text:
    ELDER FOREST PRODUCTS, INC., Plaintiff-Appellant, v. B & F LUMBER & SUPPLY COMPANY, INC., Defendant-Appellee.
    No. 83-991.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.

      Thomas, Dunahoe & Gregory, Edwin Du-nahoe, Natchitoches, for defendants-appellants-appellees.
    Russell T. Tritico, Lake Charles, for plaintiff-appellant.
    Luster & Conine, John W. Luster, Natch-itoches, for defendant-appellee.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.
   CUTRER, Judge.

This appeal presents the question of the applicability of res judicata.

Elder Forest Products, Inc. (Elder) filed suit on an “open account” against B & F Lumber & Supply Co., Inc. (B & F) in the sum of $6,018.14 for the purchase price of building materials sold by Elder to B & F. B & F filed a third party demand against George Minturn to whom the material was sold.

B & F and Minturn filed exceptions of res judicata which were maintained by the trial court. Elder appeals the dismissal of its suit. We affirm.

FACTS

By way of background, the following facts are undisputed:

In September 1979, Minturn was in the process of constructing a dwelling that was to be covered with a redwood siding. Min-turn purchased the siding from B & F for the price of $7,875.00. B & F acquired the siding from a dealer, Elder, who purchased it from the manufacturer, Louisiana-Pacific Corporation. The siding was installed by Minturn on his residence. Soon afterward, Minturn noticed that the redwood warped after it had been rained on.

Minturn then filed a redhibitory action against B & F seeking damages in addition to the purchase price. B & F filed a third party demand against Elder who, in turn, third partied Louisiana-Pacific. Minturn then amended his petition naming as' additional defendants, Elder and Louisiana-Pacific and their insurers.

In this redhibition suit, a compromise was reached wherein Elder, Louisiana-Pacific and their insurers paid Minturn $15,-000.00 as a settlement of all claims by Minturn arising out of the faulty siding.

As a result of the compromise, a judgment was rendered in July 1982, dismissing Minturn’s demand and also all third party demands.

On September 10, 1982, Elder filed this “open account” suit against B & F for the purchase price of the siding.

The issue presented in this case is the applicability of res judicata to the facts above.

B & F and Minturn contend that the compromise of the redhibition suit and the agreed dismissal of the claims of all parties was intended to be a full and final settlement of all claims and that any subsequent claims arising from the purchase of the siding is barred by the doctrine of res judicata. Although the doctrine of res judi-cata is normally based on the conclusive legal presumption of “the thing adjudged” between the same parties, the doctrine is also applicable where a transaction or settlement of a disputed or compromised matter has been entered into between the parties. Thompson v. Bank of New Orleans, etc., 422 So.2d 230 (La.App. 4th Cir.1982); Hancock v. Lincoln American Life Insurance Co., 278 So.2d 561 (La.App. 1st Cir. 1973), writ den., 281 So.2d 754 (La.1973); Bieliewicz v. Rudisill, 201 So.2d 136 (La. App. 3rd Cir.1967). It is well established that parties may enter into transactions or compromises which settle litigation by mutual consent and these transactions have effect equal to that of the thing adjudged. Halford v. Dugas, 422 So.2d 693 (La.App. 3rd Cir.1982); Matthew v. Melton Truck Lines, Inc., 310 So.2d 691 (La.App. 1st Cir.1975); LSA-C.C. articles 3071, 3078.

Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties and they may not be attacked for an error of law or lesion but may be rescinded for: (1) error in the person or on the matter in dispute; (2) fraud, or (3) violence. Halford v. Dugas, supra; Matthew v. Melton Truck Lines, Inc., supra; LSA-C.C. articles 3073, 3079.

Elder argues that the release agreement was not intended to cover the claim for the purchase price of the redwood. Elder asserts that the release applied only to the claim of redhibition and did not apply to the sale for which a price is due.

In order to ascertain whether there was an intent of the parties here to release the claim for the price of the redwood, we look to the judgment of dismissal which was signed by all of the parties. The agreement states in part as follows:

“NOW INTO COURT, through their undersigned counsels, come and appear GEORGE MINTURN, plaintiff, B & F LUMBER & SUPPLY COMPANY, INC., defendant and third party plaintiff, ELDER FOREST PRODUCTS, INC. and its insurer, RELIANCE INSURANCE COMPANY, defendants and third party plaintiffs, and LOUISIANA-PACIFIC CORPORATION, defendant, and with respect represent to the Court that all incidental demands, in the above captioned matter have been settled and compromised, and that all parties wish this matter to be dismissed:
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that there be judgment herein dismissing the main demands of the plaintiff, GEORGE MIN-TURN, against the defendants, B & F LUMBER & SUPPLY COMPANY, INC., ELDER FOREST PRODUCTS, INC., RELIANCE INSURANCE COMPANY and LOUISIANA-PACIFIC CORPORATION, and further dismissing all incidental demands of B & F LUMBER & SUPPLY COMPANY, INC. and ELDER FOREST PRODUCTS, INC., and RELIANCE INSURANCE COMPANY, with prejudice, as having been settled and compromised.” (Emphasis added.)

The original redhibitory action presented the question of whether the purchase price of the siding was due since a defective condition existed. This question of purchase price threaded its way through the main demand and all third party demands between the parties. The judgment of dismissal, approved by counsel for all parties, dismisses the demands of all the parties (Elder, B & F and Minturn) as having been compromised and settled. This judgment of dismissal, along with the release signed by Minturn, clearly reflects that the parties (including Elder) intended to release each other from any further claims arising out of the subject matter. The trial court correctly sustained the exceptions of res judi-cata.

For these reasons, the judgment of the 'trial court is affirmed. The costs of this appeal are to be paid by plaintiff-appellant, Elder Forest Products, Inc.

AFFIRMED.


source: Caselaw Access Project

author: STOKER, Judge.

license: Public Domain

text:
    Michael Kevin WEST and His Wife, Connie West, Plaintiffs-Appellants, v. STATE BOAT CORPORATION and National Fleet Corporation, Defendants-Appellees.
    No. 83-994.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.

      McClain, Morgan & Savoy, Robert E. Morgan, Lake Charles, for plaintiffs-appellants.
    Camp, Carmouche, Barsh, Hunter, Gray, Hoffman & Gill, Brian G. Meissner, New Orleans, for defendants-appellees.
    Before GUIDRY, STOKER and YEL-VERTON, JJ.
   STOKER, Judge.

This is an appeal of a case under the Jones Act and Maritime Laws of the United States. This action was brought by Michael Kevin West against State Boat Corporation and National Fleet Corporation for personal injuries suffered while he was employed as an able-bodied seaman on the motor vessel STATE VENTURE, and by Connie West, his wife, for loss of consortium as a result of her husband’s injuries.

FACTS

The STATE VENTURE was an offshore supply vessel owned and operated by State Boat Corporation. Shortly after midnight on March 22, 1981, the STATE VENTURE was engaged in pumping barite to an oil rig in the Gulf of Mexico. The vessel was anchored from its bow, and its stern was tied to the rig with two nylon lines. The anchor gave way and the vessel swung around to the port (left) and collided with the leg of the rig. The captain ordered that the stern lines be untied. The port line was untied, but the starboard line was pulled taut and could not be untied. The captain then ordered that the starboard line be cut. Mr. West cut the line with a fire ax. The line snapped back striking him on the leg and injuring him.

The claims against National Fleet Corporation were dismissed at trial. The jury returned a verdict that there was no negligence on the part of State Boat Corporation and that the STATE VENTURE was not unseaworthy. Judgment was entered in accordance with the verdict, and the Wests now appeal. See 443 So.2d 1171.

ISSUES

The Wests raise several issues in their brief which can be summarized as follows:

1) Was the captain of the STATE VENTURE negligent under the Jones Act?
2) Was the STATE VENTURE unsea-worthy?
3) Did the trial judge err in giving repetitious jury instructions concerning the burden of proof?

SCOPE OF REVIEW

Before beginning our analysis, we note our limited role in reviewing the jury verdict. Although this court is constitutionally authorized to review both the law and the facts in civil cases, under federal law and jurisprudence, which we must apply in cases involving federal statutes and federal maritime law, the jury’s finding of facts cannot be disturbed by an appellate court unless there is no reasonable eviden-tiary basis for the jury’s conclusions. El-lender v. Texaco, 425 So.2d 291 (La.App. 3d Cir.1982).

NEGLIGENCE OF THE CAPTAIN

The Wests first argue that the captain of the STATE VENTURE was negligent under the Jones Act in having nonop-erating personnel on duty in the wheelhouse. Questions of negligence are factual questions for the jury. We do not find that the jury was without reasonable evidentia-ry basis for its conclusions. While the vessel was anchored and tied to the rig, Capt. Oldmixon lay down on the settee in the wheelhouse leaving deckhand Ed Wal-lach and engineer Frank Hill on watch on the bridge deck. Since the vessel was not being navigated, the 46 U.S.C.A. § 404-1(8) requirement that there be a licensed deck officer would not apply. We do not believe the jury was clearly wrong in finding no negligence resulting from the captain of the vessel leaving the deck and lying down in the wheelhouse while the vessel was anchored and tied up.

The Wests next argue that the captain was negligent in failing to bring the vessel under proper control. There was conflicting expert testimony as to what Capt. Oldmixon should have done under the circumstances. J.B. Kleinpeter, a witness for the plaintiff, was qualified as an expert in operation of vessels and testified that Capt. Oldmixon could have maneuvered the vessel to avoid hitting the leg of the rig. To do this he would have had to put his port engine in forward, his starboard engine in reverse, and used the bow thruster to thrust the bow to starboard. Even after the vessel hit the rig, Capt. Kleinpeter suggested he could have avoided cutting the starboard line by bringing the vessel parallel with the legs of the rig and then backing up. The starboard line would then be slack and could have been untied.

Guy Nielson, a witness for the defense, was qualified as an expert in marine navigation and boat handling. .He disagreed with Capt. Kleinpeter as to what Capt. Oldmixon should have done once he collided with the rig. He believed Capt. Oldmixon took appropriate action and that the action Capt. Kleinpeter suggested was the worst thing he could have done. Had he maneuvered the vessel around the rig leg, he could have damaged the rig legs, or the superstructure of the rig, or caused more damage to his vessel.

Since there was a conflict in the experts’ opinions as to what actions Capt. Oldmixon should have taken, we cannot say the jury was clearly wrong in finding no negligence.

The Wests’ final argument on negligence is that the captain of the STATE VENTURE was negligent in failing to anticipate changes in weather conditions entirely normal to the Gulf of Mexico, which require the taking of certain precautions. At the time of the accident seas were six to eight feet in height and winds were forty knots (approximately 46 m.p.h.). There was some testimony that these conditions may have been caused by a waterspout. Just before the incident the weather was calm, with seas of no more than one to two feet. It was not raining at that time, but it was raining at the time West chopped the line and was injured. The plaintiffs’ expert witness, Capt. Kleinpeter, testified that forty-knot winds are rather uncommon in the Gulf of Mexico. Considering that the weather conditions arose suddenly and that they were uncommon conditions, we believe there was significant evidence to support the jury’s finding of no negligence.

UNSEAWORTHINESS

The plaintiffs contend the STATE VENTURE was unseaworthy in having a bent anchor. There was testimony by the captain that the anchor was not bent before the incident. Michael West testified that it was bent and that the captain knew it was bent. Since the jury heard testimony that the anchor was not bent, there was an evidentiary basis for its evident conclusion that it was not bent. Therefore, we cannot conclude that the anchor was bent, making the vessel unseaworthy.

Plaintiffs then argue that the vessel was unseaworthy in having unqualified personnel on duty in the wheelhouse, who were not licensed to, nor experienced in operating the vessel. Although the vessel would have been unseaworthy if it had been in navigation with only unlicensed, unqualified personnel on duty in the wheelhouse, these were not the facts of this case. This vessel was tied to the rig and anchored. Qualified personnel were on board, and the vessel was stationary. The captain was lying down in the wheelhouse. He took immediate action when the emergency arose. We cannot say the jury was clearly wrong in finding the vessel was not unseaworthy.

The Wests next argue that the STATE VENTURE was unseaworthy in the method of anchoring and. tying same. Plaintiff Michael West testified that he saw no problem with the way the vessel was tied up. The plaintiffs’ expert witness, Capt. Kleinpeter, testified that there was sufficient length of anchor chain. The jury had sufficient evidence before it to find the manner of anchoring and tying of the vessel did not make it unseaworthy. In addition, the plaintiffs' brief does not clearly set forth specifically what was wrong with the way the vessel was tied and anchored.

The final basis for the Wests’ argument that the vessel was unseaworthy is that the type of bitt employed for tying the rig line to the stern vessel was so constructed that the line would pinch and could not be removed when the line was pulled taut. State Boat Corporation argues that the evidence was insufficient to prove unseaworthiness because of bitt design. We believe there was insufficient evidence in this regard for us to hold the jury was clearly wrong in finding the vessel was seaworthy. The plaintiffs did not put on any evidence as to how a different bitt design would prevent the rope from pinching so that it could be untied when under tension.

JURY INSTRUCTIONS

The final issue raised by the Wests is whether the trial judge erred in giving instructions containing multiple and unnecessary repetitions to the effect that the plaintiff had the burden of proof. We find that any repetitions were not prejudicial and did not constitute reversible error. The jury instructions were not misleading. They correctly stated the law to be applied. Adequate jury instructions are those instructions which fairly and reasonably point up the issues presented by the pleadings and evidence and which provide correct principles of law for the jury’s application thereto. Hanks v. Drs. Ranson, Swan and Burch, Ltd., 359 So.2d 1089 (La.App. 3d Cir.1978), writ denied, 360 So.2d 1178 (La.1978). Each jury instruction on the burden of proof applied to a different issue. The first instruction on the burden of proof applied to proving negligence, the second to proving every element of the Jones Act, and the third to proving unseaworthiness. The trial judge correctly and fairly pointed out the issues. He did not mislead the jury. The trial judge did not err in giving the instructions.

CONCLUSION

We find no reversible error. The judgment of the trial court is affirmed. The costs of the appeal are assessed to plaintiffs-appellant.

AFFIRMED.


author: CUTRER, Judge.

text:
    G.B. EVANS, Plaintiff-Appellant, v. J.E. DUNN, Defendant-Appellee.
    No. 83-996.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.

      Douglas H. Allen, Winnfield, for plaintiff-appellant.
    Robert L. Kennedy, Colfax, for defendant-appellee.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.
   CUTRER, Judge.

This is a possessory action affecting a strip of land 36 feet wide and 210 feet long located along the common boundary of properties owned by plaintiff, G.B. Evans, and defendant, J.E. Dunn. The strip of land is located along plaintiff’s northern border which is contiguous to land owned by defendant.

Plaintiff alleged that his possession of the strip of land had been wrongfully disturbed by the defendant who erected a fence across the northern portion of it in July 1982. The erection of the fence terminated plaintiff’s access to the strip.

Plaintiff alleges that the defendant destroyed numerous flowers, shrubs and plants that were on the strip in dispute. Finally, plaintiff claims that less than one year had elapsed since the disturbance and he desires to be maintained and restored to peaceful possession of the property.

The defendant filed a reconventional demand for damages in the amount of $600.00 for the loss of the use and enjoyment of the land in question.

After trial on the merits, judgment was rendered in favor of the defendant, dismissing plaintiff’s possessory action. The trial court held that the plaintiff had failed to meet the requirements of LSA-C.C.P. art. 3658(2) which require that the possessor must allege and prove that he and his ancestors-in-title had possession quietly and without interruption for more than a year immediately prior to the disturbance. Plaintiff appeals from this ruling. We affirm.

FACTS

The plaintiff and the defendant own contiguous property. The plaintiff acquired his one acre tract of land by deed on November 2, 1951. He testified that, at the time of purchase, there was a wire fence which was located 36 feet past what the deed called for on the northern side of the property. The plaintiff testified that he had possessed the disputed area for several years by mowing it and by tending to a flower garden that he and his wife planted there.

At the time the defendant acquired his property in 1978, there was no visible boundary line between the two properties. The plaintiff testified that the wire fence, that was present at the time of the sale in 1951, was eventually torn down about a year before the defendant acquired the adjacent property in 1978. In May 1981, the defendant had his land surveyed and, pursuant to this survey, built a chain link fence across his southern boundary. The fence erected by defendant encompassed the thirty-six foot strip of land which the plaintiff claimed to have possessed. After the defendant’s chain link fence was built, many of the plaintiffs plants were isolated at various distances up to 40 feet north of the chain link fence on property that the defendant was signifying by the presence of the fence that he intended to possess.

The plaintiff’s plants north of the chain link fence continued to grow until July 1982, when the defendant replaced the chain link fence with a barbed wire fence. The plaintiff admitted in his testimony that this second barbed wire fence was placed on the same spot as the chain link fence had occupied. Soon after this fencing change, the defendant destroyed the plaintiff’s remaining plants north of the fence. This possessory action was filed on September 28, 1982.

Both the plaintiff and his wife testified at trial that, after the chain link fence was built, they never went on the disputed strip of land again. They also testified that they did not tend or care for the plants north of the chain link fence except to occasionally water the plants that could be reached with a hose being sprayed from their side of the fence.

The defendant testified that, after the chain link fence was built, he kept the property north of the fence mowed and that, after the fence was changed to barbed wire, he allowed his cattle to graze that area.

The principal issue presented on appeal is whether the plaintiff has met all of the requirements for maintaining the possesso-ry action listed in LSA-C.C.P. art. 3658.

In Louisiana, the possessory action is governed primarily by LSA-C.C.P. art. 3658, which provides:

“To maintain the possessory action the possessor must allege and prove that:
(1) He had possession of the immovable property or real right at the time the disturbance occurred;
(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
(3) The disturbance was one in fact or in law, as defined in Article 3659; and
(4) The possessory action was instituted within a year of the disturbance.”

The law of this subject matter is interpreted in Pitre v. Tenneco Oil Co., 385 So.2d 840 (La.App. 1st Cir.1980), as follows:

“HOW THE RIGHT IS ACQUIRED
“A person acquires the right to possess immovable property by possessing the property quietly and without interruption for more than a year. La.C.C.P. art. 3658(2); La.C.C. art. 3454(2); see also La.C.C. arts. 3449(2) and 3487. The species of possession required to acquire the right to possess is either corporeal possession or civil possession preceded by the corporeal possession of the plaintiff or his ancestors in title. La.C.C.P. art. 3660. In all cases, a person must possess as owner and for himself. Thus, to acquire the right to possess, ‘one must combine the intention of possessing as owner with the corporeal detention of the thing.’ Norton ¶. Addie, 337 So.2d 432, 436 (La.1976).
“Once a person shows he has possessed the property as required by law quietly and without interruption for more than a year, he has proven his right to possess. There is no need to show he acquired this right in the year immediately preceding suit, but only that he obtained the right at one time and that he has not lost it prior to the disturbance. Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975).
“HOW THE RIGHT IS LOST
“A person loses the right to possess immovable property either voluntarily, by transferring or abandoning the property; or involuntarily, by being evicted or expelled for more than a year or by acquiescing a third party’s usurpation of the property for more than a year. La. C.C. arts. 3447, 3448, 3449. A question often arises as to what type of activity by an adverse party will sufficiently interrupt a person’s right to possess so as to usurp his possession and strip him of his right upon passage of more than a year’s time. Not every disturbance is strong or long enough to interrupt another’s right to possess. Disturbances which do not interrupt another person’s right to possess may be challenged in court and the disturber cast for appropriate damages and other appropriate relief. But such minor disturbances will be insufficient, even if unchallenged within a year’s time, to strip the right to possess from the person who presently has that right. See Liner, supra, particularly the per curiam opinion on rehearing, 319 So.2d 778; Plaisance v. Collins, supra [365 So.2d 608 (La.App. 1st Cir.1978)]; Richard v. Comeaux, 260 So.2d 350 (La. App. 1st Cir.1972); Yiannopoulous, supra, § 217 page 582, and Work of the Appellate Courts — 1974-1975, Property, 36 L.L.Rev. 354 (1976).
“Louisiana courts have indicated that for a disturbance to be sufficient to interrupt another’s right to possess, the disturbance must bring home to the actual possessor the realization that his dominion is being seriously challenged. Pittman v. Bourg, 179 La. 66, 153 So. 22 (1934); Souther v. Domingue, 238 So.2d 264 (La.App. 3rd Cir.1970), writ refused, 256 La. 891, 239 So.2d 544 (1970); Hebert v. Chargois, 106 So.2d 15 (La.App. 1st Cir.1958). In addition, the person with the right to possess must acquiesce in the interruption for more than a year without conducting any act of possession or without interfering with the usurper’s possession. La.C.C. art. 3449(2).”

As we apply the principles to the facts at hand, we find that the trial court correctly held that plaintiff failed to meet the requirements of LSA-C.C. art. 3658 as interpreted by Pitre v. Tenneco Oil Co., supra.

A person loses the right to possess immovable property either voluntarily, by transferring or abandoning the property, or involuntarily, by being evicted or expelled for more than a year or by acquiescing in a third-party’s usurpation for more than a year. LSA-C.C. arts. 3447, 3448, 3449, now LSA-C.C. art. 3433. See also, Pitre v. Tenneco Oil Co., supra.

In this case,, we agree with the trial judge that:

“In May 1982, one year after the chain-link fence was built, the property north of that fence had thus been usurped and held for a year without the plaintiff acting to possess the property or interfere with the defendant’s possession of it. Therefore in May, 1982 the plaintiff lost his right to possess the property north of the chain-link fence.”

The act of building a fence around the land (which the plaintiff claimed to possess) was a disturbance that was sufficient to interrupt his right to possess and to bring home to him the realization that his dominion was being seriously challenged. This action was not a mere disturbance of the possession of the plaintiff, but an actual interruption of the plaintiff’s right to possess. Since this interruption to his possession began in May 1981, the plaintiff lost his right to possess the property in May 1982. Plaintiff did not show that he had possessed the property one year before the alleged disturbance in July 1982. The trial court correctly dismissed the plaintiff’s suit.

For these reasons, the judgment of the trial court is affirmed. Plaintiff-appellant is to pay all costs of this appeal.

AFFIRMED.

      . The defendant testified that he was no longer interested in the $600.00 he prayed for in his reconventional demand. Since the trial court did not specifically address the question of the incidental demand, we can assume that it has been dismissed based on defendant’s testimony.


author: YELVERTON, Judge. GUIDRY, Judge,

text:
    William A. LESTER, Plaintiff-Appellant, v. SOUTHERN CASUALTY INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 83-997.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Writ Granted Jan. 7, 1985.
    Thomas, Dunahoe & Gregory, Gerard F. Thomas, Jr., Natchitoches, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, Christine Frank and Henry B. Bruser, III, Alexandria, for defendants-appellees.
    Before GUIDRY, STOKER and YEL-VERTON, JJ.
   YELVERTON, Judge.

William A. Lester, victim of a workmen’s compensation accident, appeals the dismissal of his suit, based on prescription, for additional medical benefits brought against his former employer and its insurer, Southern Casualty Insurance Company. The suit was brought more than one year after the last medical payment. Defendants filed a plea of prescription of one year based on LSA-R.S. 23:1209. Because we agree with the trial court that the claim was prescribed, we affirm the judgment of dismissal.

The facts were stipulated. Plaintiff lost a foot in an accident in July 1970 and was fitted with an artificial limb. The employer’s insurer paid weekly compensation benefits at the statutory maximum rate for the statutory maximum period of time, as provided by law for total permanent disability at the time of the injury. The last weekly benefit was paid on February 23, 1980. The insurer also paid $10,044.69 in medical expenses. This amount did not exceed the statutory maximum in effect when plaintiff was injured. The last medical payment was made January 25, 1980.

On December 22, 1982, Lester filed the present suit for medical expenses of $1,390.27 incurred at Snell’s Limbs & Braces between August 10, 1981, and October 26, 1982.

Defendants successfully pleaded prescription. Lester’s appeal contends that there is no prescriptive period for medical claims incurred after a claimant receives his total benefit payments under the Compensation Act. Alternatively, he argues that if there is a prescriptive period, it is a three year period under R.S. 23:1209 for partial disability, rather than one year.

We reject both arguments.

R.S. 23:1209 at the time of trial, March 17, 1984, read as follows:

§ 1209. Prescription
In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.

It is clear from the following cases that this prescription statute is applicable to the present facts.

In Brown v. Travelers Insurance Company, 247 La. 7, 169 So.2d 540 (1964) the employer's insurer, voluntarily paid plaintiff compensation over a period of 400 weeks and voluntarily assumed responsibility for his medical expenses during that time. Afterwards, plaintiff incurred additional medical expenses. He filed suit on the new claim within a year of the last payment of compensation and medical expenses. The Supreme Court found that prescription under § 1209 had not run against the plaintiff since he had filed his claim within the year.

In Brown the defendant also argued that medical expenses were payments of compensation, and that medical expense payments must cease when compensation does. The Supreme Court found that medical expenses under R.S. 23:1203 were not a part of compensation payment and stated that “as long as such claims are not beyond the statutory maximum and the requirements of LSA-R.S. 23:1209 are met, there is no time limitation for assertion of the right to medical expenses.” (emphasis added.)

In Prejean v. Travelers Insurance Company, 234 So.2d 527 (La.App. 3rd Cir.1970), the employer’s insurer paid compensation for 400 weeks and paid medical expenses for one year thereafter. Plaintiff presented medical bills incurred more than one year after the last payment of compensation but less than one year after the last medical payment, and defendant refused to pay. The issue in that case was whether the new medical claim had prescribed. Relying on the Brown case, the court concluded that the plaintiff’s claim had not prescribed under LSA-R.S. 23:1209, since suit was filed less than a year from the last medical payment.

Considering the reasoning in these two cases it is clear that the prescriptive period under LSA-R.S. 23:1209 is applicable in the present case. The only remaining question is whether it is a one or a three year period.

We agree with the trial court’s resolution of this question and adopt its excellent reasons for judgment, as follows:

“§ 1209 provides two prescriptive periods for where workmen’s compensation payments are made and then later are stopped. From the date of the last payment a three year prescriptive period applies in cases of partial disability. In all other cases a one year prescriptive period applies from the date of the last payment.
“Where the injured worker and the party paying him workmen’s compensation payments have not agreed as to the type of payments that were being paid, the Courts sometimes have had difficulty determining which of these two prescriptive periods apply. In Miller v. Belden Corporation, 386 So.2d 974 (La.App. 3rd Cir.1980), for instance, there was no agreement. The plaintiff, injured employee, in that case had received workmen's compensation benefits for seven weeks at 66⅝% of her weekly wage, 66⅝ % being the maximum rate of benefit payments at the time for both total disability and partial disability. Also, the plaintiff in Miller, supra, was not earning any wages while the benefit payments were being made to her. [Had she been earning wages then her workmen’s compensation payer would have been entitled to reduce her payments if she was partially disabled. Her benefits could not have been reduced if she was totally disabled. Thus where an injured employee is earning wages while receiving benefits, the Courts have an indicator of what type of benefits were being paid to the employee. If the employee’s benefit payments were reduced, then the employee must have been receiving partial disability payments. If they were not reduced, then the employee must have been receiving total disability payments which his workmen’s compensation payer was not entitled to reduce.] With these facts the Court in Miller, supra, was unable to determine whether the payments made to the plaintiff were for total or partial disability payments.
“In order to resolve the issue before it the Third Circuit in Miller, supra, followed the Fourth Circuit’s decision in the similar case of Youngblood v. Belden Concrete Products, 349 So.2d 439 (La. App. 4th Cir.1977), writ denied, 351 So.2d 177 (La.1977). The Court in Miller, supra, as had its sister Court in Young-blood, supra, presumed that the payments were partial disability benefits, thus giving the employee the benefit of the longer 3 years prescriptive period. In support of their presuming in favor of the employee the Third Circuit acknowledged that the legislature intended that the workmen’s compensation statutes are to be interpreted liberally in favor of the employee.
“In this case although there was no agreement as to the nature of the benefits paid, unlike in Miller, supra and Youngblood, supra, there is no doubt but that the payments made to the plaintiff were total and permanent disability payments. The plaintiff received the maximum rate of benefits for 500 weeks. At the time of the plaintiff’s injury only benefit payments for a total and permanent injury were paid at this maximum rate for as long a period of time. If the benefits paid to the plaintiff had been for partial liabiltiy (sic) he would have received payments only for 300 weeks. Also, the plaintiff earned wages during the time he was receiving benefits. Consistent with the benefits the plaintiff was receiving being total and permanent benefits, the defendant did not adjust downward the amount of benefits paid to the plaintiff.
“Since the evidence indicates that the benefit payments made to the plaintiff could have only been total and permanent benefit payments, this Court cannot now presume that those payments were partial disability benefits. Under § 1209 only partial disability benefit payments have a 3 year prescriptive period from the date of last payment. In this case only if this 3 year prescriptive period applied, would the plaintiff’s claims for medical expenses have not prescribed. Instead, § 1209’s 1 year prescriptive period from the date of last payment applied to these medical expense claims. These claims therefore are prescribed, and the plaintiff is barred from recovering for them.”

The judgment dismissing this action is affirmed, at appellant’s cost.

AFFIRMED.

GUIDRY, J., concurs and assigns written reasons.

STOKER, J., concurs for the reasons assigned by GUIDRY, J.

GUIDRY, Judge,

concurring.

Although our ultimate resolution of the issue presented achieves a harsh result, I fully agree that our Supreme Court’s decision in Brown v. Travelers Insurance Company, 247 La. 7, 169 So.2d 540 (1964) and our decision in Miller v. Belden Corporation, 386 So.2d 974 (La.App. 3rd Cir. 1980) dictates the result which must be reached under the facts presented. In my view, the inequity which results from the application of LSA-R.S. 23:1209 under the facts of this case is a matter for legislative-correction.


text:
    Silton FUSELIER, Plaintiff-Appellee, v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY, Defendant-Appellant.
    No. 83-1002.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Richard Vidrine, Ville Platte, for defendant-appellant.
    Errol D. Deshotels, Oberlin, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.
   CUTRER, Judge.

This case involves a dispute over the amount an insurer owes on a homeowner’s policy as a result of water damages sustained to the insured’s house.

On January 12, 1982, the town of Oberlin was hit by a hard freeze and electric power failure. As a result, the water pipes in Silton Fuselier’s attic burst, causing water to pour down through the walls and ceilings in several of the rooms. The insurer, Louisiana Farm Bureau Mutual Insurance Company (Farm Bureau), hired A1 Hebert out of Lafayette, Louisiana, to estimate the damage to plaintiffs house. Hebert appraised the dollar value of the loss at $5,799.13 on January 26, 1982. Plaintiff, being dissatisfied with this estimate, called a contractor, Simon Sonnier, for an estimate. Sonnier examined the house and appraised the damages at $16,707.96. Farm Bureau subsequently sent plaintiff a check dated February 16, 1982, as an offer to settle his entire claim for $5,549.13. Plaintiff refused to cash the check and filed suit to collect the full amount of his damages and the penalties.

The trial judge accepted the testimony of plaintiffs expert witness and awarded plaintiff $16,551.96, which represented the difference between the actual amount of his loss ($16,707.96) and the amount of the policy’s deductible ($250.00). The trial judge also held that the defendant’s failure to unconditionally pay the undisputed amount owed within sixty days of proof of the loss was arbitrary and capricious, thus entitling plaintiff to the penalties and attorney’s fees provided for in LSA-R.S. 22:658. Farm Bureau appeals. We affirm.

Farm Bureau alleges three specifications of error which, in effect, raise two issues. First, whether the trial judge abused his discretion in awarding damages in the amount of $16,557.96. Second, did the trial judge commit manifest error in awarding plaintiff a 12% penalty and attorney’s fees pursuant to LSA-R.S. 22:658?

AMOUNT OF DAMAGES

The trial judge was confronted with two widely disparate estimates of damage. The two experts disagreed as to which parts of the house were in need of repair and, also, the cost of several repairs that both agreed were necessary. The plaintiff’s expert, Sonnier, estimated that plaintiff’s damages were $16,707.96 while the defendant’s expert, Hebert, estimated the damages were only $5,799.13. After hearing both experts explain their estimates, the trial judge accepted the estimate of Sonnier and awarded plaintiff $16,557.96 in damages.

The amount of damages is an issue of fact which is within the trial judge's discretion. Perrodin v. Zander, 441 So.2d 12 (La.App. 3rd Cir.1983), writs den., 444 So.2d 120 (La. 1984). As this court recently stated in Ed Bulliard Co. v. Foretich-Zimmer Const., 451 So.2d 29 (La.App. 3rd Cir. 1984):

“It is axiomatic that appellate courts will not disturb damage awards in the absence of manifest abuse of discretion by the trier of fact. Recherche, Inc. v. Jewelry Jungle, Inc., supra [377 So.2d 1329 (La.App. 1st Cir.1979)]; Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Reck v. Stevens, 373 So.2d 498 (La.1979)....”

After reviewing the record, we cannot say the trial judge abused his discretion in accepting Sonnier’s estimate of the damages. Sonnier is an independent contractor who has built and repaired houses in Oberlin for 34 years. He has first-hand knowledge of the cost of materials and labor involved in repairing houses in the area. On the other hand, the defendant’s expert is a construction supervisor and an independent appraiser in Lafayette with limited recent experience in the repair of houses. As the trial judge noted, Hebert’s estimate was not as thorough as plaintiff’s expert. He did not check the attic, the inside walls, nor did he check with local suppliers and contractors to compare his Lafayette-based estimates with the cost of labor and materials in Oberlin.

Defendant attacks Sonnier’s estimate on the fact that Sonnier was unable at trial to recall the amount of time he allotted for each repair and the costs of the necessary materials at the time of the estimate. For example, Sonnier could not remember the size of the kitchen, yet he estimated the cost of removing and replacing the kitchen molding on a foot basis. Sonnier’s inability to remember the specific components of the estimate that he prepared nine months pri- or to trial is of little consequence. He testified that, when he made the estimates, he considered the cost of labor, the amount of time it takes to complete the repairs, the cost of the necessary materials, and the amount of profit a contractor would charge. Thus, Sonnier clearly demonstrated that he was well qualified to estimate the cost of repairing plaintiffs house. The trial judge’s acceptance of Sonnier’s estimate was well within the discretion accorded to a trial judge on the issue of damages.

PENALTIES AND ATTORNEY’S FEES

The second issue in this case is the trial judge’s decision to award the 12% penalties and attorney’s fees provided by LSA-R.S. 22:658. The applicable portion of the statute provides that insurers who arbitrarily, capriciously, or without probable cause fail to pay any claim within sixty days of proof of loss are liable for the amount of the loss as well as a penalty of 12% of “the total amount of the loss” and all reasonable attorney’s fees. If the insurer has made a “partial payment or tender,” the penalty is 12% of the difference between the amount tendered and the amount actually owed. LSA-R.S. 22:658. On February 9, 1982, the defendant mailed plaintiff a check for $5,549.13 in full settlement of all claims. The defendant stopped payment on this cheek because the mortgagee of plaintiff’s house was not named as payee. Then, defendant mailed plaintiff a second draft sometime around February 16, 1982, for the same amount which represents the amount of their expert’s appraisal minus the policy’s $250.00 deductible. Plaintiff refused to cash these checks because he believed that $5,549.13 was not enough to repair his house. Sonnier estimated the damages at $16,707.96. This appraisal was sent to Farm Bureau; however, the company did nothing further to reconcile the differences in estimates other than mailing the $5,549.13 check. Farm Bureau argues that the mailing of this check within sixty days of proof of damage exonerates the company from penalties and attorney’s fees. We disagree.

An insurer can avoid paying penalties and attorney’s fees by unconditionally tendering the undisputed amount of the claim in cases where there is a reasonable disagreement over the total amount owed. However, the offer of payment in exchange for a complete release of the insured’s claim is not a tender within the contemplation of the statute. O’Brian v. Allstate Ins. Co., 420 So.2d 1222 (La.App. 3rd Cir. 1982); LeBlanc v. Underwriters at Lloyd’s, London, 402 So.2d 292 (La.App. 3rd Cir.1981); Deville v. Louisiana Farm Bur. Mut. Ins. Co., 378 So.2d 457 (La.App. 3rd Cir.1979); Witherwax v. Zurich Insurance Co., 315 So.2d 420 (La.App. 3rd Cir. 1975). Farm Bureau’s insurance adjuster, Floyd Tassin, admits that the checks sent to plaintiff were conditional upon his granting a full release of all claims. Thus, the mailing of the checks does not free Farm Bureau from liability for the penalties and attorney’s fees. The trial court correctly awarded penalties and attorney’s fees.

For these reasons, the judgment of the trial court is affirmed. Defendant-appellant is to pay the costs of this appeal.

AFFIRMED.


author: DOUCET, Judge.

text:
    Mary or Marie Peck SAVOIE, et ux., Plaintiffs-Appellants, v. Perry JUDICE, et al., Defendants-Appellees.
    No. 83-1015.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.

      Olivier & Brinkhaus, John L. Olivier, Sunset, for plaintiffs-appellants.
    Hollier & Ringuet, T. Michael Jordan, Lafayette, for defendants-appellees.
    Before FORET, DOUCET and KNOLL, JJ.
   DOUCET, Judge.

Plaintiffs, Mary or Marie Peck Savoie and Wilson Savoie, owners of a private gravel road situated in Section 78, Township 8 South, Range 4 East, St. Landry Parish, Louisiana, filed a suit against Perry Judice and Judice Sand Company for breach of contract with regard to damages to their road. Plaintiffs had orally agreed with defendants that they could use the road provided it would be restored to its original condition after defendants completed their operations. Defendants hired a motor grader to restore the road to the condition in which they found it. They spread ninety yards of gravel over a period of months. Plaintiffs claim that after defendants had restored the road, defendants used the road to haul out garbage and caused additional damages to the road forcing certain expenditures by plaintiff to restore the road.

The trial court dismissed the plaintiffs’ suit, finding that the plaintiffs failed to carry the burden of showing any further damage to the road. Plaintiffs appeal from that judgment.

When a civil case is appealed the reviewing court is constitutionally mandated to give a thorough review of the trial court’s factual findings. LSA Const. Art. 5, Section 10(B); Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). Farnsworth v. Lumbermens Mutual Casualty Co., 442 So.2d 1340 (La.App. 3rd Cir.1983), writs denied 445 So.2d 452 (La.1984).

The proper standard of review has been defined by the Courts:

“The function of an appellate court in reviewing a damage award is not to decide what it considers an appropriate award on the basis of the evidence, but rather only to review the exercise of the trier of fact’s discretion. Reck v. Stevens, 373 So.2d 498 (La.1979); LSA-C.C. Article 1934(3). A reviewing court might disagree with the amount of the award fixed by a jury, but it should not substitute its opinion for that of the trier of fact. Appellate review of awards for damages is limited to determining whether the trial court abused its much discretion.” Kalmn, Inc. v. Empiregas Corp., 406 So.2d 276 (La.App. 3rd Cir.1981).

Before a reviewing court can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its discretion in making its award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Reck v. Stevens, supra.

In order to affirm the lower court’s judgment, the record must reveal that a reasonable factual basis exists for the findings of the trier of fact, and that these findings are not manifestly erroneous. Farnsworth v. Lumbermens Mutual Casualty Co., supra. A review of the record reveals no abuse of discretion.

Plaintiffs orally agreed to allow Perry Judice to transport truckloads of dirt and other materials over the road on the condition that Mr. Judice would restore it to its original construction after completion of his work. There was some conflict in testimony as to the meaning of the word “original”. Plaintiffs claim that defendants were to restore the road to the condition of a newly built road. However, defendants assert that they were meant to restore the road to its condition as of the beginning of the operations, and that this was done. Mr. Colvin, who was present when conditions for Mr. Judice’s use of the road were discussed, testified that he understood that the road was to be restored to the condition in which Mr. Judice found it.

Defendant Perry Judice admits that he damaged the road, but he asserts that he spent close to $2,000.00 repairing it. He hired a motor grader to restore the shoulders of the road and the road bed. He also had six loads or ninety yards of gravel spread over the road. The testimony of John Breaux, Sr., as well as that of other truck drivers who used the road, indicates that the road was in as good or better condition after the defendants’ restoration than before the commencement of this operation. Plaintiffs, however, argue that the road was not properly restored.

In addition to this claim for damages from the defendants’ use of the road, plaintiffs assert that the day after they had spread additional gravel over the road, the defendants transported several truckloads of garbage over the road while it was wet and caused further damages. Perry Judice and Paul Benoit, who transported the trash, however, testified that the road was not wet and that no damage resulted.

At trial, plaintiffs presented no significant testimony excepting their own as to the damages left unrepaired by the defendants. The witnesses presented by plaintiffs, Michael Golvin and Goris Savoie, testified respectively that an agreement had been made between plaintiffs and defendants and that plaintiffs had spread gravel on the road. Neither testified as to the damages. The only evidence pertinent to the issue of damages was the deposition of Mr. Stelly, who originally constructed the road. He stated that 24 loads of dirt and six loads of gravel would be needed to restore the road to its original condition.

Plaintiffs’ testimony revealed that the road had a sixteen foot bed, five foot shoulders, and five foot ditches at the time it was built. Plaintiff, Wilson Savoie, alleged at trial that defendants had cut the shoulder of the road in repairing it thereby reducing the width of the road. However, there is no evidence of record with regard to the dimensions of the road after the repairs by defendants.

The plaintiff has the burden of proving damages he suffered as a result of the breach of contract. Koncinsky v. Smith, 390 So.2d 1377 (La.App. 3rd Cir. 1980). The plaintiffs did not present substantial evidence of damages. The trial court, therefore, did not abuse its discretion in not granting an award of damages to the plaintiff and in dismissing his suit. We affirm the decision of the trial court. All costs of this appeal are assessed to the appellant.

AFFIRMED.


author: YELVERTON, Judge.

text:
    McKinley Dewayne LONG, Plaintiff-Appellant, v. Tracy Johnson LONG, Defendant-Appellee.
    No. 83-1022.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Ford & Nugent, Howard N. Nugent, Jr., Alexandria, for plaintiff-appellant.
    Broussard, Bolton & Halcomb, Daniel E. Broussard, Jr., Alexandria, for defendant-appellee.
    Before GUIDRY, STOKER and YEL-VERTON, JJ.
   YELVERTON, Judge.

These litigants are the parents of two children, ages four and five, and they have fought over custody of the children in three hearings taking many days during the first year following their separation. The latest courtroom engagement consumed five days and resulted in a judgment of joint custody. The father, McKinley Long, now appeals, contending the trial judge should have found the mother, Tracy, unfit, and that the court should have removed the children from her sole custody, and given sole custody to him.

Based on the recent decision of the Louisiana Supreme Court in Turner v. Turner, 455 So.2d 1374 (La.1984), we agree with appellant that joint custody was not the wisest custodial arrangement given the circumstances of this case, and we set aside that order. However, we cannot agree that appellant is entitled to sole custody; our reading of the trial judge’s findings of fact and excellent reasons for judgment, suggests to us that he may have favored retention of sole custody by the mother, but that he was dissuaded from that decision by a mistaken belief that a joint custody ruling was mandated by the presumption established by Civil Code art. 146. Since the joint custody presumption of Article 146 has now been clarified by the Supreme Court in Turner, supra, we shall remand this case, as was done in Turner, to enable the trial court to decide which parent will have sole custody, if the court thinks that is in the best interest of the children.

In Turner the Supreme Court said:

“The Legislature ... established the rebuttable presumption that joint custody arrangements would be in the child’s best interest. C.C. 146(C). This presumption has caused some confusion. Some lower courts seem to believe that the article requires granting joint custody. Such is not the case; the article clearly provides that there is only a presumption in favor of joint custody, and that it may be rebutted upon a proper showing that a different arrangement is in the child’s best interest....”

The court explained that once a party seeking to attain or retain sole custody shows that custody in one parent is in the best interest of the child, the presumption is destroyed. The court also said that trial courts do not complete their judicial function by simply resting on the legislative presumption to solve the case, but must become active participants in the case, and pursue actively that course of conduct which will be of the greatest benefit to the child.

The Court in Turner examined the history of the extensive litigation in that case, and observed that the parties were unable to settle their differences amicably, or to insulate the children from their battles, and that these deep-running conflicts between the father and the mother could doubtfully be quelled by any court. The children were caught in the cross fire of these conflicts. Noting that this type of ease exemplified an “other factor” within the scope of Civil Code art. 146(C)(2)(i), the court concluded that the presumption in favor of joint custody had been rebutted, because the best interest of the children could not be served by a joint custody arrangement. It then remanded the case to the district court to determine which of the two parents was better suited for serving the best interest of the children.

Similarly, in our present case, the relationship between these parents has been a continuous conflict. The marriage itself did not last long. Married in 1979, the couple separated in April 1982 after these children were born. The separation date marked the beginning of a litigious year of charges and recriminations, full of pleadings, numerous hearings, and many days of trial testimony, much of which was an attack on the morals of one parent by the other. Bent on finding fault, the husband entered into an unusual contract of employment with a team of private investigators: the contract provided for a generous fee, but only if the surveillants unconvered evidence of the mother’s wrongdoing. The whole purpose of the last voluminous custody hearing was to use this evidence to establish the unfitness of the mother, Tracy, and take custody from her.

That evidentiary onslaught succeeded only in establishing what Tracy already admitted, i.e., a relationship with one Winfred Holt. Other alleged sexual encounters of the mother were found by the trial court to be “wholly unsubstantiated”, the evidence being, in the court’s further words, “either totally lacking or extremely tainted.” The relationship with Holt did not adversely affect the children, according to the trial judge, who made several specific findings of fact that Tracy was a good mother, and that he could find no fault with the care she had provided the children.

The court ruled, but McKinley has been unable to accept these findings of the trial court. In his joint custody plan filed in the record, as ordered, in August 1983, after the judgment ordering joint custody was handed down, he made the observation, concerning the moral fitness of Tracy, that she was “completely devoid of moral values” and “[gjiven to public displays of base and low gestures.” Of her mental and physical health, he said she was “[ijmpul-sive and irrational”, and “spiked by temper tantrums, cursing fits and generally a lack of social control.” He said he would try to make joint custody work, but doubted it would work because of Tracy.

This attitude of continuing conflict presages, at least on McKinley’s part, little hope that these parents can insulate their children from their private animosities. For joint custody to work, there must be a willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent. Civil Code art. 146(C)(2)(j). Neither parent in this case sought joint custody, McKinley does not want it now, and, although Tracy did not appeal, she contended at the trial level that she should retain sole custody. Considering the litigious propensities of this couple, it is doubtful that any court can quell their conflicts sufficiently to make a joint custody arrangement serve the best interest of the children.

We believe that the trial court in the present case was troubled by the general uncertainty surrounding the joint custody presumption which the Turner case has now clarified. The trial court found that “both parents are good parents, and that they care for and love their children very much.” (Similar language and reasoning was employed by the Court of Appeal in Turner, 445 So.2d 35, 38 (La.App. 4th Cir. 1984)). For this reason the trial court stated he was “required to follow the mandate of Civil Code Article 146.” This resulted in his award of joint custody. We believe it will come as a relief to the trial court that Turner enables us to remand this case for his further consideration.

For these reasons, we remand, with instructions to the trial court to reconsider its custody judgment herein in the light of the decision in Turner, supra, and to conduct such further proceedings, or' hear such additional arguments, as in its discretion it deems necessary in the case, and thereafter to determine which of the two parents is better suited for serving the best interests of the children. We do not wish to foreclose the authority of the district court, on remand, to render a joint custody decree, if in fact the court considers that is best, but we feel constrained to add the caution, as was done in Turner, that the court not render a joint custody decree absent a clear showing by both of the parties, that they are willing and capable of serving the children to the children’s best interest.

Pending that determination on remand, provisional custody is awarded to the mother. The allocation of costs will await the judgment of the court below.

REVERSED AND REMANDED.


text:
    KAPLAN TELEPHONE COMPANY, Plaintiff-Appellant, v. CITY OF KAPLAN BOARD OF ADJUSTMENT, Defendant-Appellee.
    No. 83-1047.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Writ Denied Jan. 7,1985.

      Gary E. Theall, Abbeville, for plaintiff-appellant.
    Wade A. Mouton, Kaplan, for defendant-appellee.
    Before GUIDRY, STOKER and YEL-VERTON, JJ.
   STOKER, Judge.

This case involves the granting and subsequent rescinding of an action by defendant authorizing a variance permitting the Kaplan Telephone Company to construct a microwave radio communication tower and parking lot on property which has a zoning classification preventing such a tower. We reverse the judgment of the trial court, finding that the action rescinding the variance was improper.

Most of the facts of this case are undisputed, and the parties stipulated to them as follows:

“On August 15, 1979, the KAPLAN TELEPHONE COMPANY requested the Zoning Commission for a change in the zoning classification of Lots 1, 2 and the south one-half of Lot 3 of Block 27 of the City of Kaplan, Louisiana, to construct a 180 foot microwave radio communication tower and parking lot thereon. A notice of public hearing was published pursuant to the statute on September 12, 19, and 26, 1979, seeking to re-zone the property from R-l residential to R-2 residential. A meeting of the Zoning Committee of the City of Kaplan was held on October 3, 1979, and a public hearing had on the re-classification of the property. Another meeting of the Kaplan Zoning Committee was held on December 5, 1979, wherein reclassification was denied by a unanimous vote. The City Council of the City of Kaplan, after due advertisement, held a public meeting on re-classifation [sic] of the subject property on January 14, 1980. This re-elassifaction [sic] was denied. By letter dated January 14, 1980, the KAPLAN TELEPHONE COMPANY requested that, ■ should the request for re-classifacation [sic] be denied, then the BOARD OF ADJUSTMENTS grant to him a variance to install the tower as per his previous request. At a Board of Adjustments meeting on January 14, 1980 the variance was granted. Protesting citizens and their attorney, Paul Hebert, were present at both the meetings on January 14, 1980, and took part in the meetings. No appeal was taken by any of those citizens within the delays provided by law.
“On November 23, 1982, a citizens’ group represented by Bernard Marcantel appeared at a meeting of the City Council of the City of Kaplan requesting that the BOARD OF ADJUSTMENTS recognize that the variance granted to the KA-PLAN TELEPHONE COMPANY for construction of the microwave tower was invalid. The reasons cited for its invalidity were lack of due notice of the BOARD OF ADJUSTMENTS meeting wherein the variance was granted, and that the action taken could only be done by re-classifaction [sic] of the property under the zoning ordinance which re-classification was specifically denied by the City Council on January 14, 1980.
“A Board of Adjustments meeting was also held on November 23, 1982. The attorney for the citizens’ group was again heard and he presented his arguments requesting that the Board of Adjustments recognize the invalidity of the variance. City Attorney, Michael J. Her-pin, advised the chairman and board members of the BOARD OF ADJUSTMENTS that in his opinion the variance was illegally granted. The BOARD OF ADJUSTMENTS then voted to rescind the variance previously granted to the KAPLAN TELEPHONE COMPANY to construct a microwave tower.
“By letter dated November 24, 1982, KA-PLAN TELEPHONE COMPANY and LYTLE TURNLEY were notified that at the meeting of the BOARD OF ADJUSTMENTS on November 23, 1982, the variance granted on January 14, 1980, was rescinded, and they were no longer authorized to construct a microwave tower or parking lot on the property in question. On December 22, 1982, KAPLAN TELEPHONE COMPANY and LYTLE TURNLEY filed a Petition with the district court to review that decision.”

The district court ruled that the variance granted on January 14, 1980 was invalid, and that the Board of Adjustment’s action in rescinding the variance on November 23, 1982 was valid. On appeal, the Telephone Company argues several assignments of error which concern two primary issues in this case: (1) Whether the action of the Board of Adjustment on January 14, 1980 granting the variance was valid; and (2) whether the action of the Board of Adjustment on November 23, 1982 rescinding the variance was valid.

GRANTING OF THE VARIANCE

On appeal, counsel for the Telephone Company points out that opponents to the variance had an opportunity to be fully heard at the advertised meetings of the City Council in which re-classification of the property was refused. At the time the variance was granted, the membership of the Board of Adjustment and the City Council was the same. It was stipulated that the opponents of the variance were present and represented at the meetings of the City Council and the Board of Adjustment on January 14, 1980. The Telephone Company argues that because the opponents were fully heard at the various meetings on January 14, the meeting of the Board of Adjustment need not have been advertised as the Board simply announced its decision at that meeting. We disagree.

Even though the membership of the City Council and the Board of Adjustment was the same, it is clear that their meetings were held for different purposes. The issue considered by the'City Council was that of re-classification. The issue considered by the Board of Adjustment was whether to grant a variance. Proper advertisement for the City Council meetings was not sufficient to cover that of the Board of Adjustment. Despite the fact that the opponents of the variance had actual notice of the meeting and were present to argue their case, this does not overcome the failure to give the required notice. Tassin v. City of Marksville, 411 So.2d 1240 (La.App. 3d Cir. 1982).

The Board of Adjustment takes the position that its action on January 14, 1980 was patently void and that it correctly recognized such invalidity on November 23, 1982. In considering this position we must take note of the rule of law which holds that zoning ordinances are presumed to be valid and the parties attacking their validity have the burden of proof. Southside Civic Association, Inc. v. Guaranty Savings Assurance Company, 339 So.2d 323 (La.1976). We consider that the same rule should apply to actions of boards of adjustment. Therefore, we must determine whether defendant proceeded properly in its attempt to rescind the variance.

It is undisputed that no appeal was taken from the decision of the Board of Adjustment granting the variance as provided in LSA-R.S. 33:4727(E). Counsel for the Telephone Company takes the position that the failure to appeal precludes any future attack on the granting of the variance. This is true insofar as the approach taken here is concerned. Opponents of action taken by a zoning commission or board of adjustment are not entitled to a review of the merits of the action after appeal delays have expired. See Greenup v. City of New Orleans, 212 So.2d 235 (La.App. 4th Cir.1968).

Since we are of the opinion that the action granting the variance is valid until properly rescinded, we will now consider whether the action of the Board on November 23, 1982 was sufficient to rescind the variance.

RESCINDING OF THE VARIANCE

It is argued on appeal that the Board of Adjustment does not have the authority to review the validity of a previously granted variance, that the Board meeting on November 23, 1982 was conducted without proper notice, and that the rescission of the variance was arbitrary. Because we find that proper notice was not given of the November 23, 1982 meeting, we do not consider whether the Board had the authority to rescind the variance or whether it acted arbitrarily in doing so. We do express doubt as to whether an action may be taken based solely on the objection of nearby landowners. See Carlo Ditta, Inc. v. Parish of Jefferson, 315 So.2d 361 (La.App. 4th Cir.1975), writs denied, 320 So.2d 559, 560 (La.1975).

We now address the question of notice relative to the November 23, 1982 meeting. The comprehensive zoning plan for the City of Kaplan provides for the creation of the Board of Adjustment as set out in LSA-R.S. 33:4727. The zoning plan provides further, “All meetings shall be open to the public and preceded by due advertisement.” It appears that the only notice given of the November 23 meeting was a notice posted on the bulletin board outside of the mayor’s office in the City Hall. Defendant argues that the Telephone Company had actual notice of the meeting based on the testimony of the current mayor. The mayor testified that he went to the office of Mr. Lytle Turnley, president, general manager and major stockholder of the Telephone Company, and informed him that there was to be a Board of Adjustment meeting to consider whether the variance would be rescinded. The mayor admits that he did not tell Mr. Turnley the date of the meeting because he was not aware of it at the time. Even if this contact can be construed as actual notice to the Telephone Company, the requirements of “due advertisement” are still not met. See Tassin v. City of Marksville, supra.

As previously stated, the Kaplan Board of Adjustment was established pursuant to the provisions of LSA-R.S. 33:4727. That provision provides in part as follows:

“A. (1) The local legislative body may provide for the appointment of a board of adjustment, and in the regulations and restriction adopted pursuant to the authority of R.S. 33:4721 through R.S. 33:4729 may provide that the board may determine and vary their application in harmony with their general purpose and intent and in accordance with general or specific rules contained therein.”

One of the specific rules referred to in Section 4727 is LSA-R.S. 33:4724 which sets out the requirements for notice of the public hearings which must be given prior to changes in zoning regulations or restrictions. Notice of the hearing must be published once a week for three weeks in the official journal of the municipality or in a paper of general circulation. Such notice is also required for amendments in regulations and restrictions. LSA-R.S. 33:4725. We are of the opinion that this is the type of “due advertisement” required for the Board of Adjustment’s meetings. Since the Telephone Company has timely appealed the action of the Board on November 23, 1982, we find that the action taken on that day in rescinding the variance is invalid.

For the above reasons, the judgment of the trial court upholding the rescission of the variance is reversed.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there be judgment in favor of the Kaplan Telephone Company upholding the granting of the variance.

Costs at trial and on appeal are assessed against defendant-appellee.

REVERSED AND RENDERED.


author: FORET, Judge.

text:
    Richard L. BENOIT, Sr., Plaintiff-Appellant, v. GIANT RENTALS, INC. and ABC Insurance Company, Defendants-Appellees.
    No. 83-1055.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Edwards, Stefanski & Barousse, Stephen A. Stefanski and Russell Zaunbrecher, Crowley, for plaintiff-appellant.
    Andrus, Preis & Kraft, Gregory J. La-Borde and Andrew Meyers, Lafayette, for defendants-appellees.
    Before FORET, DOUCET and KNOLL, JJ.
   FORET, Judge.

This appeal arises out of a workmen’s compensation suit filed by Richard Benoit, Sr. against his former employer, Giant Cleaning Systems, Inc. (Giant) and its insurer, Commercial Union Insurance Company. After a trial on the merits, the trial court rendered judgment in favor of the defendants, dismissing the plaintiff’s suit. It is from this judgment that the plaintiff appeals. The issues presented on appeal are:

(1) that the trial court erred in failing to find that the plaintiff was permanently partially disabled and ■
(2) that it erred in failing to award medical expenses to the plaintiff.

We affirm the judgment of the trial court.

The plaintiff was employed by the defendant, Giant, in its oil rig cleaning service when he was pinned at chest level between two of the company’s vehicles on July 24, 1981. The plaintiff began working for Giant in June of 1981. The plaintiff was taken to the Rayne Branch Hospital that same day where he was seen by Dr. John Guidry. Dr. Guidry diagnosed the plaintiff as having sustained a rib fracture and treated him by applying a chest splint and prescribing pain medication. Plaintiff saw Dr. Guidry for three follow-up visits and was discharged from his care on September 15, 1981, after telling the doctor that he had had no pain for two weeks.

Plaintiff quit his job with Giant shortly after that on October 26, 1981. He took a job at that time with Power Rig and was employed by them for a short length of time. After he left Power Rig, plaintiff went to work as a derrickman for Pernie Bailey until December of 1982. This suit was filed on May 21, 1982, and plaintiff did not seek medical help again until May 25, 1982, at which time he consulted Dr. Michael Heard, an orthopedic surgeon. Dr. Heard referred plaintiff to Dr. James Do-mingue, a neurologist, and they concluded that the plaintiff was suffering from inter-costal neuralgia caused by the fractured ribs. Intercostal neuralgia is an irritation of the nerves around the fracture site. He was given an injection known as a “pain block” which anesthetizes the area either permanently or temporarily depending upon the patient involved. He received the first injection in June of 1982 and a second one in February of 1983. The plaintiff left his job at Pernie Bailey in December of 1982 and began working as a meat cutter in his brother’s business in Lake Charles. The plaintiff has been employed by his brother since that time at a salary considerably less than that which he was earning with any of his three previous employers.

Plaintiff alleged that he was unable to perform the work that he had been doing at the time of his accident at Giant without severe pain and discomfort and was therefore totally and permanently disabled. The trial court found, after consideration of all of the evidence presented, that the plaintiff had not been working in such substantial or appreciable pain as to render him disabled. Plaintiff continued to work in oilfield related jobs for one and one-half years after the accident, never complaining of his pain and discomfort to anyone except his wife. Dr. Heard testified in his deposition that he was unable to assign any disability rating to the plaintiff at the time and had. not restricted his work activity. Plaintiff was told that he could do whatever he felt he was able to do. Plaintiff’s testimony as to why he left Pernie Bailey was inconsistent, saying first that the pain forced him to quit, then, under cross-examination, that he had been laid off, then, under redirect, that the pain was responsible.

In Simpson v. S.S. Kresge Co., 389 So.2d 65 (La.1980), the Supreme Court said, at page 67:

“An injured employee is deemed partially disabled when he is unable to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience. La. R.S. 23:1221(3). In each case, it is the totality of the evidence, medical and lay, which must be examined by the court in making its determination of whether to grant an award for disability. Crawford v. Al Smith P & H Service, Inc., 352 So.2d 669 (La.1977); Tontillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975). In the final analysis, it is the judge’s responsibility in a workmen’s compensation case to determine if and to what extent a plaintiff suffers a disabling injury which is compensable. Ton-tillo v. Liberty Mutual Insurance Company, supra. Moreover, on appellate review, a finding of fact by the trial court should not be disturbed unless it is clearly wrong. Arceneaux v. Domingue, 365 So.3d 1330 (La.1978).”

This Court agrees with the determination of the trial court that the plaintiff failed in sustaining his “burden of proving to a legal certainty and by a reasonable preponderance of the evidence that he is disabled”. Augustine v. Courtney Construction Company of Alexandria, Inc., 405 So.2d 579 (La.App. 3 Cir.1981), writ denied, 407 So.2d 735 (La.1981).

The trial court did not award the medical expenses incurred by plaintiff and with this we can find no error. It is not clear from the record that Dr. Guidry was paid by the plaintiff, but it seems that the bills were made in the defendant’s name and sent to them. The evidence concerning their payment is not before us; we therefore cannot say that the trial court was clearly wrong in failing to award this element of the medical expenses. The expenses for Dr. Heard’s services were incurred subsequent to the filing of this suit and the bill contained in the record indicates that the purpose of the initial visit was an “attorney evaluation”. We feel that the plaintiff failed to establish that the expense was for treatment rather than in preparation of litigation in light of the fact that Dr. Heard was not consulted until after suit was filed and plaintiff’s failure to seek medical help at an earlier date for what he alleges to be a severe and chronic problem. “Employers and their insurers are not liable for medical expenses incurred for purposes of litigation.” Butts v. Insurance Co. of North America, 352 So.2d 745 (La.App. 3 Cir.1977), writ denied, 354 So.2d 206 (La.1978). We find that the trial court was not clearly wrong in failing to award medical expenses to the plaintiff.

Accordingly, the judgment of the trial court in favor of the defendants, Giant Cleaning Systems, Inc. and Commercial Union Insurance Company, dismissing plaintiff’s suit is hereby affirmed. All costs are to be borne by the plaintiff-appellant.

AFFIRMED.


author: KNOLL, Judge.

text:
    Joseph THIBODEAUX, Plaintiff-Appellant, v. LOUISIANA OFFICE OF EMPLOYMENT SECURITY, Defendant-Appellee.
    No. 83-1058.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.

      Rogers & St. Romain, John M. Crochet, Lake Charles, for plaintiff-appellant.
    James A. McGraw, Baton Rouge, Rag-gio, Cappel, Chozen & Berniard, Chris Tra-han, Lake Charles, for defendant-appellee.
    Before FORET, DOUCET and KNOLL, JJ.
   KNOLL, Judge.

Joseph ■ Thibodeaux (hereafter Thibo-deaux), a former employee of General Tire Service, appeals a denial of unemployment benefits by the Louisiana Office of Employment Security (hereafter Employment Security). The trial court affirmed Employment Security’s determination that Thibo-deaux was properly terminated for misconduct connected with his work. We reverse, finding the employer did not establish Thi-bodeaux’s disqualifying misconduct.

Thibodeaux was employed by General Tire Service as a tire changer and mechanic for approximately one month. He worked from 7:30 a.m. to 5:30 p.m., five and one-half days per week and earned $4.00 per hour. Thibodeaux testified that he was discharged by the shop foreman for having an accident and for not staying clean. The accident occurred approximately two weeks before his discharge. Thibodeaux received no uniforms, thus he was required to wear his own clothes to work. He went to work clean and shaven on Mondays but wore the same clothes for the remainder of the week. Thibodeaux received no comments nor warnings about his working clothes, but was told that he had to shave. Thibo-deaux shaved whenever he was told to do so; his reason for not shaving daily was because it irritated his skin. He admitted that he did not see a physician regarding the skin irritation and that he had been warned. about his failure to shave more often.

The appeals referee made the following conclusion:

“... [T]he claimant was discharged for failing to follow a reasonable request of the employer. The claimant, by his own testimony, had been warned and advised to shave, however, he chose to shave only one day per week and wore the same clothes to work for an entire week while he was employed by the named employer. Since the claimant had been warned, he should have been aware of the employer’s desires in this case.

In the absence of fraud) which is not at issue in the instant case, the facts are conclusive and we must accept them. LSA-R.S. 23:1634; Southeastern Louisiana University v. Shelton, 431 So.2d 432 (La.App. 1st Cir.1983); Simmons v. Gerace, 377 So.2d 407 (La.App. 2nd Cir.1979). Misconduct sufficient to disqualify a claimant from receiving unemployment compensation has been consistently defined to mean an act of willful or wanton disregard of the employer’s interest, or a deliberate violation of the employer’s rules. See Morris v. Gerace, 353 So.2d 986 (La.1977) and Horns v. Brown, 243 La. 936, 148 So.2d 607 (La.1963). But in every case the misconduct must be employment related. Morris, supra.

The employer has the burden of establishing the disqualifying misconduct of the employee by a preponderance of competent evidence. Banks v. Administrator of Dept. of Employment, 393 So.2d 696 (La. 1981); Ealy v. Sumrall, 401 So.2d 520 (La.App. 2nd Cir.1981); Sykes v. Doyal, 278 So.2d 819 (La.App. 2nd Cir.1973); Gardere v. Brown, 170 So.2d 758 (La.App. 1st Cir.1964). The Louisiana Employment Security Law is remedial social legislation that is construed liberally and in the interest of the statute’s beneficiaries. Craighead v. Administrator, Etc., 420 So.2d 688 (La.App. 2nd Cir.1982), writ denied, 422 So.2d 154 (La.).

Since the case sub judice has reached appellate review, we note that in addition to appellant’s brief, two briefs submitted by Employment Security, one from the office in Baton Rouge and one from the office in Lake Charles, each requests a reversal of the district court’s judgment because the employer failed to carry its burden of proof by a preponderance of the evidence that Thibodeaux was discharged for misconduct. We agree.

All parties having an interest in the case were notified of the time and place for the appeals hearing. Thibodeaux appeared at the hearing and gave testimony under oath. We find his testimony candid and sincere. The employer did not attend nor participate in the hearing, and offered no evidence to support its charge of misconduct.

The record is clear the employer failed to meet the standard of proving misconduct by a preponderance of competent evidence. Ealy, supra. Further, in order to discharge an employee for misconduct, there must be an intentional wrongdoing. LSA-R.S. 23:1601; Banks, supra. Since the employer offered no evidence, we look to the referee’s conclusions, who placed great emphasis on the fact that Thibodeaux never consulted a doctor about his skin irritation. This was clear error. Thibo-deaux was never requested to consult a doctor by his employer. In trying to comply with his employer’s request and warnings, in spite of his skin irritation problem, he did shave when his employer warned him with the exception of one occasion. His employer called him in and warned him about not shaving. Thibodeaux explained his skin irritation problem to his employer and it was on this occasion that Thibodeaux did not shave. Thibodeaux was then fired. Under these circumstances, we find that there was no showing that Thibodeaux intentionally did wrong.

For the foregoing reasons, it is ORDERED, ADJUDGED and DECREED that the district court’s judgment is reversed and set aside, and there is judgment herein in favor of appellant, Joseph Thibodeaux, against the Louisiana Office of Employment Security, entitling Joseph Thibodeaux to benefits under the Louisiana Employment Security Law. This matter is remanded to the Board of Review of the Office of Employment Security for an order directing payment to Joseph Thibo-deaux for unemployment compensation benefits. All costs are assessed to appellant’s employer, General Tire Service.

REVERSED, RENDERED AND REMANDED.


text:
    William Joseph CAMPBELL, Plaintiff-Appellant, v. Beverly CAMPBELL (Hulin), Defendant-Appellee.
    No. 83-1032.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.

      Donald R. Jory, Jennings, for plaintiff-appellant.
    Knight & Miller, Wendell Miller, Jennings, for defendant-appellee.
    Before FORET, DOUCET and KNOLL, JJ.
   KNOLL, Judge.

William J. Campbell appeals from a judgment increasing child support for his two minor children, from $225 to $325 per month, contending the trial court erred in failing to consider a change in his former wife’s financial situation. We affirm, finding the trial court gave due consideration to the mother’s financial condition and did not abuse its discretion in increasing child support.

William J. Campbell and Beverly Ann Coles were married on September 25, 1972. During their marriage two children were born, namely Melissa and Cary, who are ages eight and five respectively. William and Beverly physically separated on September 22, 1978, and were legally divorced on January 4, 1980. The trial court granted Beverly custody of the two minor children, and William was ordered to pay child support at the rate of $250 per month. On February 25, 1982, the trial court adjudged William delinquent in child support payments totaling $2,000, and reduced his monthly child support payments to $225. On September 16, 1983, Beverly ruled William into court to recover delinquent child support payments for August and September 1983, to have William held in contempt for failing to pay child support timely, and to increase child support. It is this judgment which William appeals. The trial court found William in contempt of court for his willful disobedience in failing to pay child support as ordered, and sentenced him to serve thirty days in the parish jail. William does hot appeal this portion of the judgment.

The trial court is vested with much discretion in setting the ’amount of child support and such award will not be disturbed on appeal unless the trial court has abused its discretion or committed manifest error in its appreciation of the facts. Trice v. Trice, 428 So.2d 1265 (La. App. 3rd Cir.1983). To modify a judgment of child support, the litigant requesting the adjustment of the prior award has the burden of proving a change in the circumstances of one of the parties. Hyams v. Hyams, 365 So.2d 527 (La.App. 3rd Cir.1978). The earnings and income of a parent’s second spouse constitute a community asset and must be considered in determining the amount of child support. Marcus v. Burnett, 282 So.2d 122 (La.1973).

Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children. LSA-C.C. Art. 227. The degree of parental support is determined by the needs of the child as well as the circumstances of those who are obligated to pay. LSA-C.C. Art. 231; Flynn v. Flynn, 434 So.2d 1161 (La.App. 1st Cir. 1983). The duties of preparing meals, washing clothes, providing transportation and shelter, furnishing care and guidance, and performing all day-to-day services that are demanded of the custodial parent contribute substantially to the mutual obligation of support. Ducote v. Ducote, 339 So.2d 835 (La.1976).

Beverly sought an increase in child support because of her decrease in income, the rising costs of living, and the increase in William s income. In 1982 William remarried after child support was reduced. His present wife is gainfully employed. He is employed by Welltech, Inc., as a driller, drawing a gross average monthly salary of $1,667.11. In comparison, when his monthly child support payments were reduced in early 1982 to $225, his monthly income was $1,471. After the reduction of child support, William remarried and his monthly salary increased. His 1982 Federal Income Tax Return reflects an adjusted gross income of $26,314.49. The record is clear that with William’s increase in his monthly salary, coupled with a community income interest from his present wife, he is able to pay the increase in child support.

The trial court fully considered Beverly’s financial ability to contribute to the support of the children. She and her present husband operate a family business from their family home which is a mobile home. In 1982 she and her husband earned approximately $1,300 a month. In addition to financial support, she also provides the children shelter, education, food, clothing, day-to-day care, and supervision.

After a careful review of the record, we find the trial judge fully considered the change of circumstances and did not abuse his discretion in increasing child support to $325.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against defendant-in-rule, William J. Campbell.

AFFIRMED.