text:
    STATE of Louisiana v. Frankie Lee SENSLEY.
    No. KA 84 0313.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Rehearing Denied Dec. 28, 1984.
    Writ Denied March 15,1985.

      William E. Woodward and William G. Carmichael, Asst. Dist. Attys., Clinton, for plaintiff-appellee.
    Johnny E. Wellons, Baton Rouge, for defendant-appellant.
    Before COLE, CARTER and LANIER, JJ.
   LANIER, Judge.

Defendant, Frankie Lee Sensley, was charged by grand jury indictment with aggravated rape in violation of La.R.S. 14:42. He pled not guilty and, after a trial by jury, was found guilty as charged. The district court judge sentenced Sensley to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence in the custody of the Louisiana Department of Corrections. This appeal followed.

FACTS

The victim was employed as a bartender at a lounge near the Town of Clinton in East Feliciana Parish, Louisiana. On May 21, 1983, she left work at approximately 7:30 p.m. As she was driving home, her car stopped and she could not get it restarted. She waited for ten minutes, but no one stopped to help her. She began to walk towards Clinton. She stopped at a house and knocked, but no one answered. She continued on until she came to a grocery store where she used a pay phone located outside the store to call her husband. She hung up the phone, turned around and saw a man standing behind her. He offered to help; she declined, saying she was going to find a house with some lights on. The man continued to insist. The man then said, “Get in the car bitch. I’ve got a 7mm. I’ll kill you.” He then shoved her into a waiting car and drove her to a vacant field. When they arrived at the field, the man told her to take off her clothes. The victim refused and struggled with the assailant for some time. During the struggle, the victim was slammed against the wall of the car and choked until she could not breathe. The victim was pushed into the back seat of the car and raped. The man then drove her to where her car was parked, left her and fled the scene. Shortly thereafter, a policeman stopped, and the victim told him what had happened. The victim’s husband then arrived at the scene.

Clayton Ethridge, a parttime deputy with the East Feliciana Parish Sheriff’s Department, testified that on May 21, 1983, he found an abandoned vehicle on Highway 10 west of Clinton. He went back to the Sheriff’s Department to check the license plate. He returned to the vehicle at approximately 8:25 p.m. When he arrived, a woman jumped out of the car and told him that she had been raped. Deputy Ethridge called Deputy Delmas Bell.

Delmas Bell, a deputy with the East Feli-ciana Parish Sheriff’s Department, testified that when he arrived on the scene the victim was in a “hysterical condition”. He took the victim to the Feliciana Medical Center where she was examined. After this, the victim went with Deputy Bell in his car and pointed out where the assailant had initially approached her, at Farrar’s Supermarket at the corner of St. Helena and Banks Streets in Clinton, Louisiana. She also directed him to the location where the rape took place. Deputy Bell collected the victim’s blouse and underwear as evidence.

Deputy Bell also testified that he went to the home of Donald L. Dyer, Jr. to arrest defendant for nonsupport. While he was there, he noticed that the car in the yard resembled the description of the car the rapist had used. Deputy Bell learned that the vehicle belonged to Dyer and obtained his permission to search it. He subsequently took the vehicle into custody and turned it over to the State Police Crime Laboratory.

Donald L. Dyer, Jr. testified that he had loaned his car to defendant on the night of May 21, 1983.

Dr. John F. Piker, the Parish Coroner, testified that he examined the victim at approximately 9:10 p.m. on May 21, 1983. She appeared to be anxious and apprehensive and told him she had been raped. There were three abrased areas on the left side of the neck and one abrased area on the right side of the neck. There was congealed ejaculate present on the victim’s pubic area. There were no tears or lacerations within the vagina; however, the area was “reddened and injected”. Fluid asper-ated from the victim’s vagina revealed multiple sperm present; only one motile (live) sperm was found. The victim’s pubic area was combed and a hair that appeared differently from the victim’s hair was found. At a later date, blood and sputum samples were taken from the victim. On May 25, 1983, Dr. Piker took blood, sputum and pubic hair samples from the defendant.

Jerry Miller, a forensic scientist with the Louisiana State Police Crime Lab, testified that he searched the Dyer car. He found a white two hole button, blue synthetic and cotton fibers and white synthetic fibers in the rear seat and floor area of the car. These items were compared to buttons and fibers from the blouse the victim wore the night of the attack. Miller testified that the button found in the car and the buttons, on the blouse were the same type and the fibers found in the car and the fibers taken from the blouse were microscopically identical.

Miller testified that he compared pubic hair found in the back seat of the car with pubic hair taken from the victim and found them to be microscopically identical. He compared the one strand of foreign pubic hair found on the victim with the pubic hair taken from the defendant and found them to be mierosopically identical.

Finally, Miller testified that he performed several serological tests. As a result of these tests, he determined that the victim was a type O-secreter, and the defendant was a type A-secreter. The ejaculate found on the victim was from a type A-secreter. The vaginal aspirate taken from the victim contained seminal fluid from a type O-secreter.

Defendant testified that he was in Clinton on May 21, 1983, to attend a class reunion meeting held at Matthews’ Cafe and Bar. At approximately 8:00 or 8:15 p.m., he left Matthews’ Cafe and went to an Amoco gas station. He then continued across town to Davis’ Cafe and Bar. He arrived at Davis’ Cafe at approximately 8:30 or 8:45 p.m. He stayed at Davis’ Cafe until 2:15 a.m. Defendant testified that he was wearing a pair of jeans and a light yellow shirt. He was driving Donald Dyer's car on that night.

Melvin Matthews testified that he was present at the class reunion meeting held at Matthews’ Cafe on May 21, 1983. Matthews’ testimony was unclear as to when he left the cafe. However, Matthews stated that defendant left the cafe just before he did and that when he (Matthews) reached Davis’ Cafe, defendant was already there. Matthews remembered defendant as wearing a solid light color shirt.

Yvonne Quiett was also present at the class reunion meeting. She testified that she saw Sensley at the class reunion meeting which ended at about 7:15 or 7:20 p.m. Sensley stayed at Matthews’ Cafe after the meeting. She subsequently saw Sensley at Davis’ Cafe. She left Davis’ between 10:30 and 11:00 p.m.

SUFFICIENCY OF EVIDENCE

(Assignments of Error 9 and 10)

In assignment of error 9, Sensley contends that the State failed to prove beyond a reasonable doubt that there was sexual penetration because the type O-secreter sperm found in the aspirate from the victim’s vagina and in her panties could not have come from him because he is a type A-secreter. In assignment of error 10, Sensley contends that the district court committed error by denying his motion for post-verdict judgment of acquittal because, in addition to the claim made in assignment of error 9, the victim testified the defendant had a multi-colored shirt and a green ear when in fact he wore a light colored shirt and drove a gray car on the night in question.

In State v. Mathews, 375 So.2d 1165 (La.1979), a majority of the Louisiana Supreme Court determined that the United States Supreme Court case of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) required that the standard of review when considering the sufficiency of the evidence to support a criminal conviction is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This standard for the appellate review of facts in criminal cases has been made statutory. La.C.Cr.P. art. 821; State v. Captville, 448 So.2d 676 (La.1984); State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983).

At the trial, the victim made a positive in-court identification of Sensley as the person who raped her. Under cross-examination by Sensley’s counsel, the victim also testified that she identified Sensley from a photographic lineup presented to her by police officers shortly after the crime. Sensley’s defense was one of alibi wherein he claimed that he was at a meeting for a class reunion at Matthews’ Cafe and subsequently was at Davis’ Cafe during the time when the offense was committed. The verdict indicates that after considering the credibility of the witnesses and weighing the evidence, the jury accepted the testimony of the victim and rejected the alibi evidence presented by the defendant. Where there is conflicting testimony about factual matters, the resolution of which depends on a determination of the credibility of the witnesses, this is a matter of the weight of the evidence, not its sufficiency. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); State v. Kent, 434 So.2d 1258 (La.App. 1st Cir.1983), writ denied, 440 So.2d 727 (La.1983). A determination of the weight of the evidence is a question of fact. State v. Norman, 448 So.2d 246 (La.App. 1st Cir.1984); Korman, 439 So.2d at 1101. This court has no appellate jurisdiction to review questions of fact in criminal cases. La.Const. of 1974, art. V, § 10(B). This court is constitutionally precluded from acting on an appeal as a “thirteenth juror” in assessing what weight to give evidence — that determination rests solely on the sound discretion of the trier of fact. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. McDowell, 427 So.2d 1346 (La.App. 2nd Cir.1983); Holmes v. Southeastern Fidelity Insurance Company, 422 So.2d 1200 (La.App. 1st Cir.1982), writ denied, 429 So.2d 133 (La.1983).

The testimony of the victim and the corroborating evidence introduced by the State are sufficient to prove the offense charged. State v. Rives, 407 So.2d 1195 (La.1981); Norman, 448 So.2d at 249.

In support of these assignments of error, defendant points to conflicting testimony concerning the type of shirt worn by the assailant and the color of the car driven by the assailant. The victim testified that the assailant wore a “multicolored silk looking shirt”. Defendant testified that he had on a light yellow shirt. Melvin Matthews and Yvonne Quiett testified the defendant was wearing a light colored shirt on the night of the attack. The victim testified that the assailant was driving a dark green car. Donald L. Dyer, Jr. testified that on the night of the attack he lent his blue and gray Buick Regal to the defendant. Such conflicting testimony does not constitute insufficient evidence of the crime. See, for example, State v. Cage, 444 So.2d 347 (La.App. 1st Cir.1983), writ denied, 446 So.2d 1214 (La.1984).

Next, defendant argues that the vaginal aspirate taken from the victim and her panties contained semen from a type O-secreter, while defendant is a type A-secreter. Thus, defendant contends that the State failed to prove beyond a reasonable doubt that he committed the crime. Jerry Miller, the forensic scientist with the Louisiana State Police Crime Lab, testified that the vaginal aspirate taken from the victim contained semen from a type O-secreter and therefore could not have come from defendant who is a type A-secreter. The victim testified that she was married at the time of the incident, but the record does not reflect her husband’s blood type. See, for example, State v. Langendorfer, 389 So.2d 1271 (La.1980). However, Miller also testified that the congealed ejaculate found on the victim was from a type A-secreter and therefore could have come from defendant.

Finally, defendant argues that there was no evidence of sexual penetration, an element of the crime of rape. Dr. John Piker, the physician who examined the victim following the attack, testified that “the physical examination showed that there had been recent intercourse.” In addition, the record reveals that the victim testified as follows:

Q [D]id the defendant have sexual intercourse with you?
A Yes.
Q And do you know what penetration means?
A Of course, yes.
Q Did he penetrate?
A Yes.

These assignments of error are without merit.

DENIAL OF CONTINUANCE MOTIONS

(Assignment of Error 1)

The defendant contends that the district court committed error by failing to grant two continuance motions filed by him.

The offense occurred on May 21, 1983. Sensley testified that he was arrested at 10:35 p.m. on May 23, 1983, for criminal neglect of family and was charged with aggravated rape on May 25, 1983. The court minutes show that Sensley had a hearing pursuant to La.C.Cr.P. art. 230.1 on May 26, 1983, and Richard C. Howell was his court-appointed counsel. On June 3, 1983, Sensley was indicted for aggravated rape by the East Feliciana Parish grand jury. Also on June 3, 1983, Sensley’s court-appointed counsel filed a Brady motion, a motion for a preliminary examination and a motion for a bill of particulars, discovery and inspection (containing 61 interrogatories) on his behalf. On June 13, 1983, Sensley was arraigned with his court-appointed counsel, pled not guilty and a trial date of October 10, 1983, was fixed. On June 22, 1983, a motion for preliminary hearing and bond reduction was filed on behalf of Sensley by an apparently retained counsel, C. Alvin Tyler. On July 12, 1983, Sensley, through his retained counsel (C. Alvin Tyler), withdrew the motion for a preliminary examination and proceeded to trial with the motion for bond reduction. After hearing testimony, the bail for the aggravated rape charge was reduced from $150,000 to $100,000. On September 27, 1983, Johnny E. Wellons enrolled as counsel of record for Sensley and filed a motion for a continuance of the October 10, 1983 trial date asserting that he needed additional time to familiarize himself with the case, prepare a defense and file various motions. (This motion does not state what motions he intended to file.) On October 10, 1983, Johnny E. Wellons filed a second motion for continuance on behalf of Sensley contending that he did not have sufficient time to interview witnesses, that he needed additional time to complete his investigation and that his witnesses had not been served. The motions for continuance were heard by the district court prior to the commencement of the trial on October 10, 1983, and were denied. The court minutes indicate that the motions for continuance were heard on argument of counsel and do not reflect that evidence was taken on the motions.

A continuance is the postponement of a scheduled trial. La.C.Cr.P. art. 708. When a motion for a continuance is based upon the absence of a witness, it must state the facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial; facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and facts showing due diligence used in an effort to procure attendance of the witness. La.C.Cr.P. art. 709. The motions for continuance filed on behalf of Sensley do not contain such allegations.

The jurisprudence interpreting La.C.Cr.P. arts. 707 and 712 holds that the granting or refusal of a motion for continuance rests within the sound discretion of the trial judge, and his ruling will not be disturbed on appeal absent a clear abuse of discretion. Whether a refusal to grant a continuance was justified depends primarily on the circumstances of the particular case. Convictions will not be reversed absent a showing of specific prejudice caused by the denial of a continuance. State v. Gaskin, 412 So.2d 1007 (La.1982); State v. Shields, 444 So.2d 287 (La.App. 1st Cir. 1983), writ denied, 446 So.2d 312 (La.1984). Although Sensley contends in brief that he needed more time to find witnesses to corroborate his testimony and that witnesses he subpoenaed were not notified of the trial, he does not specifically state who these witnesses are, what specific facts they would testify to and how specifically their absence prejudiced his presentation of the case. Under these circumstances, Sensley has failed to show that the district court judge abused his discretion. State v. Willie, 410 So.2d 1019 (La.1982); State v. Haarala, 398 So.2d 1093 (La. 1981).

In addition, a defendant in a criminal case cannot exercise his right to counsel in a way that will obstruct the orderly procedure of the courts and interfere with the fair administration of justice. A criminal defendant must exercise his right to counsel of his choice at a reasonable time, in a reasonable manner and at an appropriate stage of the proceedings. State v. Seiss, 428 So.2d 444 (La.1983); State v. Champion, 412 So.2d 1048 (La.1982). The record reflects that the defendant had court-appointed counsel shortly after he was arrested and when he was arraigned. The defendant retained counsel of his own choosing three and one-half months prior to the trial date. There is no evidence in the record to show why it was necessary for the defendant to change retained counsel shortly before the commencement of the trial. Absent a justifiable basis, there is no constitutional right to make a new choice of counsel on the eve of trial with the attendant necessity of a continuance and its disrupting implications. Seiss, 428 So.2d at 447.

This assignment of error is without merit.

IN-COURT IDENTIFICATION OF DEFENDANT BY VICTIM

(Assignment of Error 2)

On the day trial commenced, counsel for Sensley filed a motion for in-court identification of the defendant by the victim alleging that she “can not identify defendant from anyone else.” The court minutes indicate that this motion was heard on “argument of the counsel” and was denied by the district court prior to the commencement of the trial. Counsel for Sensley contends that the ruling of the district court was error because “Louisiana jurisprudence allows the defendant an opportunity to file a motion for in-court identification lineup with other men similarly situated.” An accused has no constitutional or statutory right to a pretrial or in-court lineup. A district court has broad discretion to order such a lineup in the interest of the fairness of the identification of the defendant, upon proper showing of an exceptional nature that otherwise the trial testimony as to his visual identification may not be reliable. State v. Boettcher, 338 So.2d 1356 (La.1976).

The specific contentions raised by the defendant in this assignment of error were disposed of in State v. Drew, 360 So.2d 500, 516 (La.1978) as follows:

During trial, the state asked the rape victim if the rapist was present in court. Defendant objected to an in-court identification on the ground that he was one of only two black men in the courtroom and was the only black man seated at counsel table. He requested an in-court lineup identification. The trial judge overruled the objection and did not allow the in-court lineup. Subsequently, the victim identified defendant as the rapist. On cross-examination, defendant questioned her extensively concerning her ability to see the rapist before, during and after the offense.
In State v. Johnson, 343 So.2d 155 (La.1977), this court stated:
... It is true that the conspicuous display of the defendant alone in the accu-satorial spotlight might dispel the doubts of some uncertain witnesses. However, ‘this circumstance does not indicate or unduly suggest to the witness that defendant committed the crime, only that he is charged with its commission.’ State v. Daniels, 326 So.2d 340, 343 (La.1976). In Daniels, supra, and State v. Brooks, 294 So.2d 503 (La.1974), the court suggested that counsel’s right to cross-examine and question the weight to be given identification testimony was sufficient to remedy any suggestion inherent in the in-court identification process. State v. Boettcher, 338 So.2d 1356 (La.1976).
State v. Boettcher, supra, and State v. Jackson, 338 So.2d 1363 (La.1976), held that a trial judge had the discretion to grant an accused’s request for a pre-trial line-up, but did not alter the rule that a defendant is not entitled to an in-court line-up. The decision whether such a protective measure is required is entrusted to the trial court’s discretion:
‘The trial court likewise has broad discretion to order protective measures' other than a pretrial line-up, such as by seating the defendant elsewhere than in the normal place of an accused in the courtroom.’ State v. Boettcher, 338 So.2d 1356, 1361.
In the instant case, the fact that defendant was the only black man seated at counsel table does not render the in-court identification inadmissible, although this factor is one to be considered by the jury in weighing the testimony of the in-court identification. See State v. Daniels, 326 So.2d 340 (La.), cert. denied, 429 U.S. 846, 97 S.Ct. 128, 50 L.Ed.2d 117 (1976). Defendant had ample opportunity to extensively cross-examine the victim, a sufficient remedy to any suggestion inherent in the in-court identification process. See State v. Johnson, supra; State v. Daniels, supra. Hence, the trial judge did not err in overruling defendant’s objection to the in-court identification as conducted.

The victim testified that she was in the presence of her attacker from the time he forced her into his car until he returned her to her car and that she was positive that the defendant was the man who raped her. The defendant had ample opportunity to cross-examine the victim concerning her identification of him. This was sufficient to remedy any suggestion inherent in the in-court identification procedure.

This assignment of error is without merit.

ADMISSIBILITY OF EVIDENCE SEIZED IN DYER VEHICLE

(Assignments of Error 3 and 4)

In assignment of error 3, Sensley contends that the evidence taken from the Dyer vehicle was not admissible because after the vehicle was seized by Deputy Bell it remained overnight in an unlocked, unsupervised area where anyone could have broken into the car and tampered with it. In assignment of error 4, Sensley contends that evidence taken from the Dyer automobile at the State Police Crime Lab was inadmissible because Deputy Bell lost sight of the car when it was enroute to the lab and Deputy Kilbourne, who was driving the car, did not testify at the trial.

The law applicable to the admissibility of demonstrative evidence is set forth in State v. Sweeney, 443 So.2d 522, 528 (La.1983), as follows:

To admit demonstrative evidence at trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered in evidence. State v. Drew, 360 So.2d 500 (La.1978). The law does not require that the evidence as to custody eliminate all possibilities that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient.

See also State v. Tonubbee, 420 So.2d 126 (La.1982).

Donald L. Dyer, Jr. testified that he lent his Buick automobile to Sensley on the night of May 21, 1983. Sensley returned the vehicle to Dyer’s possession where it remained until May 25, 1983, when its possession was given to Deputy Delmas Bell.

Deputy Bell testified that he took the vehicle into custody at 11:09 p.m. on May 25, 1983. The vehicle was a 1977 Buick Regal with license number 147X793. Deputy George Kilbourne drove the vehicle from Dyer’s home to Bell’s home. Bell followed Kilbourne, and the vehicle was in his sight from the time he left Dyer’s until he reached his home. The vehicle was parked in Bell’s garage and the garage was locked. Only Bell and his wife had access to the garage. Bell testified that to his knowledge no one tampered with the vehicle but admitted that he could not swear that the vehicle was not tampered with at his home. On the morning of May 26, 1983, Deputy Kilbourne drove the Dyer vehicle from Bell’s home to the Louisiana State Police Crime Lab in Baton Rouge, Louisiana. Bell followed Kilbourne in another vehicle. Bell lost sight of the Dyer vehicle in traffic after arriving in Baton Rouge but before reaching the crime lab. When Bell arrived at the crime lab a short time later, the vehicle and Kilbourne were there.

Jim Churchman, a forensic scientist for the Louisiana State Police Crime Lab, received a 1977 Buick Regal with license number 147X793 from Deputy Kilbourne at the crime lab. Jerry Miller, a forensic scientist with the crime lab, testified that Churchman received the Dyer vehicle for the crime lab. The vehicle was locked in the crime lab garage. Subsequently, while Churchman and Miller were examining the vehicle, both of them saw the button on the right rear floor area of the Dyer vehicle, and Miller removed it from the vehicle. Miller also removed cloth fibers and pubic hair from the rear seat of the vehicle. Miller testified that he examined a 1977 Buick Regal with license number 147X793.

The victim testified that she noticed a button was missing from her blouse when she took it off to give to Deputy Bell as evidence after the incident. The victim also testified that she was raped on the back seat of the vehicle.

Miller testified that the button found on the back seat of Dyer’s vehicle was like the buttons on the victim’s blouse, that the cloth fibers found in the vehicle were microscopically identical to fibers of the victim’s blouse and that the pubic hair found in the vehicle was microscopically identical to pubic hair of the victim.

The above evidence clearly establishes that it is more probable than not that the button, cloth fibers and pubic hair are connected with the case. The facts that the vehicle did not come into police custody for four days, that Deputy Kil-bourne did not testify and that Bell lost sight of the Dyer vehicle when bringing it to the crime lab are factors which go to the weight of the evidence and not its admissibility.

These assignments of error are without merit.

EVIDENCE OF PHOTOGRAPHIC LINEUP

(Assignment of Error 5)

In this assignment of error, defendant argues that, because the State did not introduce the photographic lineup shown to the victim, it was error to allow the victim to testify concerning the photographic lineup.

A review of the record reveals that the victim’s testimony regarding the photographic lineup was a result of questioning by defendant and not by the State. Because defendant elicited the testimony regarding the photographic lineup, he cannot now complain of such testimony.

This assignment of error is without merit.

FAILURE TO GRANT RECESSES

(Assignments of Error 6 and 8)

In these assignments of error, it is contended that the district court committed error by not granting defense motions for recesses during the testimony of the victim. The defendant contends that the recesses should have been granted because defense counsel had a severe backache and was unable to concentrate on the trial and because a recess would have allowed the victim to compose herself instead of constantly crying in front of the jury and prejudicing them.

The record reflects that shortly after the victim began testifying under direct examination by the State counsel for the defendant requested a ten minute recess to allow her to compose herself. This request was granted. Subsequently, after the victim testified about being choked and unable to breathe, counsel for the defendant again moved for a recess until the next day contending that he had “a severe backache” and that the victim should be given an opportunity to compose herself. The district court judge denied this motion. Counsel for the defendant renewed his request contending that the victim had “been crying for the last twenty minutes without tears coming out her eyes” and that this conduct was prejudicing his client. Counsel for the defendant then stated that the victim’s testimony should not be an “emotional replay of something that she has been over at the District Attorneys office on Thursday.” The district court judge retired the jury and made the following statement:

Now, this lady is obviously upset or apparently upset. I do not see that recessing this proceeding until tomorrow will any way, shape or form remedy that situation. It has been a number of months since the incident occurred, and there’s no reason to think that one additional day will remedy the problem. I am satisfied that Mr. Carmichael has in no way, shape or form illicited (sic) this conduct from this witness, and it not a product of Mr. Carmichael or anyone else with the District Attorneys office. We are going to proceed in the best fashion that we can. Mr. Carmichael’s comments to the witness were in attempt to get her to compose herself in response to your comments Mr. Wellons. I am going to deny the motion made for a recess. I’m going to overrule the objection that Mr. Wellons made to Mr. Carmichael’s comments to the witness.

Thereafter the State proceeded to complete its direct examination. At the conclusion of the State’s direct examination, counsel for the defendant renewed his request for a recess until the next day to allow the victim to compose herself and because “I’m in pain at the present time.” The district court judge denied this motion for a recess. During the course of cross-examination of the victim, counsel for defendant was successful in obtaining a five minute recess. At the end of this recess, counsel for defendant asked the victim if she felt that she could proceed to go forward, and she responded that she could. Counsel for the defendant then proceeded with an extensive and comprehensive cross-examination. No further recesses were requested for the remainder of the trial.

A recess is a temporary adjournment of a trial after it has commenced. La.C.Cr.P. art. 708; State v. Bice, 407 So.2d 1234 (La.1981). The granting of a recess is a matter within the sound discretion of the district court judge, and his ruling will not be reversed in the absence of a showing of an abuse of that discretion. State v. Jones, 412 So.2d 1051 (La.1982).

The record does not reflect that the district court judge abused his discretion. It is not unusual for a victim in a rape case to lose her composure. The record in this case indicates that the victim apparently was able to compose herself and complete her testimony. Although counsel for the defendant twice complained of back pain, a review of the record does not reveal that the pain was sufficient to impede his ability to properly represent his client. Further, no evidence of a back condition was submitted to the district court other than counsel’s unsupported statement of pain.

These assignments of error are without merit.

FAILURE TO RECESS JURY DELIBERATIONS

(Assignment of Error 7)

Defendant contends that the district court committed error by failing to recess the jury at 7:00 p.m. and requiring it to serve from 9:00 a.m. until 2:30 a.m. the next day. Counsel argues that the jury was too fatigued to properly analyze the case.

The court minutes indicate that court was opened at 9:30 a.m. on October 10, 1983. After evidence on the merits was completed, the court granted a ten minute recess prior to closing arguments and the court’s charge. The jury retired for deliberation at 12:39 a.m. on October 11, 1983. The jury returned at 1:23 a.m. for further instructions and retired again at 1:25 a.m. The jury returned its verdict at 2:12 a.m. The court minutes and the transcript do not reflect that the jury, the State or the defendant requested a recess between the time that the defense rested and the jury returned its verdict.

A trial court irregularity or error cannot be availed of after verdict unless it was objected to at the time of its occurrence. La.C.Cr.P. art. 841. The principal purpose of this contemporaneous objection rule is to allow the district court judge an opportunity to rule on the objection and prevent or cure an error. State v. Morris, 429 So.2d 111 (La.1983). Because the defendant did not timely object to the jury commencing its deliberations after an extended day of trial, he cannot raise this objection now for the first time. In any event, it does not appear that the length of the trial was an abuse of discretion. See, for example, State v. Mack, 435 So.2d 557 (La.App. 1st Cir.1983), writ denied, 440 So.2d 727 (La.1983)

This assignment of error is without merit.

DECREE

For the foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.

      . According to the minutes, defendant was also indicted for simple kidnapping. However, the record does not include either a copy of the grand jury indictment for simple kidnapping or any information regarding the disposition of the charge.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    Barbara Ann Atile Pichadou BOUDREAUX, Appellant, v. Robert H. BOUDREAUX, Appellee.
    No. 83-1138.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 2, 1984.

      Stockwell, Sievert, Viccellio, Clements & Shaddock, Kirk A. Bergeron, Lake Charles, for appellant.
    Morris & Casey, Gerald J. Casey, Lake Charles, for appellee.
    Before FORET, CUTRER and CULPEPPER , JJ.

       Judge William A. Culpepper, Retired, Judge Ad Hoc.

   FORET, Judge.

This appeal is from a judgment reducing the child support award previously made to Barbara Boudreaux on behalf of her minor child, Nicole, in the amount of $100 per month for a period of one year, beginning August 1,1983, and ending August 1,1984. The appellant, Barbara Boudreaux, appeals this reduction in support based upon the appellee’s failure to establish a change in circumstances warranting such a reduction. We reverse the judgment of the trial court.

Barbara and Robert Boudreaux were divorced on July 22, 1982 in Lake Charles, Louisiana. Robert was ordered to pay $350 in child support each month for the care of his minor child, Nicole. During the separation and divorce proceedings, Barbara filed at least four rules to make past due child support executory, and it was after the last rule that Robert filed his rule to reduce the support and petitioned for joint custody. (The request for joint custody was subsequently abandoned.)

After the hearing on this matter, the trial court noted that,

“Perhaps in the strict legal technical sense there has not been a change of circumstances as is contemplated by the law; on the other hand, perhaps there is. Apparently you are someone that needs some breathing room.”

Accordingly, the judgment was then reduced by $100 per month for a period of one year in order to give Mr. Boudreaux some “breathing room”. We find that the trial court was clearly wrong in making such a reduction absent a clear showing of the change in circumstances required by our law and jurisprudence in cases in which modification of child support awards is sought. Durbin v. Durbin, 424 So.2d 1130 (La.App. 1 Cir.1982).

The record shows that Robert does indeed have some financial woes occasioned by his failure to pay the Internal Revenue Service and his desire to establish his business in another location. He is a mechanic who operated his own shop in Lake Charles until his financial troubles forced him to close his business. Robert has now opened another shop in San Antonio, Texas and, as a result, has incurred new and additional expenses. Robert testified at trial that he did not want his support obligation eliminated, simply reduced so that he can pay his IRS debt of some $56,000. In other words, he either pays his wife or he pays the IRS.

Mr. Boudreaux offered only an affidavit of his current expenses and earnings and nothing to show in what ways those things differed from the time of the original judgment. In fact, the largest expenses shown were those from previously incurred debts for a business which, we understand, was shut down prior to the judgment of divorce. Robert produced only his checkbook, checking account statement, and some income tax records (incomplete) to substantiate his claims. Robert contended that he was unable to pay both his support and IRS obligations and, at the same time, testified that his ability to pay his bills and his income were better at present than the year before.

Robert’s obligation to support his child is the primary one, and he will not be relieved of that obligation because of an unstable financial condition which he has brought about himself. Dugas v. Dugas, 374 So.2d 1278 (La.App. 3 Cir.1979).

As the Court in Moore v. Moore, 380 So.2d 180 (La.App. 2 Cir.1980), said:

' “The support obligation imposed on the father and the mother of minor children by CC Art. 227 is firmly entrenched in our law and is a matter of public policy. Neither equity (CC Art. 21) nor practical inability to pay (CC Art. 232) overrides this policy or allows a parent to avoid paying his or her share of the obligation where the inability arises solely from that parent’s own neglect and failure. Laiche [v. Laiche, 237 La. 298, 111 So.2d 120 (1959)], supra. See also Halcomb v. Halcomb, 343 So.2d 1183 (La.App. 3d Cir.1977); Baer v. Simon, 334 So.2d 796 (La.App. 3d Cir.1976); Tablada v. Tablada, 356 So.2d 1031 (La.App. 1st Cir.1977); Shows v. Shows, 345 So.2d 975 (La.App. 2d Cir.1977), cert. denied; Theriot v. Melancon, 311 So.2d 578 (La.App. 3d Cir.1975).
In the absence of a fortuitous change in circumstances authorizing a reduction in child support, a parent even in financial straits, is obligated to support the legitimate needs of his or her children during their minority. Halcomb, supra.

Robert’s newest expenses have been incurred as a result of a business judgment which he made, despite the fact that he has numerous existing debts to extinguish. We do not feel that Robert showed the change in circumstances required to modify the original award, for if he had, we do not believe that the trial court would have ordered the temporary reduction that it did. While we sympathize with Mr. Boudreaux’s position, the courts cannot act as his financial counselors and provide “breathing room” when he finds himself “between a rock and a hard place” brought about by his own poor fiscal management.

Accordingly, the judgment of the trial court awarding a reduction of $100 per month for the year beginning on August 1, 1983 and ending August 1, 1984, is hereby reversed, and the matter is remanded to the trial court for further proceedings consistent with the views hereinabove expressed.

Costs of this appeal are assessed against appellee, Robert Boudreaux.

REVERSED AND REMANDED.


author: KNOLL, Judge.

text:
    Huey P. BERTRAND, Plaintiff-Appellee, v. John Henry HALLEY, et ux., Defendant-Appellant.
    No. 83-1071.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Nathan A. Cormie, Lake Charles, for defendant-appellant.
    McHale, Bufkin & Dees, Louis D. Buf-kin, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   KNOLL, Judge.

This appeal concerns a predial servitude. John Halley and his wife, Ruby Halley, (hereafter Halleys) appeal a declaratory judgment in favor of Huey P. Bertrand (hereafter Bertrand) decreeing the existence of a predial servitude for the use of a water well on the Halleys’ property. The Halleys assign as error the following: (1) whether Everett Doland, the common ancestor in title of the Halleys and Bertrand, established a real or personal servitude; (2) if a real servitude was created, does the use of a water well constitute a continuous apparent servitude capable of acquisition by destination of the owner; and (3) if the trial court improvidently granted Bertrand a temporary restraining order restricting Halley’s interference with Bertrand’s exercise of the predial servitude, is Halley entitled to attorney’s fees? The issue raised by these assignments is whether the servitude is both continuous and apparent. We reverse, finding that Bertrand’s use of the water well was a discontinuous servitude that required the act of man, therefore, incapable of acquisition by destination of the owner.

FACTS

The facts are undisputed. The Halleys and Bertrand are owners of adjoining tracts of land. Their common ancestor in title, Everett Doland, owned both tracts at issue as one parcel of land from 1962 to 1976. During Doland’s common ownership, a water well located on the tract now owned by the Halleys was used to transport water by underground pipe to Do-land’s home situated on the tract now owned by Bertrand. The water well is located on the Halleys’ tract, ten feet from the Bertrand tract, and consists of an electric pump motor and holding tank enclosed in a small aboveground structure.

An electric motor is necessary to draw water from the well. The electricity required to generate the motor is supplied by electrical utility lines that run from the Bertrand tract to the water well on the Halleys’ tract. The deeds to Bertrand and the Halleys, and their ancestors in title, do not mention the use of the water well. Each acquired title to their respective tracts free from any encumbrances.

NATURE OF THE SERVITUDE

The Halleys contend the trial court erred in holding that Bertrand acquired a predial servitude for the use of a water well when Doland sold the tract to the Stanleys, Bertrand’s immediate ancestor in title. The Halleys assert that if Bertrand’s ancestors in title acquired any rights to use the water well, these rights were personal to Bertrand’s ancestor in title and did not enure to the benefit of the Bertrand tract.

All parties agree that the alleged predial servitude should be determined by the codal articles of the Louisiana Civil Code of 1870, not the amended servitude articles which became effective January 1, 1978. We agree. The new codal articles do not have a retroactive effect; accordingly our treatment of the servitude in question will be governed by the applicable articles of the Civil Code of 1870. See Norton v. Thorne, 446 So.2d 972 (La.App. 3rd Cir. 1984.)

Under LSA-C.C. Art. 646 of the Louisiana Civil Code of 1870, there are two kinds of servitudes, personal and real, which are defined as follows:

⅜ * ⅛: ⅜ ⅜ ⅝
“Personal servitudes are those attached to the person for whose benefit they are established, and terminate with his life. This kind of servitude is of three sorts: usufruct, use and habitation.
Real servitudes, which are also called predial or landed servitudes, are those which the owner of an estate enjoys on a neighboring estate for the benefit of his own estate.
They are called predial or landed servi-tudes, because, being established for the benefit of an estate, they are rather due to the estate than to the owner personally.” (Emphasis added.)
⅜ $ jjS * 3|t ⅜

The Halleys rely upon LSA-C.C. Art. 757 in asserting that the use of the water well was for “mere personal convenience.” Article 757 provides:

“If, on the other hand, the concession from its nature is a matter of mere personal convenience, it is considered personal, and can not be made real but by express declaration of the parties.
Thus for example, if the owner of a house near a garden or park, should stipulate for the right of walking and gathering fruits and flowers therein, this right would be considered personal to the individual, and not a servitude in favor of the house or its owner.
But the right becomes real and is a predial servitude, if the person stipulating for the servitude, acquires it as owner of the house, and for himself, his heirs and assigns.”

We disagree with the Halleys reliance upon Article 757. We find the use of the water well served as a “real advantage” to the Bertrand tract, which is the import of LSA-C.C. Art. 756, which provides as follows:

“If the right granted be of a nature to assure a real advantage to an estate, it is to be presumed that such right is a real servitude, although it may not be so styled.
Thus, for example, if the owner of a house contiguous to lands bordering on the high road, should stipulate for the right of passing through lands,* without it being expressed that the passage is for the use of his house, it would be not the less a real servitude, for it is evident that the passage is of real utility to the house.” (Asterik explanation omitted.)

The presumption is that such right is a real servitude. Moreover, the evidence clearly establishes the “real advantage” to the Bertrand tract when Doland began using the well after the pump on the well behind his home malfunctioned. Therefore, it is clear that the presumption of a real servitude existed.

In 1976 Doland sold to the Stanleys what is now the Bertrand tract. Doland allowed the Stanleys the continued use of the water well provided they paid the monthly electric bill for generating the water, until they either dug their own well or Doland sold the land on which the water well is situated. When Bertrand purchased the tract from the Stanleys, Doland allowed Bertrand to continue drawing water from the well. He had the same understanding with Bertrand that he had with the Stanleys concerning the electric bill. Further, Do-land had the electric company transfer the water well’s electric meter from his name to Bertrand’s. However, Doland never informed Bertrand that the use of the water well could terminate.

Accordingly, we find the trial court did not err in classifying the use of the water well as a real servitude.

CONTINUITY OF THE SERVITUDE

The Halleys concede that the water well was apparent. They contend, however, that the water well constituted a discontinuous servitude incapable of acquisition by destination of the owner.

LSA-C.C. Art. 767 provides as follows: “The destination made by the owner is equivalent to title with respect to continuous apparent servitudes.
By destination is meant the relation established between two immovables by the owner of both, which would constitute a servitude if the two immovables belonged to two different owners.”

LSA-C.C. Art. 727 differentiates continuous from discontinuous servitudes as follows:

“Servitudes are either continuous or discontinuous.
Continuous servitudes are those whose use is or may be continual without the act of man.
Such are aqueducts, drain, view and the like.
Discontinuous servitudes are such as need the act of man to be exercised. Such are the rights of passage, of drawing water, pasture and the like.”

The creation of a predial servitude by destination made by the owner is never presumed until it has been proved that both estates, now divided, have belonged to the same owner, and that it was by him that the things have been placed in the situation from which the servitudes result. LSA-C.C. Art. 768. If the owner of two estates, between which there exists an apparent sign of servitude, sells one of those estates, and if the deed is silent respecting the servitude, the servitude shall continue to exist in favor of or upon the estate which has been sold. LSA-C.C. Art. 769.

In reaching its decision the learned trial judge relied on Fuller v. Washington, 19 So.2d 730 (La.App. 2nd Cir.1944), Acadia-Vermilion Rice Irrigating Co. v. Broussard, 175 So.2d 856 (La.App. 3rd Cir. 1965) and Blanda v. Rivers, 210 So.2d 161 (La.App. 4th Cir.1968). The Louisiana Supreme Court noted that these cases presented a conflict in our jurisprudence, therefore, it granted certiorari in Nash v. Whitten, 326 So.2d 856 (La.1976) to resolve any inconsistency in the jurisprudence. In Nash, supra, the Supreme Court stated:

“We are of the opinion that these aforesaid cases have formulated criteria for classifying servitudes as continuous or discontinuous that depart from the test clearly set forth in the Civil Code. A predial servitude is defined as a charge laid on an estate for the use and utility of another estate belonging to another owner. La. Civil Code art. 647 (1870). Continuous servitudes are those whose use (by the dominant estate), is, or may be, continual without the act of man. Id. art. 727. If man’s intervention is needed in order for the dominant estate to exercise the servitude, the servitude must be classified as discontinuous.
* ⅜ * ⅜ * *
What has led us to classify the gas pipeline as a discontinuous servitude is the fact that the gas can be transmitted through the pipeline only with the assistance of pumps at the well site. Just as the use by the dominant estate of a servitude of aqueduct or drain consist of the flow of water,3 so the use of the servitude in this case consists of the transmission of natural gas through the pipeline. Without the man-operated pumps4 that maintain adequate pres sure, gas will not be transmitted through the pipeline, and no use can be made of the servitude. The gas pipeline servitude is consequently discontinuous, since it needs the act of man for its exercise.5” (Footnotes omitted.) (Emphasis added.)

From the standard set forth in Nash, supra, we conclude that the water well in the instant case does not constitute a continuous servitude.

Bertrand’s use of the water well is dependent on successive instances of man’s intervention. The water could only be transmitted to the pipeline with the aid of a pump at the well. We note that this activity is similar to “drawing water” which is exemplified in Article 727 as a discontinuous servitude. Accordingly, we find that the trial court erred in. its determination that Bertrand acquired a predial servitude by destination of the owner.

ATTORNEY’S FEES

Since we have found that Bertrand is not entitled to a predial servitude, the Halleys seek attorney’s fees under LSA-C.C.P. Art. 3608 for the wrongful issuance of the temporary restraining order and the preliminary injunction.

After Bertrand sought a temporary restraining order, the Halleys filed a reeon-ventional demand praying for the dissolution of the restraining order. Initially, we note that by joint stipulation between the parties, the trial court signed a judgment dated May 13, 1982, formally dismissing the reconventional demand to dissolve the temporary restraining order and for damages and attorney’s fees. Accordingly, the issue of attorney’s fees is not properly before this court.

For the foregoing reasons, the judgment of the trial court is reversed, and the petition for declaratory relief filed by Huey P. Bertrand against John Henry Halley and Ruby Halley is dismissed with prejudice. Costs of this appeal are assessed against the plaintiff-appellee, Huey P. Bertrand.

REVERSED AND RENDERED.

GUIDRY, J., concurs in the result.


author: CULPEPPER, Judge. FORET, Judge,

text:
    Earl E. BRYANT, Jr., Plaintiff-Appellee, v. GULF STATES UTILITIES COMPANY, et al., Defendants-Appellants.
    No. 83-1113.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Dissenting Opinion Dec. 13,1984.

      Maurice L. Tynes, Lake Charles, for defendants-appellants.
    Brame, Bergstedt and Brame by David Fraser, Stockwell, Sievert, Viccellio, Clements & Shaddock, John S. Bradford, Lake Charles, for defendant-appellee.
    Nathan A. Cormie, Lake Charles, for plaintiff-appellee.
    Before FORET and CUTRER, JJ., and CULPEPPER, J. pro tem.
   CULPEPPER, Judge.

This is an appeal by defendant, Allstate Insurance Company, from a judgment ordering it to pay $12,000 under its uninsured motorist coverage of plaintiff, Earl Bryant. Allstate argues that Gulf States Utilities, the employer of the tort-feasor, is able to pay the amount of the liability of the tort-feasor which his insurance does not cover, so the tort-feasor is not underinsured.

Plaintiff, Earl Bryant, was stopped at a stop light when his truck was struck from the rear by Brenda Ardoin, an on-duty employee of Gulf States Utilities (GSU), driving her personal vehicle. She in turn was struck from the rear by a car driven by Deborah Fowlkes. Bryant filed suit against GSU, State Farm Mutual Automobile Insurance Agency (Ardoin’s liability insurer), Commercial Union Insurance Co. (liability insurer of the car driven by Fowlkes), and Allstate Insurance Company (his own uninsured motorist insurer). Allstate did not sue anyone or file a third party demand against any party.

The jury found Ardoin 100% at fault in causing Bryant’s injuries. They found Bryant entitled to $31,000.

Ardoin had liability insurance in the amount of $10,000. Bryant had uninsured motorist coverage for $10,000 and $2,000 medical payments coverage. The trial judge apportioned the jury award so that State Farm must pay $10,000, Allstate must pay $12,000, and GSU, the tort-fea-sor’s employer, must pay $9,000.

Allstate appeals, contending that the plaintiff may not recover from his own uninsured motorist insurer since GSU, a defendant, was vicariously liable for the tort and was self-insured for an amount sufficient to cover the judgment.

GSU has stated that it is self-insured for up to $250,000. This is not insurance on Ardoin’s vehicle. Uninsured motorist insurance is “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underin-sured motor vehicles." LSA-R.S. 22:1406D(l)(a). Ardoin’s vehicle was underinsured since the policy covering it had only $10,000 coverage for liability and the judgment was for $31,000. The uninsured motorist carrier is required to pay since the vehicle was underinsured.

The fact that GSU is able to pay the entire judgment is irrelevant to uninsured motorist coverage. The liability of the uninsured motorist carrier arises out of its contract with the insured. The wealth or poverty of the tort-feasor, or those responsible for his acts, does not affect the liability of the uninsured motorist insurer. It is liable only if the tort-feasor is uninsured or underinsured.

Allstate cites Jordan v. Honea, 407 So.2d 503 (La.App. 1st Cir.1981), writ denied, 409 So.2d 654 (La.1982). In that case, plaintiff was a passenger in an automobile which was owned by Browning-Ferris Industries, Inc. It was struck by an uninsured motorist. Plaintiff contended that since Browning-Ferris was a certified self-insured under LSA-R.S. 32:1042, it was statutorily required by LSA-R.S. 22:1406.D to afford uninsured motorist protection on all of its vehicles. The court held that since there was no policy issued on the automobile, the statute did not require that uninsured motorist coverage be rejected. Clearly, that case does not support Allstate’s position in the present matter. It involved a different statute and a different issue, and, if anything, its holding weakens Allstate’s argument.

The judgment of the trial court is affirmed. Costs are assessed to Allstate Insurance Company.

AFFIRMED.

FORET, J., dissents and will assign reasons.

FORET, Judge,

dissenting.

I respectfully disagree with my learned brothers’ opinion that the trial court was not clearly wrong in casting Allstate in judgment for any portion of plaintiff’s damages. The tort-feasor, Ms. Ardoin, was not an underinsured motorist. There is no dispute that she was acting in the course and scope of her employment at the time of the accident and that her employer, Gulf States Utilities, a co-defendant, was self-insured for an amount up to $250,000 limits of liability with excess insurance provided over and above that amount.

“Under the present provisions of our uninsured motorist insurance law, where the tortfeasor had liability coverage which was less than the damages suffered by the innocent party, the latter’s U.M. coverage becomes ‘excess’ insurance. Whitten v. Empire Fire and Marine Insurance Company, 353 So.2d 1071 (La.App. 2nd Cir., 1977).” White v. Patterson, 409 So.2d 290 (La.App. 1 Cir. 1982), writ denied, 412 So.2d 1110 (La.1982).
“The U.M. carrier has no obligation to pay that portion of plaintiff’s damages within the [underinsured] tortfeasor’s liability policy limits, but only those damages which exceed the policy limits and which are within the U.M. policy limits.” White at page 292.

I am of the opinion that the majority fell into error by attempting to distinguish between an “insured” and a “self-insured” tort-feasor. Insofar as the facts, circumstances, and resolution of this case are concerned, I perceive no difference whatsoever between these two terms. Gulf States Utilities, the employer of the tort-feasor, and who is vicariously liable for the tort committed by its employee, can in no sense of the word be said to be uninsured when there is no dispute that it was self-insured for $250,000. How can it be said that there was no other “insurance” available to the plaintiff, other than his own U.M. insurer, Allstate.

By casting Allstate in judgment before Gulf States, the majority makes Gulf States the excess insurer, rather than Allstate. In my opinion, we should reverse the trial court judgment insofar as it holds Allstate liable, and render judgment in favor of plaintiff, against Brenda Ardoin; her insurer, State Farm; and Gulf States Utilities, jointly, severally, and in solido, for the amount of $31,000; and further, that plaintiff’s claim against Allstate, his U.M. carrier, should be dismissed.

      The opinion used the word "uninsured” when the correct term should be “underinsured”, or better yet, neither term needed to be used.


author: YELVERTON, Judge.

text:
    Norma Smith JETER, et al., Plaintiffs-Appellants, v. Michael J. MARSE, et al., Defendants-Appellees.
    No. 83-1114.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Writ Denied Feb. 8,1985.

      Thomas R. Willson, Alexandria, for plaintiff-appellant-appellee.
    Brittain & Williams, Joseph Payne Williams, Natchitoches, for defendant-appellee-appellant.
    Fine, Waltzer & Bagneris, Thomas M. DeRose, New Orleans, for defendant-appel-lee.
    Before DOUCET, LABORDE and YEN VERTON, JJ.
   YELVERTON, Judge.

The widow and heirs of L.T. Jeter, a pedestrian killed in the early morning hours of August 1, 1981, on a dark, rural highway, appeal a trial court decision finding that Phyllis Marse, defendant, driver of a pickup truck that struck and killed Jeter, was not negligent. Finding no clear error in this factual determination by the trial court, we affirm.

The trial court made the following findings of fact:

“At approximately 11:30 P.M. on August 31, 1981, Mrs. Marse was traveling in a westerly direction on Louisiana Highway 28 towards Leesville. Other passengers in the vehicle were Mr. Marse and the couple’s young daughter, Summer. Mrs. Marse was traveling within the speed limit and was not drinking or taking any type of medication, and the truck was functioning properly.
“Mr. L.T. Jeter was walking down the middle of the traveled portion of this same highway in the opposite direction. He was wearing dark clothing. A postmortem blood test showed his blood alcohol level to be .20.
“When the Marse vehicle came upon a rise in the highway Mr. Jeter appeared immediately in front of it. Mrs. Marse applied her brakes, but Mr. Jeter darted directly in front of the truck and was struck and killed immediately.”

The deceased’s widow, Norma Smith Jet-er, individually and on behalf of their three minor children, Lisa Jeter, Michael Paul Jeter and Joani Leann Jeter, as well as the deceased’s major children, Gary W. Jeter, Randy C. Jeter, Ricky D. Jeter, and Sheila Jeter Gleason, brought a wrongful death action against the defendants, Phyllis Marse and Michael Marse. The plaintiffs also filed a separate suit against Southern Farm Bureau Casualty Insurance Company, L.T. Jeter’s uninsured motorist carrier. The two cases were consolidated for trial. For the purposes of this appeal only one opinion will be rendered; however, a separate judgment is this date being rendered in Jeter v. Marse, 460 So.2d 713 (La.App. 3rd Cir.1984).

On the basis of the above related findings of fact, and the case of Aetna Casualty and Surety Company v. Nero, 425 So.2d 730 (La.1983), the trial court found for defendants in both cases and rendered judgment dismissing plaintiffs’ suits. From this judgment plaintiffs appeal, contending that the trial court committed manifest error in its conclusions of law, and that it was clearly wrong in its findings of fact.

After a careful review of the record, we find that it clearly supports the findings of fact by the trial court. We also find that the trial court was correct in applying the law of Nero, supra, to these facts.

Nero involved a similar motor vehicle-pedestrian collision. There, late one clear night, a pedestrian was struck and killed by an automobile. The driver was sober; her car was functioning properly; and she was driving within the speed limit. The pedestrian was intoxicated, he was wearing dark clothing, and he was crossing the street where there was no cross walk. The driver of the vehicle did not see the pedestrian until impact.

In Nero, supra, the Supreme Court held the trial court correctly dismissed the plaintiffs case because there was no proof that the driver was negligent.

In the present case, the trial court found the present facts indistinguishable from Nero, as indicated by the following language from its opinion:

“This case is indistinguishable from the Nero case. The facts are clear and heavily weighted in favor of the defendants. Mrs. Marse had not been drinking. The truck was functioning properly. She was not speeding. There was no evidence to prove that Mrs. Marse was guilty of any negligence in the operation of her vehicle.
“On the other hand, the victim was wearing dark clothing, he had been drinking; and, he was walking down the middle of an unlighted highway in the late night hours.”

Although each case must be decided on its own facts, we find the facts here to be similar to those found in Nero and heavily weighted in the defendants’ favor to justify the trial court’s holding that the sole cause of the accident was the negligence of the deceased.

For the foregoing reasons the judgment appealed from is affirmed at the appellants cost.

AFFIRMED.


text:
    Norma Smith JETER, et al., Plaintiffs-Appellants, v. Michael J. MARSE, et al., Defendants-Appellees.
    No. 83-1115.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Thomas R. Willson, Alexandria, for plaintiff-appellant-appellee.
    Brittain & Williams, Joseph Payne Williams, Natchitoches, for defendant-appellee-appellant.
    Fine, Waltzer & Bagneris, Thomas M. DeRose, New Orleans, for defendant-appel-lee.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

For the reasons this date given in the case Jeter v. Marse, 460 So.2d 711 (La. App. 3rd Cir.1984), the judgment of the trial court is affirmed. Appellant will pay the cost of appeal.

AFFIRMED.


text:
    Donald JOSHUA, Plaintiff-Appellee, v. STATE of Louisiana, OFFICE OF EMPLOYMENT SECURITY, et al., Defendants-Appellants.
    No. 83-1119.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Ralph Johnson, New Orleans, for defendant-appellant-appellee.
    Eddie G. Crawford, Baton Rouge, for defendant-appellant-appellee.
    John T. Bennett, Marksville, for plaintiff-appellee.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

Donald Joshua, a claimant for unemployment benefits, having quit one job for another with higher pay and less travel to and from work, was determined disqualified by the Office of Employment Security, a decision reversed by the district court. The employer, Schwegmann Giant Super Markets, Inc., as well as the Office of Employment Security, appeal, contending that the district court was in error and that the agency determination was correct, arguing that Joshua left the job without good cause connected with his employment, and he was therefore not entitled to benefits. We agree with appellants, reverse the district court, and reinstate the decision of the Louisiana Board of Review of the Office of Employment Security.

The facts are contained in brief testimony before the claims referee. Donald Joshua began working for Schwegmann Giant Super Markets, Inc., as a dock worker on February 8, 1982. The job site was 40 miles from his home. Joshua found another job with Browning Ferris Industries which afforded him more hours at a higher hourly rate and which had the additional advantage of being only three miles from his home. He resigned the job at Schweg-mann’s on September 17, 1982, and took the one at Browning Ferris, where he worked for one and a half months before being laid off. When he applied for unemployment compensation benefits based on his former employment with Schwegmann, the application was denied.

The appeals referee found a disqualification for benefits, based on R.S. 23:1601(1), on the finding of fact that the claimant quit his job because he had found other employment which paid higher wages. The Louisiana Board of Review affirmed.

The scope of judicial review of a decision disqualifying an employee from unemployment compensation benefits is limited to questions of law and whether the decision is supported by sufficient evidence. Gunter v. Louisiana Department of Labor, 442 So.2d 804 (La.App. 4th Cir. 1983).

LSA-R.S. 23:1601(1), as amended by Act 131 of 1981, provides that an individual shall be disqualified for benefits:

“(1) If the administrator finds that he has left his employment period from a base period or subsequent employer without good cause connected with his employment. ...”

It is good cause connected with employment for an employee to quit his job when the work becomes unsuitable within the meaning of R.S. 23:1601(3)(a) due to unanticipated working conditions. Boudreaux v. Louisiana Board of Review, Department of Employment Security, 374 So.2d 1182 (La.1979). It was held in that case that, an employee who, after the initial employment close to home, was transferred to a job-site 48 miles round-trip, suffered a change in transportation costs and therefore in employment suitability, and the change was sufficiently serious— transportation was either unavailable or available only at prohibitive costs—that he had a good cause connected with the employment for resigning from the work. Similarly, when an employee began a job not knowing that public transportation would not be available to her when her work shift ended, with the result that she had to pay 40 percent of her wages in taxi fares, it was held the termination was for good cause connected with her employment. Bateman v. Howard Johnson Company, 292 So.2d 228 (La.1974).

Good cause connected with employment is not shown, however, when the reason for leaving a job is because it required a 92 mile round trip daily, when the employee was aware of that condition when he accepted employment, and it was, therefore, not an unanticipated working condition. Hurst v. State Division of Administration, 394 So.2d 1279 (La.App. 1st Cir.1981). Similarly, in Pegues v. Office of Employment Security of the State of Louisiana, 430 So.2d 375 (La.App. 3rd Cir.1983), it was held that a transportation problem created by an employee’s decision to marry and move to another part of the state, did not permit good cause connected with the employment for her to resign.

In the instant case, the claimant in his testimony before the claims referee, gave two reasons for quitting:

“Well, like I said the reason I resigned because I was going to make more money, it was closer to home. I was driving about 40 miles to go to work there and I wasn’t making that much. I was making about 30 hours a week. And the money I was making was for me to put gas. I had bills to pay and I had the opportunity to make more money to that job so I went to that job. And I was making more money an hour plus more hours a week.”

The first reason, dissatisfaction with his compensation, was not good cause entitling claimant to unemployment benefits. Gunter v. Louisiana Department of Labor, supra. The second reason, the transportation problem, falls into the category of cases where the employee was aware of the travel requirements when he accepted employment; the travel expense was not an unanticipated working condition, and quitting for that reason was not a good cause connected with his employment.

We find that the claimant’s own testimony is sufficient evidence to support the findings of fact made by the claims referee. The district court and the court of appeal (both courts are appeal courts in this instance) are held to the same standard of review of the decisions of the Office of Employment Security, concerning whether or not an employee qualifies for unemployment benefits. We find that it was manifest error for the district court to conclude, as a matter of law, that plaintiff was entitled to benefits. For these reasons, the judgment of the trial court is reversed and the decision of the Louisiana Board of Review, finding that the claimant voluntarily terminated his job without good cause connected with his employment, is reinstated and affirmed.

DISTRICT COURT JUDGMENT REVERSED; JUDGMENT OF THE LOUISIANA BOARD OF REVIEW REINSTATED; CLAIM DISMISSED.


author: LABORDE, Judge.

text:
    Charles Theodore BEAULLIEU, Jr., Plaintiff-Appellant, v. Karen Daigle BEAULLIEU, Defendant-Appellee.
    No. 83-1126.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Herman C. Clause and Karen Longon, Lafayette, for plaintiff-appellant.
    W. Paul Hawley, Lafayette, for defendant-appellee.
    Before DOUCET, LABORDE and YEL-YERTON, JJ.
   LABORDE, Judge.

Plaintiff, Charles Theodore Beaullieu, Jr. (Charles), appeals from a trial court judgment ordering an increase of child support payments to his former wife, Karen Daigle Beaullieu (Karen), defendant. We affirm.

FACTS

On April 2, 1981, Charles and Karen were divorced. Karen was awarded custody of their two children, Bridgette Renne and Charles Theodore, III, now 9 and 5 years old, respectively. By consent of the parties, Karen received $500 per month child support. She did not receive any alimony and Charles was granted reasonable visitation rights. Karen’s salary was then $1,500 per month and Charles’ salary was $2,500-$3,000 per month.

On May 26, 1983 Charles filed a rule nisi to have the child support payments reduced. Karen subsequently filed a rule for an increase.

After hearing testimony from both Charles and Karen, the trial court increased the monthly payments from $500 to $800. Charles moved for a new trial to no avail, then perfected this appeal.

ISSUE

The sole issue before us is whether the trial judge abused his discretion in this instance by increasing the child support payments.

INCREASE IN CHILD SUPPORT

It is fundamental that parents, by their very act of marrying, contract together the obligation of supporting, maintaining, and educating their children. LSA-C.C. article 227. The amount of support is determined according to the needs of the children as well as the circumstances of those who are obligated to pay it. Richardson v. Richardson, 428 So.2d 1326 (La.App. 3rd Cir.1983); Goodrich v. Goodrich, 421 So.2d 962 (La.App. 3rd Cir.1982), writ denied, 427 So.2d 1209 (La.1983).

In order for a party to procure a reduction or increase in child support payments, he must show a change in the financial condition of one of the parties to the extent that the increase or decrease is clearly necessary from the circumstances. Shackleford v. Shackleford, 411 So.2d 736 (La.App. 3rd Cir.1982).

Charles is now self-employed and earns approximately $1,500 per month from his personally owned company. His total assets in land, vehicles and horses are valued at approximately $375,000.

Karen earns a net salary of $1,305.78 per month. The monthly expenses necessary for the children’s welfare are approximately $1,961.51. Karen shows that her expenses in maintaining the children in accord with their customary standards are greater than her combined income and child support payments of $500. Since the original child support payments of $500 per month, the children have needed speech therapy, which constitutes an added expense of $207.50 per month. School tuition has also increased because both children are now in school. Karen further shows that her children now consume more and require greater financial expense in the form of clothing and other incidental matters. Karen has received only a $300 raise since the original support decree, hardly enough to off-set the increased costs of adequately providing for the children.

During the interim, Charles has voluntarily changed jobs by forming his own company. He contends that his income has diminished from approximately $3,000 to $937 per month. However, the record indicates that his present monthly expenses amount to $2,702, exclusive of child support. We also find that in addition to his employment income, he receives annual installment payments from previous land sales ranging from $5,152 to $4,000. Charles also has substantial interests in land, valued at $275,000, and in race horses and classic cars. He presently pays $800 per month to maintain an interest in the race horses, valued at $58,000.

Based on all of these facts, we find a substantial change in circumstances which warrants the increase in child support. We also find that Charles’ financial circumstances and means provide for such an increase from $500 to $800 per month.

In Hendrick v. Hendrick, 441 So.2d 2 (La.App. 3rd Cir.1983), we held that a parent’s obligation to support his children under LSA-C.C. art. 227 may require him, when necessary, to reduce his expenses or to designate funds to pay these high priority obligations. This paramount principle which insures the welfare of the children is applicable in this instance.

A trial court is possessed with considerable discretion in deciding whether to modify child support awards. A trial court’s modification and award will not be disturbed in the absence of an abuse of discretion. Dupuy v. Dupuy, 421 So.2d 458 (La.App. 3rd Cir.1982). We have reviewed the record. We find no abuse of discretion by the trial court.

For these reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


text:
    PRIMVEST, INC., Plaintiff-Appellee, v. Martha DUGAS, Defendant-Appellant.
    No. 83-1127.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Richard S. Hoover, Lafayette, for defendant-appellant.
    Funderburk, Conque & Herpin, Joseph C. Kosarek, Abbeville, for plaintiff-appellee.
    Before DOUCET, LABORDE and YEN VERTON, JJ.
   YELVERTON, Judge.

Martha Dugas appeals a $3,695.00 money judgment against her which was based on the doctrine of unjust enrichment, contending that the plaintiff, Primvest, Inc., did not plead the application of the doctrine in its petition, and that therefore the trial court should not have applied the doctrine. She also appeals the trial court’s finding that the elements of unjust enrichment were satisfied by the evidence. We affirm, finding that, although the pleadings did not allege unjust enrichment, appellant was given fair and timely notice of the cause of action, and that she was not taken by surprise at any of the evidence presented at the trial. We also find the elements of unjust enrichment were proved.

Primvest, Inc., an importer-exporter, through its president, Curtis Primeaux, bought a used car for appellant, Martha Dugas, paying $3,695 by means of a company check to the car dealer. Primeaux contends the purchase of the car was the first step toward the confection of an employment contract, under which Martha Dugas was to work for the company in various capacities, including that of a salesman, and also as the driver for Primeaux, who was then confined to a wheelchair, to enable him to make sales calls. After the car was bought for Dugas and delivered to her, nothing further was done to finalize an employment agreement, and no services were ever rendered to the company by Du-gas. Primvest’s demand for reimbursement of the cost of the car went unanswered.

Primvest filed suit. Entitled “Petition in Suit on Money Due”, the suit alleged that Martha Dugas agreed to become employed, that as a portion of her compensation the car was bought for her and put in her name and possession, that she then refused to become employed and render services, and that Primvest was entitled to recovery of $3,695, the purchase price of the car. Nowhere in the petition did Primvest allege unjust enrichment as a basis for recovery.

In her answer to the suit, Martha Dugas denied an employment agreement and pleaded the defense that the car was a manual gift from Curtis Primeaux.

The evidence consisted only of the testimony of Curtis Primeaux and Martha Du-gas. At the trial she abandoned her pleaded contention that the car was a manual gift, testifying instead that she had paid Primvest for it in cash. She explained that she withdrew her life savings in cash, that she gave the money to Primeaux, and that he in turn wrote his check to the used car dealer, supposedly to get the advantage of a better deal through his bargaining power. Primeaux denied this. No documentary evidence was introduced by Dugas to support her defense of payment.

The trial judge believed Primeaux. The court found that plaintiff failed to prove a contract but that Primvest had established its entitlement to recovery of the money under the doctrine of unjust enrichment.

Trial court findings based on credibility of the witnesses are entitled to great weight and will not be disturbed on appeal unless shown to be manifestly erroneous. West Louisiana Petroleum Corp. v. Gunn, 428 So.2d 1289 (La.App. 3rd Cir. 1983). In the present appeal there has been no showing of manifest error. We accordingly find the facts to be as outlined by the testimony of Primeaux. His company purchased the defendant an automobile. The company expended $3,695 for the vehicle. The purchase was not intended as a gift. The defendant has not reimbursed the company the money and the defendant still has possession and use of the vehicle. The trial court did not find credible the testimony of the defendant that alleged she gave Mr. Primeaux the cash for the purchase. These are the basic facts upon which appellant’s assignments of error are to be determined.

On appeal, Martha Dugas’ assignments are two: (1) she contends that, because Primvest did not include in its pleadings “unjust enrichment” as a basis for its recovery, the trial court erred in awarding recovery based on the theory of unjust enrichment, and (2) even if the doctrine was available to plaintiff, the elements of the doctrine were not satisfied by the evidence. We reject both contentions.

It was not a technical necessity that the words “unjust enrichment” be included in plaintiff’s pleadings, in order for it to recover under that doctrine. In Louisiana the Civil Code of Procedure provides for fact pleadings under LSA-C.C.P. arts. 862 and 1154; the “theory of the case” doctrine has been eliminated and the court should render the relief to which a party is entitled under the evidence presented even if it has not been demanded in the pleadings. Gremillion v. Rapides Parish Police Jury, 430 So.2d 1362 (La.App. 3rd Cir. 1983); writs denied 435 So.2d 426 and 440 (La.1983); and Arceneaux v. Bellow, 395 So.2d 414 (La.App. 3rd Cir.1981), writ denied 400 So.2d 669 (La.1981). Our courts look through the caption, style, and form of pleadings to determine from the substance of the pleadings the nature of the proceedings. Gremillion, supra.

In Southern Mosaic Tile, Inc. v. Alessi, 411 So.2d 601 (La.App. 1st Cir.1982), the court was confronted with a similar argument. In that case the plaintiff filed suit on an oral construction contract to collect the balance allegedly due under the contract. At trial on the merits, the district court found that there was no contract. However, the court found that the defendant was liable for a reasonable amount for the labor and materials furnished, evidently under the theory of unjust enrichment, and awarded recovery measured by quantum meruit. On appeal the defendant argued that the trial court erred in allowing the introduction of evidence on the issue of quantum meruit since the plaintiff had not raised that issue as a basis of recovery. The court answered the argument by noting that defendant knew exactly why plaintiff had filed suit and was aware of all its contentions, as well as what it was trying to recover. The court said:

“Hence, we find that from December, 1978, until the trial on March 9, 1981, Alessi was made aware of the contentions of Southern Mosaic Tile in this matter. It is noted that Alessi filed only a general denial, did not avail himself of discovery procedures, and did not request a continuance of the trial. We find that appellant was not deprived of fair and timely notice of appellee’s cause of action or claim, and was not or should not have been taken by surprise at any of the evidence presented at the trial. Appellee was not required to plead ‘quantum meruit’ under the circumstances of the instant case in order to be allowed recovery under that theory or doctrine.”

In the instant case, the issues were clear cut. The price paid for the car was not disputed. As far as plaintiff was concerned the only issue was whether defendant got something for nothing, and now should restore it. As far as defendant was concerned, the only issue she raised by the pleadings was whether the car was a manual gift, that issue being changed at trial to the contention that she had reimbursed plaintiff the price of the car. These being the fact issues framed by the parties, a testimonial airing of them supplied the evidence necessary for testing the elements of unjust enrichment. Defendant could not have been surprised that the doctrine might be applied by the court.

Plaintiff is not seeking damages in this suit for breach of an employment contract. Under these pleadings we do not find that defendant was deprived of fair and timely notice of plaintiff’s cause of action or claims, and was not or should not have been taken by surprise by any of the evidence presented at trial or by the fact that the trial court rendered judgment under the theory of unjust enrichment. Under these circumstances we do not find that plaintiff was required to plead “unjust enrichment.”

We also find that the elements of unjust enrichment were satisfied by the evidence. The five prerequisites are as follows: (1) there must be enrichment; (2) there must be an impoverishment; (3) there must be a connection between the enrichment and the impoverishment; (4) there must be an absence of “justification” or “cause” for the enrichment or impoverishment; and (5) the action will only be allowed when there is no other remedy at law, i.e., the action is subsidiary or corrective in nature. Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967).

Under the facts of this case it is clear that defendant had received an enrichment by the plaintiff’s purchase of the vehicle and that the plaintiff was impoverished in the amount of $3,595, the amount it expended for the vehicle. There is definitely a connection between the defendant’s enrichment and the plaintiffs impoverishment, and there was no justification for the enrichment or the impoverishment. There is also no other remedy at law.

For the foregoing reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: CULPEPPER, Judge Pro Tem.

text:
    Vergie Baudoin BOUDREAUX, Plaintiff-Appellee, v. Joseph D. BOUDREAUX, Defendant-Appellant.
    No. 83-1128.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Robert R. Broussard, Lafayette, for defendant-appellant.
    Christine M. O’Brien, New Iberia, La., for plaintiff-appellee.
    Before FORET, CUTRER, JJ„ and CUL-PEPPER, J. pro tem.
   CULPEPPER, Judge Pro Tem.

Defendant, Joseph D. Boudreaux, appeals from a judgment granting a divorce to his former wife, Vergie Baudoin Bou-dreaux, on the basis of the parties having lived separate and apart for more than one year and awarding Mrs. Boudreaux permanent alimony in the amount of $275 per month. The sole issue on appeal is whether Mrs. Boudreaux was guilty of fault which would preclude her from receiving permanent alimony. The trial court held that she was not guilty of such fault. We affirm.

FACTS

The parties were married on July 3, 1970, and physically separated on June 28, 1982 when Mrs. Boudreaux left the family home. Mrs. Boudreaux filed a petition of separation from bed and board on July 22, 1982, asserting as grounds habitual intemperance and cruelty, both mental and physical. Mr. Boudreaux filed a reconventional demand seeking a separation from bed and board on the basis of Mrs. Boudreaux’s abandonment and her mental harassment.

Mr. Boudreaux was ordered to pay alimony pendente lite in the amount of $275 per month, and the matter proceeded to trial on August 26,1983. On the. date of trial, Mrs. Boudreaux filed a supplemental and amending petition for divorce based on living separate and apart for one year. Mr. Bgudreaux filed an answer denying all of the material allegations.

APPLICABLE LAW

A spouse is entitled to alimony only when he or she has not been at fault. LSA-C.C. art. 160. The “fault” contemplated in Article 160 is synonymous with the fault grounds for separation and divoree under LSA-C.C. arts. 138 and 139. Boudreaux v. Boudreaux, 407 So.2d 1363 (La.App.3d Cir.1981). Mr. Boudreaux argues on appeal that Mrs. Boudreaux abandoned the matrimonial domicile without good cause, and that she engaged in behavior constituting cruel treatment due to her persistent denial of sexual intercourse and her constant nagging. As to these claims the court made the following findings:

“The Court found from the testimony of all of the witnesses that the defendant, Joseph Boudreaux, was guilty of mental cruelty sufficient enough to render their living together insupportable. As to the defendant’s claim that the plaintiff was also mentally cruel to him, the Court found that the plaintiff was guilty of nagging and complaining, but that this is not sufficient enough to warrant a cause of action for mental cruelty.”

The testimony presented at trial of this matter was conflicting. Mrs. Boudreaux and her witnesses testified that Mr. Bou-dreaux drank to excess almost every day and would become rude and verbally abusive. Mrs. Boudreaux testified further that Mr. Boudreaux had struck her on three or four occasions, but there had not been any witnesses to this physical abuse. According to Mrs. Boudreaux, she left on June 28 after being struck twice by Mr. Boudreaux. Mrs. Boudreaux and her witnesses testified that she cooked daily for Mr. Boudreaux, and that he would often become angry and throw out the food she had prepared. This testimony was contradicted by Mr. Boudreaux and his witnesses who claimed he often had to cook for himself.

It is undisputed that Mr. Boudreaux is disabled from a back injury and cannot do work around the home as he once did. Mr. Boudreaux and his witnesses testified that Mrs. Boudreaux constantly nagged him and complained that he did not do the work he was capable of doing. Mrs. Boudreaux and her witnesses contradict this testimony. Mr. Boudreaux’s witnesses also testified that he only drinks socially, and never to excess. Mr. Boudreaux himself testified, however, that he will drink a half-pint of vodka two or three times a week, or a six-pack of beer.

It is well settled that the trial court’s findings of fact on the issue of fault will not be disturbed on appeal unless found to be clearly wrong. With regard to reviewing factual issues in cases such as this, the Louisiana Supreme Court in Pearce v. Pearce, 348 So.2d 75 (La.1977), made the following statements:

“In the area of domestic relations, much discretion must be vested in the trial judge and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of witnesses. The trial judge having observed the demeanor of the witnesses is in the better position to rule on their credibility. Trosclair v. Trosclair, 337 So.2d 1216 (La.App.lst Cir.1976). The factual findings of the trial court are therefore to be accorded very substantial weight on review. Gilberti v. Gilberti, 338 So.2d 971 (La.App.4th Cir.1976).”

ABANDONMENT

Mrs. Boudreaux can be found guilty of abandonment only if she withdrew from the matronial domicile without lawful cause. LSA-C.C. art. 143. Lawful cause justifying withdrawal must be substantially equivalent to a cause giving grounds for separation. Langton v. Langton, 442 So.2d 1308 (La.App.3d Cir.1983). The trial court’s reasons for judgment previously quoted clearly indicate that it found Mr. Boudreaux’s mental cruelty sufficient to give Mrs. Boudreaux lawful cause for leaving the family home. After reviewing the testimony we cannot say that this finding is clearly wrong.

CRUEL TREATMENT

The trial court’s finding that any complaining and nagging by Mrs. Bou-dreaux was not sufficient to constitute mental cruelty is correct. A pattern of mutual incompatibility, fussing and bickering is not sufficient to constitute cruel treatment. Langton v. Langton, supra. Although not particularly mentioned in its reasons for judgment, the trial court apparently found that Mrs. Boudreaux’s denial of sexual intercourse was not sufficient to constitute cruel treatment. In order to constitute cruel treatment, the persistent denial of sexual intercourse must be unreasonable or unjustified. Bourque v. Landry, 293 So.2d 218 (La.App. 3d Cir.1974). According to Mrs. Boudreaux, her denial of sexual intercourse was due to Mr. Bou-dreaux’s lack of personal hygiene. Mr. Boudreaux admitted that he had difficulty bathing due to his disability. He testified that he rinsed off every day but only used soap once a week. Mr. Boudreaux also testified that his requests for sex were not persistent due to his back problem. Under the circumstances we cannot say that Mrs. Boudreaux’s denial of sexual intercourse was unreasonable or unjustified.

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

AFFIRMED.