to our supreme court in Crawford v. Al Smith P. & H. Service, Inc., 352 So.2d 669, 673 (La.1977):

“The penalty provision is stricti juris and should be imposed only in those instances in which the facts negate probable cause for nonpayment. Guillory v. Travelers Insurance Company, 294 So.2d 215 (La. 1974). When an insurer’s termination of compensation is based upon competent medical evidence, the action is not arbitrary and capricious. Levine v. Liberty Mutual Insurance Company, 305 So.2d 665 (La.App. 3d Cir. 1974).”

And in Steadman v. Pearl Assurance Company, 167 So.2d 527 (La.App. 4 Cir. 1964) the court said:

“The words arbitrary and capricious are practically synonymous and mean without reasonable cause and do not necessarily imply an opprobrious connotation. Arbitrary action is based upon one’s will and usually implies an abuse of one’s authority or power.”

On the basis of the information available to the employer at the time compensation benefits were terminated, I believe the trial judge was clearly wrong in finding that it had no reasonable cause to dispute the employee’s contention in regard to this subjective matter, that he was unable to perform any type of gainful employment because of substantial pain.

For these reasons, I respectfully dissent as to award under LSA-R.S. 22:658, but otherwise vote to affirm the judgment of the trial court.


author: CUTRER, Judge.

text:
    Donald DEVILLE, Plaintiff-Appellee-Appellant, v. Mr. and Mrs. Lloyd LaGRANGE, Defendants-Appellants-Appellees.
    No. 7120.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 1979.
    Rehearing Denied Feb. 4, 1980.
    Writ Granted March 21, 1980.

      Dubuisson, Brinkhaus & Dauzat, by Jerry J. Falgoust, Opelousas, for plaintiff-appellant-appellee.
    Poteet & Landry, Walter J. Landry, Lafayette, for defendants-appellees-appel-lants.
    Paul J. deMahy, St. Martinville, for defendant-appellee.

      Before CUTRER, STOKER and WARE, JJ.

       District Judge G. Bradford Ware, Fifteenth Judicial District Court, participated in this decision as Judge Ad Hoc.

   CUTRER, Judge.

Donald Ray Deville seeks by writ of ha-beas corpus to obtain custody of the minor, John Toby LaGrange, from Mr. and Mrs. Lloyd LaGrange. From the trial court judgment which decreed that Donald Ray Deville is the biological father of John Toby LaGrange, Mr. and Mrs. LaGrange appeal. Donald Ray Deville appeals from the judgment insofar as it awards custody of the child to Mr. and Mrs. LaGrange.

The issues presented on appeal are: (1) Whether the trial court erred in finding that Donald Ray Deville is the natural father of John Toby LaGrange, and (2) if Donald Ray Deville is the father, whether the trial court erred in awarding custody to Mr. and Mrs. LaGrange instead of Donald Ray Deville.

PATERNITY OF JOHN TOBY LaGRANGE

Donald Deville and Marie LaGrange began dating when they were in the tenth grade in high school. Donald lived in Opel-ousas and Marie lived in Arnaudville. After graduating from high school, their relationship continued and became sexually intimate. She went to college in Lafayette. After a short time, however, she terminated her schooling and moved back to Opelousas. A child was born to Marie on August 31, 1975, which she named John Toby La-Grange. Marie and Donald continued to see each other during this time, but never married.

After the birth of the child, and until her death on July 10, 1977, Marie and the child lived at several different places. She lived with Donald’s parents in Opelousas, with her brother and sister-in-law, with her parents in Arnaudville, and with a Donald Smith in Opelousas. At the time of Marie’s death, the child was living with the defendants, the maternal grandparents. Donald Ray contended that he was not allowed to see the child, thus, this suit was filed.

This suit was filed August 1, 1977 by Donald Ray Deville alleging his paternity of the child and praying for a writ of habeas corpus and for custody of the child. On August 3, 1977, Donald Ray Deville, by authentic act, acknowledged the child as being his. Mr. and Mrs. LaGrange answered the petition denying the paternity of Donald Ray Deville, asked for custody of the child, and asked that the writ of habeas corpus be discharged.

A lengthy hearing ensued resulting in a voluminous record. The testimony presented in behalf of the parties to the suit conflicts on almost every point.

The trial judge concluded that Donald Ray Deville by a preponderance of the evidence proved that he is the father of John Toby LaGrange.

In his ruling that Donald Ray was the father of the child, the trial judge gave the following in his reasons for judgment:

". . . There is no way to reconcile the conflicting testimony of both sides of this case, and consequently this Court has [had] a most difficult time determining who is telling the truth and who is not, and finding what the facts are. This Court is able, however, to sufficiently sift through the evidence and conclude that it preponderates in favor of plaintiff being the father of the child, but against him being awarded custody.
“Lelia Marie LaGrange said from the beginning that plaintiff was the father of her child; plaintiff apparently has always admitted that he was the father, on numerous occasions and to many people. The mother and child, in any view of the evidence, spent a great amount of time at the home of plaintiff’s parents. The photograph of the three of them (plaintiff’s exhibit no. 7) is a family-type photograph; it is not reasonable to infer that the mother would have included plaintiff in this photograph if he were not indeed the father, and likewise, he would not have wanted to be included in it if he were not. The blood tests, with the exception of Tommy Taylor who was not tested, exclude as possible fathers all those who defendants' evidence contends could be the father, while these tests do not exclude plaintiff; of course, it is academic that such tests are negative rather than positive in nature. The evidence clearly preponderates, then, in favor of plaintiff being the father of the child.”

When, as in this case, the evidence is conflicting, the reviewing court should not disturb the reasonable evaluation by the trial judge of one set of witnesses as credible, and its rejection of the opposing set of witnesses. The reviewing court should not disturb reasonable factual inferences drawn by the trial judge from such testimony found by him, to be credible. Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977); Canter v. Koehring Company, 283 So.2d 716 (La.1973); and Boatner v. McCrory Corporation, 341 So.2d 1174 (La. App. 1st Cir. 1977), writs ref’d, 343 So.2d 1075 (La.1977), and 343 So.2d 1078 (La.1977).

Mr. and Mrs. Lloyd LaGrange allege the trial court erred in not granting a new trial for the purpose of having Tommy Taylor submit to a blood test to determine whether he could have been the father. Mr. Taylor was not included in the blood tests given to four others including Donald Ray Deville. At the hearing, Taylor testified that he had sexual relations with Marie LaGrange during the period in which conception most likely occurred.

The trial judge denied the motion for a new trial. Mr. and Mrs. LaGrange argue that the trial court erred because he was required under LSA-R.S. 9:396 to order a blood test for Taylor.

LSA-R.S. 9:396 provides:

“Notwithstanding any other provision of law to the contrary, in any civil action in which paternity is a relevant fact, or in an action en desaveu, the court, upon its own initiative or upon request made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests . . . .” (Emphasis added)

The trial judge under LSA-R.S. 9:396 should deny the motion to compel a blood test if such motion would unduly delay the proceedings. We find that the trial judge was correct in denying the new trial because the request by the defendants for a blood test of Tommy Taylor was untimely since it came after the trial judge had rendered the judgment.

We shall affirm the trial court’s conclusion that Donald Ray Deville is the father of John Toby LaGrange.

CUSTODY OP JOHN TOBY LaGRANGE

The trial judge awarded custody of the child to Mr. and Mrs. LaGrange, the maternal grandparents.

The trial court concluded as follows:

". . . plaintiff is not fit to provide proper and necessary custody, and that he has forfeited his right to custody by neglect and abandonment, and by his mental unfitness to care for the child. It is considered that the best interest and welfare of the child dictates that custody remain with . . Mr. and Mrs. La-Grange.”

The father, Donald Ray Deville, argues that the trial court cited the correct rules regarding custody of the child but misapplied them to the facts. It is his position that the defendants did not present any evidence of the unsuitability of Deville to have custody of the child.

The custody issue herein is a situation where a parent (natural father) is competing with non-parents (maternal grandparents). The law is well established in this area. In the recent case of Tolar v. Cunningham, 368 So.2d 1188 (La.App. 3rd Cir. 1979), this court, faced with a similar issue and citing the case of Wood v. Beard, 290 So.2d 675 (La.1974), set out the law in this regard.

“. . . Wood involved a habeas corpus action brought by the mother against the maternal grandparents seeking custody of her infant child. The Supreme Court granted the writ and ordered custody be given to the mother of the child. In so holding, the court reasoned that when parents compete with non-parents for custody of a child, ‘the parent’s right to custody is superior, unless the parent is unable or unfit, having forfeited parental rights.’ The court further held that the non-parent had the heavy burden of showing the disqualification and unfitness of the parent. Hence, it can be seen that, without lessening the effect and force of the ‘best interests of the child’ test in a custody contest between a parent and non-parents, the Supreme Court recognizes a rebuttable presumption that the child’s best interests are better served by awarding custody to the parent.” 368 So.2d 1188, at 1190.

We are well aware of the rule that the trial court’s determination in custody cases is entitled to great weight and will not be disturbed in the absence of manifest error. In the application of the law to the facts herein, however, we conclude that the defendants have not produced the evidence necessary to overcome the presumption afforded to the parent by law, thus, the trial court committed manifest error in making an award to the defendants.

In reaching its conclusion, the trial court placed special emphasis upon the fact that Donald Ray had failed to marry Marie, thereby causing the child to be born illegitimate. The court, along these same lines, pointed out that the relationship between Donald Ray and Marie began to decline after the birth of the child. The trial court further placed emphasis upon the fact that Donald Ray had moved to Baton Rouge, where he was employed, instead of remaining in Opelousas with the mother and child. The court further criticized Donald Ray for dating other girls while Marie and the child lived with his parents.

As to the relationship between Donald Ray and Marie, the law did not impose any obligation upon Donald Ray to marry Marie. Without such legal duty or obligation, the lack of such marriage cannot serve as a basis for concluding that Donald Ray has abandoned or neglected the child, nor that he is unfit to have custody of the child.

The trial court further indicates that Donald Ray’s move to Baton Rouge where he was employed reflects a lack of interest in the child and, thus, the trial court considered this as evidence of abandonment.

In the fall, after finishing high school, Donald Ray found employment in Baton Rouge with Delta Southern where he worked for 3V2 years and was still employed there at the time of trial. The record reflects that at the beginning of such employment he commuted each day between Opel-ousas and Baton Rouge. After commuting for a few months, he then went to live with his brother in Baton Rouge and later obtained an apartment there of his own. On weekends, he would return to Opelousas, visiting with his parents, Marie and his son. The trial court felt that Donald Ray’s visitation with the child, however, was merely an incident to Donald’s visit with his parents where Marie and the child were living at the time. The conclusion that Donald’s visits each weekend were primarily to visit his parents, and not the child, is not supported by the evidence.

As late as April 1977, the record reflects that Donald Ray and Marie, by appointment with a priest, Rev. Ronald Braud, sought counsel as to the possibility of their marriage. Father Braud testified that Donald Ray wanted to know how to legitimate the child. Father Braud further testified that he had seen Donald Ray, Marie and the child at mass several times in Ar-naudville and Opelousas.

The record also reflects that during 1977 Donald Ray’s parents proposed to adopt the child. Donald Ray refused to consent to the adoption stating that he didn’t want to give up his rights to the child. This evidence reflects a continuing interest in the child by Donald Ray which, when considered along with the frequent visits with his son at his parents’ home on weekends, convinces this court that Donald Ray had not abandoned the child.

As an example of the jurisprudence in this regard, in the case of Truelove v. Truelove, 350 So.2d 969 (La.App. 2nd Cir. 1977), the court found that the father had not abandoned his child because, though the child was living with the father’s parents, the father visited the child at least every other weekend and on holidays.

The trial court also gave as a reason for refusing custody to Donald Ray, that Donald Ray did not provide significant support for the child. Donald Ray testified that he gave Marie some money from time to time but was uncertain as to the amounts and times. The record supports the trial court’s conclusion that Donald Ray’s support payments were not of a significant sum. The record reflects that Marie and the child were supported by welfare payments and the assistance and care of both the paternal and maternal grandparents. Donald Ray admitted that he collaborated with Marie (by helping her rent an apartment) in order that Marie and the child would qualify for welfare payments as support.

Donald Ray’s lack of significant support and substituting in lieu thereof (by collaboration with Marie) the welfare payments for such support, was wrong and a serious error of judgment. We do not view it, however, as an intent to abandon the child. Denial of custody to Donald Ray cannot be used as a punishment for the past wrong committed by him against the Division of Family Services. The parent is not to be punished for his past behavior. Gautreaux v. Allen, 345 So.2d 103 (La.App. 1st Cir. 1977).

The trial court felt that Donald Ray did not make any serious effort to visit the child while it lived at the home of defendants. We agree that Donald Ray made no serious effort to visit the home of defendants. It is very doubtful that he would have received any cooperation from defendants as the record indicates that a strained relationship had developed between Donald Ray and defendants.

It has been suggested that Deville’s request for the custody of his son is motivated by a desire to receive the social security income due John Toby, rather than a true love of the child. It has also been suggested that the paternal grandparents are the parties who are really seeking custody through their son. Those speculations, regarding the motives of the father, are not supported by the evidence. As stated in Tolar v. Cunningham, supra:

". . . Moreover, we doubt that the legal precepts we must follow in this context can be overridden by such things as suspect (and only suspect) motives and interfamily feeling or spiteful action.”

Donald Ray testified that if he is awarded custody of the child, he planned to move back to the home of his parents in Opelousas and commute to and from his job in Baton Rouge. Donald Ray’s employment is steady and he earns $15,000.00 per year which provides ample income for the support of the child. The trial court found that Donald Ray’s parents’ home was as suitable as the defendants’ home to provide for the child. The record fully supports this finding. While it is true that Deville may be unable to provide a home for his child without the assistance of his parents, by their caring for the child while he works, this does not mean that he is unfit to provide a home for the child. Tolar v. Cunningham, supra; Neal v. White, 362 So.2d 1148 (La.App. 2nd Cir. 1978), writs den., 365 So.2d 243 (La.1978).

We conclude that the reasons set forth by the trial court do not justify the conclusion that Donald Ray is unfit to have custody of his son, nor do such reasons reflect that he has forfeited his rights to the custody of his son by neglect or abandonment. In the case of Henderson v. Spears, 292 So.2d 801 (La.App. 1st Cir. 1974), the court held as follows:

. . The jurisprudence of this state has always held that its abandonment statutes, like its adoption statutes, must be construed strictly, with a decree of abandonment being entered only where ‘the evidence clearly shows manifestation of an intent to permanently avoid parental responsibility and all reasonable doubt should be resolved against entering such a decree.’ In re State of Louisiana in Interest of Sharp, 219 So.2d 317 (La.App. 1st Cir. 1969).”

The defendants have failed, under the jurisprudence to carry their heavy burden of showing the unfitness of Donald Ray to have custody, or the abandonment or neglect of the child by Donald Ray, which would disqualify him from having custody of his son. The trial court’s award of the custody of John Toby to the defendants must be reversed.

For these reasons, we affirm the trial court's judgment insofar as it decrees Donald Ray Deville to be the biological father of John Toby LaGrange. The judgment of the trial court is reversed insofar as it grants custody to Mr. and Mrs. Lloyd La-Grange, and it is ordered that the child, John Toby LaGrange, is to be placed in the custody of the plaintiff, Donald Ray De-ville. All costs are to be borne by defendants, Mr. and Mrs. Lloyd LaGrange.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.


text:
    Dr. Lee J. MONLEZUN, Plaintiff-Appellant, v. Rhonda FONTENOT, Defendant-Appellee.
    No. 7158.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 1979.
    Levingston, Ezell, Liles & Tynes, Henry R. Liles, Lake Charles, for plaintiff-appellant.
    Rhonda Fontenot, in pro. per.
    Before CUTRER, STOKER and WARE, JJ.

       District Judge G. BRADFORD WARE, Fifteenth Judicial District Court, participated in the decision of this case as Judge Ad Hoc.

   CUTRER, Judge.

This is an appeal from a default judgment for the amount of $278.50 taken by plaintiff Dr. Lee J. Monlezun against defendant Rhonda Fontenot.

The petition styled “Petition on Open Account” was filed alleging that the indebtedness arose out of medical services which had been rendered to defendant by the plaintiff over a period of time reflected in the itemized account attached to the petition showing a balance of $278.50. The plaintiff also requested an additional amount of 25% attorney’s fees. A preliminary default was duly entered. On January 22, 1979, the minutes of the trial court reflect as follows:

******
“Dr. Lee J. Monlezun Case called on for confirma-Vs. No. 78-7343 tion of default. Evidence Rhonda Fontenot adduced, and the Court informs Henry R. Liles Esq., counsel for plaintiff that all divisions of this Court have concluded that fees for physicians’ services are not open accounts; hence, no attorney’s fees will be awarded. On motion of Mr. Liles, the whole matter is withdrawn.’’

Attached to the petition was a copy of the itemized statement and a copy of a letter of demand along with a returned receipt. Introduced into evidence was an affidavit of correctness executed by plaintiff. Since the trial court ruled that fees for a physician’s services could not be considered an open account, the plaintiff could not proceed under the provisions of LSA-C. C.P. art. 1702, which provides as follows:

“A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. . . .”
“When the sum due is on an open account, ... an affidavit of the correctness thereof shall be prima facie proof.”

Plaintiff’s attempt at confirmation was thus withdrawn.

On January 29, 1972, plaintiff filed a Request for Admission of Facts addressed to defendant. The defendant was requested to admit the truth that the plaintiff performed services on her behalf; that she received the invoice for such services in the amount of $278.50; and that such sum was owed by defendant. Notice of same was served on defendant February 9, 1979. No answers to the requests were filed by defendant. On March 12,1979, plaintiff again appeared in the trial court for confirmation of default. In addition to the itemized copy of the account, pleadings, letter of demand, and affidavit of correctness, the request for admissions was presented to the court and judgment was entered, but the attorney’s fees were denied.

The plaintiff contends that the suit is one on open account and that he is entitled to confirm the default under the provisions of LSA-C.C.P. art. 1702, and is entitled to be awarded attorney’s fees under the provisions of LSA-R.S. 9:2781. This latter provision reads, in part, as follows:

“When any person fails to pay an open account within thirty days after receipt of written demand therefor correctly setting forth the amount owed and a copy of the invoices in support thereof, that person shall be liable for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant.”

The issue presented is whether LSA-R.S. 9:2781, which allows reasonable attorney’s fees to a successful creditor suing on an open account, is applicable to the account owed to plaintiff-physician.

Rhonda Fontenot was apparently a patient of Dr. Monlezun. The ledger summary of Rhonda Fontenot’s account filed with the petition, as reproduced below, reflects several visits to Dr. Monlezun with services rendered by the physician. Charges were made for services rendered by plaintiff. The ledger summary also reflects several periodic payments by Mrs. Fontenot. The services extended over a period of approximately one year.

In the case of Colonial Products Company v. Park Place Homes, Inc., 282 So.2d 574 (La.App. 4th Cir. 1973), the court concluded that an open account existed in “a situation where there [had] been running or current dealings between the parties and the account [had] been kept open with the expectation of further dealings.”

This description of an “open account” is in accord with the definition found in 1 C.J.S. Accounts, pp. 574-575, which reads as follows:

“An open account is one in which some item of contract is not settled by the parties, or where there have been running or current dealings between the parties and the account is kept open with the expectation of further dealings. In other words, it is an unsettled debt arising from items of work and labor, goods sold and delivered, and other open account transactions not reduced to writing, and subject to future settlement and adjustment..."

In the recent case of Management Research, Ltd. v. Taylor, 373 So.2d 755 (La. App. 3rd Cir. 1979), this court allowed attorney’s fees for medical services under LSA- • R.S. 9:2781. The suit did not involve a confirmation of default but grew out of medical charges involved in a companion workmen’s compensation case, which suit was tried on its merits. Allowing attorney’s fees for the collection of physician’s fees, this court made the following observation:

“On appeal, Foster makes the additional argument that Management Research, Ltd. made no appearance at the trial and introduced no evidence in support of its claim for the amount due on the open account for medical services furnished. We find no merit to this argument. The statements for the medical services rendered totaling $922 are filed in evidence and are corroborated by the testimony of the physicians and their bookkeeper. Demand was made for the payment of this open account on September 11, 1976, and defendant failed and refused to pay. Twenty-five per cent attorney’s fees on the open account is a reasonable amount which the court had the discretion to award under LSA-R.S. 9:2781.”

The itemized account herein contains the elements of an open account. There had been a running or current dealing (medical services and periodic payments made therefor) between the physician and patient. The account had been kept open for further dealings (various medical services).

We hold that the medical services rendered herein and the ensuing account of same, constitutes an “open account” and the physician may proceed by default judgment according to Art. 1702 and, having made the proper demand, shall be allowed reasonable attorney’s fees according to provisions of LSA-R.S. 9:2781. We conclude that an additional allowance of twenty-five (25%) percent for attorney’s fees would be reasonable.

For the reasons assigned, the judgment of the trial court is amended by awarding an additional twenty-five (25%) percent as attorney’s fees. In all other respects the judgment is affirmed. Costs of this appeal shall be assessed to defendant-appellee.

AMENDED AND AFFIRMED.

      . Apparently, the request for admission was necessary to conform with the requirements of LSA-C.C. art. 2277, which provides as follows:
      “All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.”

      .
      PATIENT # 10286 RHONDA FONTENOT ROUTE 5 BOX 1436 LAKE CHARLES, LA. 70601 SUMMARY LEDGER CARD # 1 CLIENT # 005004 FROM 10-01-77 TO 09-28-78 PATIENT PHONE 318-855-2851 CLINIC LEE J. MONLEZUN, JR. MD. FACOG LAKE CHARLES, LA. 70601
      DR DATE— TRACE- - IDENT- ■ CODE — DESCRIPTION-CHARGE PAYMENT
      10-21-77 00000 AUTO CHG **DR STATEMENT PREPA .50
      11-21-77 00000 AUTO CHG **DR STATEMENT. PREPA .50
      01 12-19-77 24926 RHONDA FON CA CASH PAYMENT 38.00
      01 02-27-78 26297 RHONDA FON 03 6 MONTH EXAM B- 15.00
      01 02-27-78 26297 RHONDA FON CA CASH PAYMENT 15.00
      01 03-15-78 18602 RHO FON 4647 DEC 200.00
      01 03-15-78 18603 RHO FON 0026 MINOR GYN SURGE 100.00
      01 03-30-78 21414 RHONDA FON POST POST OP VISIT
      01 03-30-78 21414 RHONDA FON INJ INJECTION 6.00
      01 04-25-78 32798 RHONDA FON POST POST OP VISIT
      01 04-25-78 32798 RHONDA FON CA CASH PAYMENT 10.00
      04-26-78 00000 AUTO CHG **DR STATEMENT PREPA .50
      05-24-78 00000 AUTO CHG **DR STATEMENT PREPA .50
      01 06-02-78 33711 RHONDA 4510 PELVIC EXAM 10.00
      01 06-02-78 33711 RHONDA 59 WET MOUNT 5.00
      01 06-02-78 33711 RHONDA CA CASH PAYMENT 15.00
      06-28-78 00000 AUTO CHG **DR STATEMENT PREPA .50
      01 07-19-78 23304 RHONDA FON CK CHECK PAYMENT 20.00
      07-26-78 00000 AUTO CHG **DR STATEMENT PREPA .50
      08-25-78 00000 AUTO CHG **DR STATEMENT PREPA .50
      09-22-78 00000 AUTO CHG **DR STATEMENT PREPA .50
      01 09-25-78 27301 RHONDA AX WRITE-OFF 278.50
      SUMMARY
      BEGIN BAL CHARGES CHRG-ADJ. PAYMENTS PAY-ADJ. BAL-DUE
      37.00 336.00 4.00 98.00 278.50 .50
      *** STATUS NOTES-