text:
    Helen Jeane FREDERICKS v. Steven Lee FOX.
    No. CA 84 0365.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    H. Sanders O’Neal, Houma, for plaintiff and appellee Helen J. Fredericks.
    Ralph D. Hillman, Thibodaux, for defendant and appellant Steven Lee Fox.
    Before COLE, CARTER and LANIER, JJ.
   COLE, Judge.

The single issue in this case is whether or not the Louisiana court has “continuing jurisdiction” to determine a custody matter involving a child who resides in another state with his custodial parent.

Steven Lee Fox and Helen Jeane Freder-icks were married in 1977. One child, Corey Lee Fox, was born of this marriage. The parties resided in Terrebonne Parish. In July of 1980 they separated and in September of 1980 Helen Fredericks filed a petition for separation in the Thirty-Second Judicial District Court, Parish of Terre-bonne. The trial court granted custody of the child to Ms. Fredericks, set visitation rights and ordered Mr. Fox to pay $300 monthly in child support.

In October of 1981, Ms. Fredericks and the child moved to Alabama and have resided there ever since. According to Mr. Fox’s brief, he obtained a judgment of divorce in the Seventeenth Judicial District Court, Parish of Lafourche, in June of 1982.

In October of 1983 Mr. Fox filed a petition for joint custody, in the Thirty-Second Judicial District Court. Ms. Fredericks was served personally by law enforcement officials in Alabama. She filed an “Exception of Jurisdiction” alleging, among other things not at issue here, that since the child was no longer present in or domiciled in Louisiana, the Louisiana court had no juris-' diction, citing La.Code Civ.P. art. 10 A(5).

The trial court granted the exception, noting neither Ms. Fredericks nor the child had been Louisiana domiciliaries or residents since October of 1981. The court accordingly dismissed Mr. Fox’s petition for joint custody. Mr. Fox then filed this appeal.

Appellant contends the court erred in failing to recognize that the Terrebonne court, as the court of original jurisdiction, has “continuing jurisdiction” so as to be able to decide the custody matter. Appellant cites several appellate court decisions but overlooked an important Supreme Court case as well as a comprehensive set of laws which deal specifically with this issue.

La. Code of Civ.P. art. 10 A(5) states a court will have jurisdiction in a custody matter if the minor “... is domiciled in, or is in, this state.” In 1977, the Louisiana Supreme Court settled the dispute among the circuits as to whether or not a Louisiana court continued to have jurisdiction over child custody matters after the child was no longer a resident of Louisiana. In Odom v. Odom, 345 So.2d 1154 (La.1977), the court held the concept of “continuing jurisdiction,” although valid in certain areas of domestic law, did not necessarily apply to cases involving custody of children who no longer resided within the state. The court cited La.Code Civ.P. art. 10 A(5) and stated that absent some “compelling reason” for the Louisiana court to continue to exercise jurisdiction, the district court in such a ease was without jurisdiction to decide the custody issue.

The “Uniform Child Custody Jurisdiction Law” (La.R.S. 13:1700 et seq.) became effective in this state on October 1, 1978. Section 1702(A)(1) states jurisdiction would exist in this state if it is the home state of the child at the time the proceeding was commenced, or if it had been the child’s home state within six months of the commencement of the proceeding. At the time the rule for custody change was filed the child and his mother had been residing in Alabama for approximately two years, therefore there can be no jurisdiction under this section.

Subsection A(2) of the statute also establishes this state would have jurisdiction when to do so would be in the best interest of the child because there is a “significant connection” with this state and there is “... substantial evidence concerning the child’s present or future care ...” available in this state. There is nothing in the record to indicate the existence of either of these two factors. The child moved from Louisiana to Alabama when he was three and a half years old. He has resided in Alabama, with his mother, for the past three years. The fact that he was born in this state and the fact that his father resides here do not outweigh the greater “connection” he has with his state of domicile, Alabama. Concerning the availability of evidence, a court would undoubtedly be interested in gathering information about the child’s present living conditions and lifestyle when considering any modification of the custody order. This evidence would be more readily available if the matter were heard in Alabama.

We conclude that Alabama, as the state where the child and his mother have lived for several years, has a far greater interest in this matter than Louisiana and is the more appropriate forum to determine the custody issue. The trial court did not err in concluding it was without jurisdiction. For these reasons, the judgment of the trial court is affirmed. Costs are to be paid by appellant.

AFFIRMED.

      . There is no copy of the divorce judgment in the record; however, the existence of the divorce judgment is not material to the issue presented.

      . La.R.S. 13:1702 reads as follows:
      "A. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
      (1) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
      (2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
      (3) The child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
      (4)(i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with Paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.
      "B. Except under Paragraphs (3) and (4) of Subsection A, physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
      “C. Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.”

      . Even if we were to determine the Louisiana court had jurisdiction over the matter, the court may decline to exercise jurisdiction if the court of another state is a more convenient forum. La.R.S. 13:1706.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Cyrus OLIVER.
    No. 84-KW-0649.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Ossie Brown, Dist. Atty., Baton Rouge, for State.
    David Price, Baton Rouge, for Cyrus Oliver.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   EDWARDS, Judge.

Defendant was arrested and charged with unauthorized use of a movable with a value in excess of $1,000.00, in violation of LSA-R.S. 14:68. He filed a motion to suppress physical evidence seized at the time of his arrest. After a hearing the trial judge denied the motion to suppress, and this court denied defendant’s application for writs. Thereafter, on defendant’s application, the Louisiana Supreme Court granted a writ and ordered the case remanded to this court for briefing, argument, and opinion.

On February 22, 1984, at about 9:30 p.m., SNAP (Special Narcotics Action Patrol) officers of the Baton Rouge Police Department observed four black men standing by a pick-up truck in the parking lot of the Blue Rose Cafe in Baton Rouge. The SNAP program is the result of a crackdown by the Baton Rouge City Police Department on the possession of weapons and narcotics, whereby off-duty police officers patrol lounges and street corners checking for drugs and weapons. According to Detective Paxiao, the officers approached the group and requested identification because they were “hanging around one car.” Officer Paxiao testified that after verifying the identification of defendant’s three companions and sending them inside, he kept defendant outside to check his I.D. He told defendant to stand by the police car while his partner verified the I.D. Defendant had told the officers that he had come to town that day on the bus. While they were waiting for the I.D. check, however, another man approached Officer Paxiao and told him that defendant had arrived there in a particular car, which the man pointed out, and that defendant had stolen that car. At that point, as Officer Paxiao turned to look at defendant, he saw him throw something under the police unit. The officers retrieved a set of car keys which were later discovered to fit a stolen vehicle.

Defendant contends that the keys must be suppressed because they were illegally seized. Defendant abandoned the keys when he threw them under the police unit, and property “abandoned without any prior unlawful intrusion into the citizen’s right of freedom from governmental interference ... may be lawfully seized.” State v. Chopin, 372 So.2d 1222, 1224 (La.1979). The question whether the keys must be suppressed then hinges on whether the police had made an unlawful intrusion into defendant’s right of freedom from governmental interference before he threw the keys under the police unit.

At the time he abandoned the keys, he was not under arrest. He was, however, awaiting the police verification of his identification. If the police I.D. check was legal, then there was no prior unlawful intrusion into defendant’s right to be left alone, and the keys are admissible as evidence. On the other hand, if the I.D. check was not legal, there was a prior unlawful intrusion into defendant’s right to be left alone, and the keys were illegally seized, and hence inadmissible.

The Fourth Amendment protects citizens against unreasonable searches and seizures, but not every encounter between a citizen and a policeman involves a “seizure.” Terry v. Ohio, 392 U.S. 1, 19, n. 16, 88 S.Ct. 1868, 1879, n. 16, 20 L.Ed.2d 889 (1968). “[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Id. at 16, 88 S.Ct. at 1877. “As long as a reasonable person would feel free to disregard the encounter and walk away, there has been no ‘seizure.’ ” State v. Ossey, 446 So.2d 280, 285 (La.1984 (quoting Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)); State v. Bel-ton, 441 So.2d 1195, 1199 (La.1983), cert. denied, — U.S. -, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Furthermore, if a citizen after being approached by law enforcement officers consents to stop and answer questions, there is no Fourth Amendment violation. “If there is no detention — no seizure within the meaning of the Fourth Amendment — then no constitutional rights have been infringed.” Florida v. Royer, 103 S.Ct. at 1324.

Detective Paxiao testified that he requested defendant’s I.D. Even if we assume that defendant voluntarily gave his I.D. to the police officer, and therefore that the initial stage of the encounter was consented to by defendant, when Officer Pax-aio told defendant to stand by the police car while his partner verified defendant’s I.D., defendant no longer had any choice in the matter. Although there is no evidence that defendant resisted, a reasonable person, upon being told to stand by a police car while his identification is being verified would not feel free to disregard the encounter and walk away. We therefore conclude that at the time defendant abandoned the keys, he was seized within the meaning of the Fourth Amendment and, therefore, that the objective standards for Fourth Amendment protection apply.

“A law enforcement officer may stop a person in a public place whom he reasonably believes is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.” LSA-C.Cr.P. art. 215.1 A. The right of law enforcement officers to make investigatory stops of people reasonably suspected of criminal conduct is recognized as well by state and federal jurisprudence. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Ossey, 446 So.2d 280, 285-86 (La.1984); State v. Belton, 441 So.2d 1195, 1198 (La.1983). Rea sonable cause for an investigatory stop is something less than probable cause, but the officer must have articulable knowledge of particular facts, which in conjunction with reasonable inferences drawn therefrom is sufficient to provide reasonable grounds to suspect the party involved of past, present or imminent criminal activity.” State v. Bickham, 404 So.2d 929, 931 (La.1981) (citing State v. Wilson, 366 So.2d 1328, 1331 (La.1978)). The officer must have sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be left alone.

In State v. Bickham, the court concluded that there was sufficient cause for an investigatory stop because the officer knowing that an armed robbery had been committed by a bearded black man, saw a bearded black man driving away from the scene of the crime at about 2:00 a.m. when there were few vehicles on the road. In contrast, however, are the cases of State v. Chopin, 372 So.2d 1222 (La.1979), and State v. Scott, 412 So.2d 988 (La.1982), in which the court held there was not reasonable cause for an investigatory stop.

In Chopin a man walking in a well-lighted, well-traveled area and carrying a brown paper bag, became nervous when he saw the policemen and ran when they stopped in front of him. The court pointed out that the policemen had no information connecting the defendant to criminal activity, that he was not committing a crime at the time, and that the police had no reason to suspect he was about to commit a crime.

In Scott a policeman stopped a black New Orleans Sanitation Department employee and asked to see his I.D. at about 5:00 p.m. near Iberville and Royal Streets in the French Quarter after observing him walking back and forth on the sidewalk for ten to fifteen minutes. The policeman testified that he suspected defendant had committed a crime or was planning one because he walked in a suspicious manner, seemed nervous, talked very fast, and volunteered an explanation for his presence without being asked. The court noted, however, that the Scott case did not fit the mold of the typical cases where reasonable suspicion to stop had been found, and emphasized that walking up and down the sidewalk for ten to fifteen minutes, seeming nervous, talking fast and volunteering an explanation for his presence were not reasons to suspect he may have been a criminal.

In the instant case, Officer Paxaio did not even claim that he stopped defendant because he believed defendant had committed, was committing, or was about to commit a crime. He asked for defendant’s I.D. because defendant and his companions were “hanging around vehicles.” Yet he admitted that it was not unusual to see groups of black men in that largely black residential area. Officer Paxaio said that when the officers approached the group, “the four of them [were] hanging around the vehicle, hanging all over it, ..., standing by the window. We could only see the right side.... We just stopped to see what they were doing hanging out there and either send them inside the bar or leave.” Record at 28.

Defendant was stopped because he was standing around a pick-up truck in a parking lot of a cafe which was open for business. He was not suspected of any criminal activity. The officers had no knowledge of any prior crimes committed by defendant. There was no indication of any criminal act at the time by defendant. Accordingly, the state failed to establish reasonable grounds for an investigatory stop, and the evidence seized pursuant thereto must be suppressed. The trial court is hereby ordered to grant the motion to suppress.

REVERSED.

      . Apparently defendant’s I.D. check took longer than that of his companions because he was from out of town.

      . There is no majority opinion in Royer. Nonetheless, Justice Blackmun, dissenting, expressly endorsed the plurality’s Fourth Amendment seizure standard, see 103 S.Ct. at 1332, thus giving it majority approval.

      . In Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), the Court held unconstitutional a Texas statute which made it a crime to refuse to give one’s name and address to an officer who had lawfully stopped him. Uniformed officers stopped a man walking in an alley and asked him to identify himself. When he refused and angrily said they had no right to stop him, they frisked him and arrested him. Although it was not necessary for the Court to pinpoint the exact time of seizure, since the defendant refused to show his I.D. throughout the encounter, the Court said that "when the officers detained appellant for the purpose of requiring him to identify himself, they performed a seizure of his person subject to the requirements of the Fourth Amendment.” Id. at 52, 99 S.Ct. at 2641. In United States v. Mendenhall, 446 U.S. 544, 556, 100 S.Ct. 1870, 1878, 64 L.Ed.2d 497 (1980), however, two members of the Court said of Brown that there was no seizure until the frisk.


author: COLE, Judge.

text:
    Michael WALTON v. STONE AND WEBSTER ENGINEERING CORP., et al.
    No. CM 84 0777.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Luke A. LaVergne, Baton Rouge, for plaintiff.
    Stephen E. Broyles, Baton Rouge, for defendant.
    Before COVINGTON, PONDER and COLE, JJ.
   COLE, Judge.

The issue in this motion to dismiss an unlodged appeal is whether or not the appellant has acquiesced in the judgment so as to preclude an appeal.

Plaintiff Michael Walton filed suit against Stone and Webster Engineering Corporation and Employers National Insurance Company seeking worker’s compensation benefits. On March 30, 1984 judgment was rendered in plaintiff’s favor awarding compensation benefits of $204 a week for eight weeks, plus $2,066.06 in medical benefits. Certain adjustments were made for sums owed to the intervenor-insurer, State Employees Group Benefits Program. The net amount awarded to plaintiff was $2,828.09, plus costs. On April 23, 1984 plaintiff executed an authentic “Act of Satisfaction and Cancellation of Judgment” wherein he stated he had received $2,828.09 in complete satisfaction of the judgment. In that document plaintiff ordered the Clerk of Court for East Baton Rouge parish to refrain from recording the judgment, or if the judgment had already been recorded, to cancel it. On May 18, 1984 plaintiff filed a motion for a devolutive appeal which was granted by the trial court on May 22, 1984. Defendants then filed this motion to dismiss, alleging plaintiff had acquiesced in the judgment and was therefore precluded from appealing, citing La.Code Civ.P. art. 2085.

Appeals are favored in law and forfeiture of a party’s right to an appeal through acquiescence is never presumed. The intent to acquiesce must be shown by direct or circumstantial evidence. See Succession of Marcel, 387 So.2d 1363 (La.App. 1st Cir.1980). The various circuits have reached different conclusions as to exactly what is considered to be an acquiescence. After reviewing the various cases we conclude the appellant in the present case did in fact acquiesce in the judgment and is precluded from appealing.

In Ragland v. Viator, 426 So.2d 231 (La.App. 1st Cir.1983), defendant appealed and then entered into a compromise with plaintiff and a co-defendant which authorized cancellation of the judgments in favor of plaintiff. Defendant failed to reserve the right to appeal vis a vis plaintiff and was found to have acquiesced in the judgment.

In Associates Commercial v. Bayou Management, 415 So.2d 557 (La.App. 1st Cir.1982), plaintiff accepted a check from defendant in the amount of the judgment and then filed an appeal. The court refus.ed to find acquiescence and noted, “Only when appellant has accepted the sum tendered in full satisfaction of the judgment or full settlement of the dispute is there an acquiescence in the judgment.” (p. 559). In the present case the “Act of Satisfaction and Cancellation of Judgment” states clearly the judgment has been “fully paid and completely satisfied.”

In Strickland v. Tesoro Drilling Co., 419 So.2d 1281 (La.App. 1st Cir.1982), the appellant wrote a letter to the clerk of court stating the judgment had been paid and authorized cancellation. However, the appellant there clearly stated in the letter he was reserving his right to appeal. No acquiescence was found.

The case closest to the facts of the present one is Theriot v. Castle, 343 So.2d 399 (La.App. 3d Cir.1977). There the plaintiff accepted payment of the judgment and executed an act entitled “Satisfaction of Judgment.” The act acknowledged receipt of payment and ordered the clerk to cancel the judgment. The plaintiff then appealed. The court examined the prior jurisprudence, which required clear proof of the intent to acquiesce. The court noted in cases where the court refused to find acquiescence, none of the appellants had executed a “Satisfaction of Judgment” act. We agree this is a valid distinction. (Also see Jack v. Lambert’s in Metairie, Inc., 348 So.2d 102 (La.App. 4th Cir.1977) for another decision holding that one who signed an act of satisfaction and authorized che clerk to issue a “certificate of satisfaction” had acquiesced in the judgment.)

For the foregoing reasons, we hold the appellant in this case, who accepted payment for the judgment, signed an act of satisfaction, ordered the clerk to cancel the judgment, failed to reserve his right to appeal, and thereafter took an appeal, has voluntarily acquiesced in the judgment so as to preclude his appeal under La.Code Civ.P. art. 2085.

APPEAL DISMISSED.

      . Code of Civ.P. art. 2085:
      "An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment."

      . The exception to this rule is found in Strickland, supra, wherein the appellant had executed an act of satisfaction but explicitly reserved his right to appeal.


author: LOTTINGER, Judge.

text:
    OCEANEERING INTERNATIONAL, INC. v. BLACK TOWING, INC., et al.
    No. CA 84 0885.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Kenneth W. Ford, Lafayette, for plaintiff-appellee.
    Winston Edward Rice, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for Black Towing, Inc., defendant-appellee.
    Michael J. Maginnis, McGlinchey, Stafford & Mintz & Cellini, New Orleans, for Cheramie Towing Corp., Northeastern Fire Ins. Co. of Penn, and Arkwright-Boston Mfrs. Mut. Ins. Co., defendant-appellant.
    Before COVINGTON, C.J., and LOT-TINGER and CARTER, JJ.
   LOTTINGER, Judge.

This matter is before the Court on Black Towing, Inc.’s (Black) motion to dismiss the appeals of plaintiff Oceaneering International, Inc. (Oceaneering) and defendants Cheramie Towing Corp. (Cheramie) and Northeastern Fire Ins. Co. of Pennsylvania (Northeastern) as the appeals relate to movant.

Plaintiff filed suit against Black, Chera-mie, and Cheramie’s insurers for expenses incurred by Oceaneering in repairing pipeline damage caused by a tug operated by Cheramie and brokered by Black to Ocea-neering. Black subsequently filed a third party demand against the tug’s owner, Cheramie, and Northeastern for indemnification.

Trial on the merits concluded on April 12, 1983, and the matter was taken under advisement. The trial court’s written reasons were issued July 6, 1983. Judgment was in favor of plaintiff Oceaneering and against defendants Cheramie and Northeastern. The trial judge found no liability on Black’s part and dismissed the main demand against Black and Black’s third party demand. The final judgment was signed on July 14, 1984. The record does not reflect that notice of judgment was sent to any parties as required by La.Code Civ.P. art. 1913.

On July 28, 1983, Cheramie and Northeastern filed a motion to amend the judgment or in the alternative a motion for new trial on the issue of damages. Subsequently, Northeastern filed a motion to annul the judgment against it. On February 10, 1984, the trial court denied these motions. This ruling was later vacated and rescheduled. Subsequently, on March 12, 1984, the trial court dismissed all the motions. On April 18,1984, Cheramie and Northeastern filed a motion for devolutive appeal; the trial court granted this motion. The record does not indicate an appeal on behalf of Oceaneering. On May 31, 1984, the trial judge denied Cheramie’s motion for leave to designate the trial record for appeal. He noted in the order that he had that day granted an order for devolutive appeal to Oceaneering. Black contends that Oceaneering has been granted a devol-utive appeal. The record does not, however, indicate a motion for appeal by Ocea-neering.

I

Black contends the appeals were not perfected timely. It argues that Oceaneering did not file a motion for new trial and its petition for devolutive appeal was not filed until May, 1984, nine months after the judgment was rendered. It also contends that the defendants’ motion for new trial was untimely, and thus caused the motion for devolutive appeal to be untimely. Assuming the new trial motion was timely Black argues it was limited to the issue of damages thus making the appeal untimely as respects Black.

The record does not indicate a notice of judgment was sent to the parties. When a case is taken under advisement, the delay for applying for a new trial, and thus the appeal delay, does not begin to run until the day after notice of judgment is mailed. See La.Code Civ.P. arts. 1913, 1974, 2087; Penalber v. Blount, 405 So.2d 1376 (La.App. 1st Cir.1981); Ouachita Equipment Rental, Inc. v. Dyer, 386 So.2d 193 (La.App. 3rd Cir.1980). Since notice of judgment was required herein and never sent, appeal delays did not begin to run. Therefore, the appeals were perfected timely-

For the above reasons, the motion to dismiss is denied at movant’s costs.

MOTION DENIED.


author: CRAIN, Judge.

text:
    Sylvia Gayle BOYLE v. TANGIPAHOA PARISH POLICE JURY, et al.
    No. 84 CM 0948.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Bruce Bennett, Hammond, for plaintiff.
    Stacey Moak, Baton Rouge, for defendant-State D.O.T.D.
    Gail Sheffield, Asst. Dist. Atty., Amite, for defendant-Tangipahoa Parish Police Jury.
    Before SAVOIE, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This Court issued an order to show cause why this appeal should not be dismissed pursuant to a motion to dismiss filed by appellee on the ground that the appeal was not timely perfected.

At the time the motion was filed, the appeal record had not been lodged with this court. The matter was given docket number CM 84/0948. Subsequently, the record was lodged as number CA 84/0986.

The record herein reveals the following pertinent dates and facts:

1. January 27, 1983 — trial on the merits and case taken under advisement;
2. September 16, 1983 — judgment signed;
3. October 7, 1983 — notice of judgment mailed;
4. October 14, 1983 — motion for new trial filed by appellant;
5. December 16, 1983 — hearing on appellant’s motion for new trial;
6. December 20, 1983 — request for notice of ruling (on motion for new trial) filed by appellant;
7. January 23, 1984 — denial of motion for new trial;
8. January 25, 1984 — notice of denial of motion for new trial mailed;
9. May 2 ?, 1984 (not clear, but certainly not earlier) — motion for suspensive appeal filed by appellant;
10. May 21, 1984 — order of suspensive appeal signed.

It is quite clear that the appeal was not taken within the delay prescribed by La.C.C.P. art. 2123 for suspensive appeals, nor even within the delay prescribed by La.C.C.P. art. 2087 for devolutive appeals. Appellant, however, argues that the appeal should be considered as timely because either 1) the clerk of court did not properly certify the mailing of the notice of the denial of the motion for new trial, or 2) appellant’s attorney never actually received the notice.

Notice of the denial of the motion for new trial was necessary under La.C. C.P. art. 1914 because the matter was not ruled upon at the hearing and therefore must have been taken under advisement. (The record does not contain a minute entry on the hearing date. However, the written denial of new trial reflects that the matter was heard and decided on different dates.) Hence it is necessary to address the contentions of appellant relative to the deficiencies of the notice.

CLERK’S CERTIFICATE

Appellant’s argument is not clear, but it seems to raise the issue of the sufficiency of the clerk’s certificate of notice of denial of the motion for new trial.

The notice herein is complete. It lists appellant’s attorney as a recipient. It is dated January 25, 1984, and signed by a Deputy Clerk of Court. It states that appellant’s motion for new trial was denied on January 23, 1984, and refers to a copy of the ruling attached thereto.

The matter herein is governed by La.C. C.P. art. 1914, requiring notice in only very genera] terms. La.C.C.P. art. 1913, regarding notice of a final judgment, is more particular, providing that the clerk shall file a certificate in the record which sets forth specific information. Even with regard to the formal certificate required by La.C.C.P. art. 1913, this court has found that a copy of a letter addressed to one counsel, clearly indicating duplicate copies to all counsel of record, satisfies the requirement of certification. Great American Insurance Companies v. East, 264 So.2d 761 (La.App. 1st Cir.1972).

The certificate herein meets the notice requirement of La.C.C.P. art. 1914, and, in fact, meets the certification requirements of La.C.C.P. art. 1913.

RECEIPT OF NOTICE

Appeal delays begin upon the mailing of the notice of the denial of a new trial when such notice is required by La.C. C.P. art. 1914. La.C.C.P. arts. 2087(3) and 2123(3). However, while a clerk’s certificate is presumed to be correct, it may be refuted or amended or corrected, at a proper proceeding, when it is shown to be in error. See Haywood v. Salter, 421 So.2d 1190 (La.App. 2d Cir.1982). See also Clark v. Rosemond, 371 So.2d 1217 (La.App. 4th Cir.1979).

Herein, appellant alleges no support for its contention that it never received the notice. However, in the interest of justice we will remand this case for a hearing and a decision by the trial court on the issue of whether the Clerk of Court mailed notice of judgment in compliance with La.C.C.P. art. 1913.

REMANDED.

      . There were other parties and other appeals. However, they are not pertinent to the issue herein.


text:
    Alvin M. BARGAS v. Johnice Daniel LAND.
    No. CA 84 0963.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Charles Raymond, Baton Rouge, for plaintiff-appellee Alvin M. Bargas.
    Johnice Daniel Land, in pro. per.
    Before COLE, CARTER and LANIER, JJ.
   COLE, Judge.

The issue presented in this motion to dismiss is the timeliness of appellant’s appeal.

The parties were divorced in 1980 and custody of their minor child was awarded to the wife (appellant). Pursuant to a subsequent stipulation, custody was changed to the husband by judgment signed in 1981. In 1983 the wife filed a rule for change of custody. She also sought injunctive relief against the husband and to have him held in contempt for violation of visitation orders. In response the husband filed a counter rule, requesting the court set and define reasonable visitation rights for the wife and award him child support and attorney’s fees.

These matters were heard on January 30, 1984. At the close of the wife’s case, the husband’s motion for a directed verdict was granted. The court orally rendered judgment denying the wife's request for change of custody and all other relief sought by her. The court awarded attorney’s fees to the husband, but denied his request for child support. A written judgment was signed accordingly on February 17, 1984. Neither party requested notice of judgment or filed a motion for a new trial.

On May 2, 1984, the wife filed a motion-for devolutive appeal. An order of appeal was signed on that same day, made returnable to this Court on July 2, 1984. The return date was subsequently extended until August 2, 1984. The record was lodged with this Court on August 1, 1984.

On August 28, 1984, the husband filed a motion to dismiss this appeal as untimely. The wife responded with a motion (which is treated herein as an opposition) to dismiss the husband’s motion, alleging: 1) it was not timely under Code of Civ.P. art. 2161 and under the Uniform Rules — Courts of Appeal, Rule 2-8.1; and, 2) he did not serve her with the attachments to his motion as required by Rule 2-8.2.

Notice of judgment was not required since this case was not taken under advisement and no request for notice was made. Code of Civ.P. art. 1913. Accordingly, appeal delays began upon the expiration of the delay for applying for a new trial. Code of Civ.P. arts. 2087(1) and 3943. This seven day delay ended on February 29, 1984 in the present ease.

The wife had thirty days from this date to appeal the portion of the judgment denying a change in custody. Code of Civ.P. art. 3943. Malone v. Malone, 282 So.2d 119 (La.1973); Easley v. Williams, 450 So.2d 1078 (La.App. 1st Cir.1984). Appeal delays obviously lapsed with regard thereto well before the motion for appeal was filed on May 2, 1984. The applicable appeal delay for the remaining portions of the judgment was sixty days. Code of Civ.P. art. 2087. The last day of this period was April 30, 1984. Therefore, the motion filed on May 2, 1984 was clearly untimely as to the entire judgment.

The wife’s contentions regarding the timeliness of the husband’s motion to dismiss are completely without merit. An untimely appeal raises jurisdictional defects, and an appeal may be dismissed at any time for lack of jurisdiction. Code of Civ.P. art. 2162; Easley v. Williams, supra. Additionally, the wife’s complaint relative to the husband’s failure to serve her with the attachments to his motion presents no prejudicial error. The attachments were merely complimentary copies of documents in the record.

For the above reasons, we grant the motion to dismiss this appeal.

APPEAL DISMISSED.

      . In brief the wife raises two other arguments which warrant no discussion other than to note they are totally frivolous and without merit. These arguments are: 1) that appeal delays may be longer than sixty days because Code of Civ.P. art. 2087 says an appeal may be filed within sixty days; and, 2) that she was informed by personnel in the offices of the clerk of court and the judge to exclude from appeal delays those days on which the judge was out of his office.

      . February 20, 1984 was a legal holiday.


author: CUTRER, Judge. DOMENGEAUX, Judge,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Marvin RAINWATER, Defendant-Appellant.
    No. CR83-835.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Herman Mouton, Lake Charles, for defendant-appellant.
    Marvin Rainwater, in pro. per.
    Leonard Knapp, Jr., Dist. Atty., Robert R. Bryant, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

The defendant, Marvin Rainwater, was charged by bill of information with one count of simple burglary (LSA-R.S. 14:62) and with three counts of simple burglary of an inhabited dwelling (LSA-R.S. 14:62.2). He initially pled not guilty to the four charges and requested a jury trial. During the voir dire of the potential jurors, the defendant changed his plea to guilty to all four counts. These pleas were accepted by the trial judge, after he informed the defendant of the rights he was waiving by pleading guilty and after he determined that the defendant’s waiver and pleas were given voluntarily and knowingly. After the appropriate delays, the defendant was sentenced to eight years at hard labor on each of the four counts, with each sentence to run concurrently. From these sentences the defendant has appealed alleging only one assignment of error: the trial court imposed an excessive sentence.

Louisiana jurisprudence, in interpreting Article I, § 20 of the Louisiana Constitution of 1974, has held that a sentence imposed within legislative guidelines may, nevertheless, be unconstitutionally excessive if it is nothing more than the purposeless and needless imposition of pain and suffering or if the penalty is so disproportionate to the crime as to shock the sense of justice.

In the instant case, the twenty-three year old defendant pled guilty to four crimes committed in the Lake Charles and DeQuin-cy areas. Those crimes (simple burglary and three counts of simple burglary of an inhabited dwelling) were committed in 1982, and the conviction on each one subjected the defendant to a maximum prison term of twelve years. LSA-R.S. 14:62, 14:62.2. (Additionally, the defendant could have been ordered to pay a fine of $2,000.00 for the conviction of simple burglary.)

At the time of the four offenses, the defendant was on parole for convictions on other burglaries he had committed in Texas and for which he had served three and one-half years imprisonment. Upon receiving the defendant’s pleas of guilty, the State nolle prossed a charge of illegal possession of a firearm by a convicted felon. LSA-R.S. 14:95.1.

The defendant was given no sentence promises upon pleading guilty. In fact, he rejected the State’s offer to recommend a sentence of six years and chose to plead “straight-up.” Upon appeal the defendant argues that he was sentenced excessively, inasmuch as he had cooperated voluntarily with the State’s officers by assisting them in solving other burglaries which involved the criminal implication of the defendant’s sister and her husband.

The record reflects that the trial court followed the sentencing guidelines of LSA-C.Cr.P. 894.1 and the prohibition of sentence suspension and probation set forth in art. 893. Considering the defendant’s prior criminal acts and his continued behavior, the trial judge opined that a maximum sentence would be appropriate but for the defendant’s cooperation in solving the other crimes. Further, the four sentences were ordered to be served concurrently. Clearly, no abuse of discretion occurred in the imposition of defendant’s sentences.

For the aforementioned reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED.

DOMENGEAUX, J., concurs with reasons.

DOMENGEAUX, Judge,

concurring.

It is well known that I disagree with State v. Sepulvado, 367 So.2d 762 (La.1979) which case mandates review of sentences by appellate courts for excessiveness. Sepulvado is wrong and the Louisiana Supreme Court should overrule it. The plain fact is that our Constitution does not provide for nor mandate review of sentences when those sentences fall within the parameters set by the appropriate criminal statute. See my concurring opinions in State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983), and State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983).

In Vallare I noted that in 19% of the criminal cases appealed to our Circuit, ex-cessiveness of sentence, sometimes coupled with complaints of failure of the trial judge to adequately articulate the sentencing guidelines provided for in La.C.Cr.P. Art. 894.1 was the sole issue put forth for our consideration. That percentage has now increased to 23%.

I respectfully suggest that our steadily increasing backlog can be attributed, in significant measure to those type appeals.

Courts should not legislate. I respectfully again suggest that Sepulvado contravenes that premise. Our High Court should reevaluate Sepulvado, admit that it represents an erroneous interpretation of our Constitution, and lay it to rest.


author: DOUCET, Judge. DOMENGEAUX, J.,

text:
    STATE of Louisiana, State and Appellee, v. Harry Lee SMITH, Defendant-Appellant.
    No. CR83-561.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Charles E. Soileau, Rayne, for defendant-appellant.
    Jack D. Miller, Asst. Dist. Atty., Crowley, for State and appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

The defendant, Harry Lee Smith, was charged in the 15th Judicial District Court for the Parish of Acadia with seven counts of felony theft in violation of La.R.S. 14:67. During the period from November 30, 1981 through December 29, 1981, defendant and two other individuals stole six motorcycles and some hand tools from various homes around Acadia Parish.

On November 23, 1983, defendant changed his previous plea of not guilty to guilty on all seven counts of theft. The Honorable John Rixie Mouton Boykenized (See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 274 (1969) the defendant and pursuant to defense counsel’s request, ordered a pre-sentence investigation.

A sentencing hearing was held on April 11, 1983. Defendant was sentenced to three years at hard labor in each of five counts, to run concurrently, and to three years at hard labor in each of two counts, to run consecutively, an effective sentence of nine years.

Defendant now appeals this sentence on four assignments of error. As only three of these assignments of error were argued in appellant’s brief only those three will be considered. The other assignment of error is considered abandoned. State v. Joseph, 425 So.2d 1261 (La.1983).

The appellant argues that the trial court erred in failing to sentence the defendant in accord with the sentencing guidelines of La.C.Cr.P. art. 894.1.

La.C.Cr.P. 894.1 sets forth three factors which justify a sentence imposing imprisonment and eleven other factors which tend to indicate suspension of sentence or probation as appropriate. Part C of that article provides that: “The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” State v. Cox, 369 So.2d 118 (La.1979).

Judge Mouton sentenced Smith as follows:

“THE COURT: In the case of Mr. Smith, the Court is also the beneficiary of a pre-sentence investigation report. The Court will sentence you to three years at hard labor in custody of the Department of Corrections on each count, on six counts.
MR. FOREMAN: Your Honor, I believe there’s seven counts.
THE COURT: The first five sentences to run concurrently; the last two sentences to run consecutively. The Court is prevented by law to grant this man a suspended sentence inasmuch as on December 30, 1981 he was convicted of felony theft and was sentenced to three years at hard labor suspended, with three years active supervised probation. You will probably have to get your probation revoked on that one and go serve another three. You seem to have a propensity for the property of others. The Court feels that you need the sanctions of being confined and maybe, maybe you might see your way. A lessor sentence would deprecate or greatly reduce the seriousness of these crimes. You apparently are not a good candidate for rehabilitation. Thank you.”

The court in this statement does consider the factors listed in La.C.Cr.P. art. 894.-KA):

“(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution.
(3)A lesser sentence will deprecate from the seriousness of the defendant’s crime.”

La.C.Cr.P. art. 894.1(B) provides that the eleven mitigating factors “while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence of probation.” It is true that the record should reflect that mitigating as well as aggravating circumstances have been considered. State v. Smith, 426 So.2d 738 (La.App. 3rd Cir.1983); State v. Ray, 423 So.2d 116 (La.1982). See also State v. Bing, 410 So.2d 227 (La.1982).

The trial judge did not comply with these guidelines, however, “a lack of compliance does not necessarily require that the sentences be set aside if the record otherwise clearly illumines the trial court’s sentencing choice and demonstrates that the sentence is not arbitrary or excessive. State v. Jett, 419 So.2d 844 (La.1982). The trial judge stated in the sentencing proceeding that he had the pre-sentence investigation before him. An examination of the facts of this case and the pre-sentence investigation reveal a more than adequate factual basis for the sentence imposed.

Defendant contends that the trial court erred in sentencing defendant to an excessive length of imprisonment considering the information provided in the pre-sen-tence investigation.

A trial judge is not bound by any sentencing recommendation made in the pre-sentence investigation. The trial judge’s statements during the sentencing proceeding along with an examination of the record show an adequate factual basis for the sentence imposed. See: State v. Bing, supra.

Where, as here, the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed appear in the record, either stated by the court at sentencing or obvious from examination of the record, a sentence should not be set aside as excessive unless there has been a clear abuse of discretion by the trial judge in the imposition of a sentence within the statutory limits. State v. Jones, 381 So.2d 416 (La.1980).

The standard for determining whether a trial judge has abused his discretion is whether the sentence imposed is grossly disproportionate to the severity of the crime. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980). “To determine whether the penalty is grossly disproportionate to the crime we must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice.” State v. Brown, supra; State v. Bonanno, supra; State v. Beavers, 382 So.2d 943 (La.1980).

The maximum penalty for each of the six counts of theft is imprisonment with or without hard labor for not more than ten years. Under the circumstances we cannot find that a total sentence of nine years for six counts of theft is so grossly disproportionate to the crimes committed as to shock the sense of justice. We find no abuse of discretion by the trial judge.

The defendant asserts that the trial judge misread the pre-sentence investigation. The defendant does seem to be correct in his assertions that the trial judge misread the pre-sentence investigation.

The trial judge, in the belief that a conviction for a previous offense exists, states that he is prevented by law from giving the defendant a suspended sentence.

However it is not clear from the transcript of sentencing that the trial judge drew his reasons for sentencing solely from this mistake.

The judge had the entire pre-sen-tence investigation before him. The sentence imposed was well within his discretion as the trier of fact. Therefore, we find that any mistake as to previous convictions is harmless and does not affect the validity of the sentencing proceeding.

For the above and foregoing reasons the conviction and sentence imposed by the trial judge is affirmed.

AFFIRMED.

DOMENGEAUX, J.,

concurs. See my concurring opinions in State v. Goodman, 427 So.2d 529; State v. Vallare, 430 So.2d 1336; and State v. Rainwater, handed down this date, 457 So.2d 1280 (La.App.1984).


author: KNOLL, Judge. STOKER, Judge,

text:
    Hoover J. MOREAU, Plaintiff-Appellant, v. Vera Ann Passiglia MOREAU, Defendant-Appellee.
    No. 83-908.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Provosty, Sadler & deLaunay, H. Brenner Sadler, Alexandria, for plaintiff-appellant.
    Stafford, Stewart & Potter, Russell L. Potter, Alexandria, for defendant-appellee.
    Before FORET, STOKER and KNOLL, JJ.
   KNOLL, Judge.

Hoover J. Moreau appeals a judgment awarding his former wife, Vera Ann Mor-eau, 26% of his military retirement benefits. The central issue is whether the husband’s military retirement benefits constitute community property. Germane to this issue is whether the trial court erred in: (1) finding Hoover Moreau was a resident and domiciliary of Louisiana, and (2) finding the parties ever established a matrimonial domicile in Louisiana while Hoover Moreau was in the service. Hoover Moreau claims the trial court further erred in not giving full force and effect to a community property settlement the parties had previously executed. Vera Moreau answered the appeal, claiming that she is entitled to 50% of the disposable military retirement benefits. We amend and affirm, finding the military retirement benefits constitute community property, and increase Vera Moreau’s portion to 35.63%.

FACTS

Hoover Moreau was born in Opelousas, Louisiana on January 13,1929. He enteréd the United States Air Force in November 1946 while he was living in Louisiana. He made a career of the service and remained in the Air Force until his retirement on August 1, 1968. He married Vera in St. Louis, Missouri on February 14,1953, while stationed in Kansas City, Missouri. They remained in Kansas City until 1956. From then until his retirement in 1968, he was transferred to various states, Europe and the Philippines.

Shortly after his retirement, he moved his family to Alexandria, Louisiana, where he bought a home. On September 1, 1968, he began receiving his monthly retirement checks.

Hoover and Vera began having marital problems in 1981 which ultimately resulted in a legal separation in Rapides Parish. On March 9, 1982, they entered into a community property settlement; Hoover’s military retirement was not mentioned in the settlement.

Hoover subsequently filed for a divorce based upon their living separate and apart for more than one year. Vera filed a general denial answer asserting that the military retirement benefits constituted community property, and reconvened seeking one-half interest in all future military retirement benefits Hoover might receive. The trial court granted the divorce on June 21, 1983. That judgment is final and has not been appealed. Only that portion of the judgment concerning the military retirement benefits is on appeal.

MILITARY RETIREMENT BENEFITS

Hoover contends that since he lived outside of Louisiana during his years of service, his military retirement benefits do not fall under Louisiana community property laws. He claims that the case subjudice is exclusively determined by the following Civil Code Articles:

2399 — “Every marriage contracted in this State, superinduces of right partnership or community of acquets or gains, if there be no stipulation to the contrary. ”
2400 — “All property acquired in this State by non-resident married persons, whether the title thereto be in the name of either the husband or wife, or in their joint names, shall be subject to the same provisions of law which regulate the community of acquets and gains between citizens of this State.” 2j01 — “A marriage, contracted out, of this State, between persons who after-wards come here to live, is also subjected to community of acquets, with respect to such property as is acquired after their arrival. ”

Hoover argues that since Articles 2399, 2400, and 2401 do not apply to his set of circumstances, his military retirement benefits do not fall under Louisiana community property laws. We disagree.

Louisiana jurisprudence has established that vested retirement benefits, attributable to employment during marriage, constitute a community asset and this rule includes military retirement. Swope v. Mitchell, 324 So.2d 461 (La.App. 3rd Cir.1975). In accord see Rohring v. Rohring, 441 So.2d 485 (La.App. 2nd Cir.1983). Although McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), held federal military retirement benefits the separate property of the retired member, Pub.L. 97-252, Title X, § 1002(a), 10 U.S. C.A. § 1408(c)(1), effective February 1, 1983, legislatively overruled McCarty; this act provided that a court may treat military retirement pay either as property solely of the retired member, or as property of the member and his spouse in accordance with applicable state law. Jett v. Jett, 449 So.2d 557 (La.App. 1st Cir.1984); Rohring, supra.

Louisiana law and jurisprudence presume a community of acquets and gains exists unless it is satisfactorily proved otherwise. LSA-C.C. Art. 2405 provides:

“At the time of the dissolution of the marriage, all effects which both husband and wife reciprocally possess, are presumed common effects or gains, un less it be satisfactorily proved which of such effects they brought in marriage, or which have been given them separately, or which they have respectively inherited.

Hoover’s right to retirement pay was acquired during the marriage and is presumed to be community property in the absence of strong proof to the contrary. Swope, supra. We find that Hoover has failed to overcome this presumption.

Although Hoover lived outside of Louisiana while he acquired retirement benefits, his domicile and residence remained in Louisiana.

LSA-C.C. Art. 46 provides:

“Domicile once acquired shall not be forfeited by absence on business of the State or of the United States,

LSA-R.S. 1:54 provides:

“Residence once acquired shall not be forfeited by absence on business of the state or of the United States

See also Spring v. Spring, 210 La. 576, 27 So.2d 358 (1946). Further, under Louisiana law, LSA-C.C. Art. 39, “A married woman has no other domicile than that of her husband; Therefore, Hoover and Vera were domiciled in and residents of Louisiana while Hoover was in the service.

Hoover maintained continuous contact with Louisiana during the period of his military service. While he was stationed at Keesler Air Force Base in Mississippi, Vera and their children lived in an apartment in Opelousas; Hoover commuted to Opelou-sas almost every weekend during this assignment to be with his family. He registered two vehicles in Louisiana while he was stationed in other states. The Air Force paid his travel expenses to his home town, Opelousas. He spent a substantial portion of his thirty day leave each year in Opelousas. Approximately twenty-two years ago he petitioned a Louisiana court for a change of name. He did not acquire immovable property or register to vote outside of Louisiana.

Upon his retirement, Hoover and his family moved to Alexandria, Louisiana, where both parties are domiciled to the present date. Since the parties had Louisiana domicile and residency, returned to Louisiana after Hoover’s retirement, and were divorced in a Louisiana court, we conclude that they regarded Louisiana as their permanent home and domicile. Therefore, Hoover’s military retirement benefits are clearly an asset of the community of acquets and gains. In accord see Succession of McKenna, 23 La.Ann. 369 (1871).

The trial court concluded that Hoover and Vera became subject to Louisiana community property laws in 1957, when Vera and the children lived in Opelousas, and awarded Vera one-half of the retirement benefits from 1957 to 1968, or 26%. We agree with the learned trial judge that the military retirement benefits constitute community property, but we find that the community regime commenced when Hoover married Vera in 1953. Therefore, under Simmons v. Simmons, 453 So.2d 631 (La.App. 3rd Cir.1984), Vera’s interest should be calculated from the date of marriage as follows:

Portion of pension attributable to creditable service during existence of community_ x '/• x annuity
Pension attributable to total (or lump creditable service sum payment)

Hoover was in the military approximately 21.75 years; during that time he was married to Vera approximately 15.5 years, therefore, Vera is entitled to receive 35.63% as her community property portion of the military retirement benefits.

COMMUNITY PROPERTY SETTLEMENT

Hoover and Vera entered into a community property settlement; however, the document did not mention the military retirement benefits. Hoover contends that Vera waived her right to seek these retirement benefits since the settlement contained the following language:

“As a result of the transfers and agreements made herein, the parties hereby mutually discharge each other from any further accountings of the commu nity which formerly existed between them, the same being fully liquidated as above set forth.

The undisputed trial testimony revealed that counsel for both Hoover and Vera conducted extensive negotiations preceding the finalization of the community property agreement. Hoover’s retirement pay was known to both parties, but both thought the retirement pay was controlled by the McCarty decision, and was, therefore, Hoover’s separate property.

There is no language in the partition agreement which would transfer Vera’s interest in Hoover’s retirement. Accordingly, each spouse continued as owner of one-half the value of the right to share retirement benefits in the proportions established in T.L. James & Co., Inc. v. Montgomery, 332 So.2d 834 (La.1976).

Under LSA-C.C. Art. 1308 all persons who hold property in common may seek a partition. The mere omission of a thing from the partition is not a ground for rescission, but simply for a supplementary partition. LSA-C.C. Art. 1401. Succession of Tucker, 445 So.2d 510 (La.App. 3rd Cir.1984), writ denied, 447 So.2d 1077.

This identical issue was addressed by this court in Moon v. Moon, 345 So.2d 168 (La.App. 3rd Cir.1977), writ denied, 347 So.2d 250. In Moon the parties entered into a community property settlement after their legal separation. Even though the parties were aware of the husband’s military retirement, they omitted the retirement pay from the agreement because they thought it was the husband’s separate property. This court held that notwithstanding the residual disposition clause contained in the settlement, the parties’ omission of the husband’s military retirement constituted mutual oversight, allowed the parties to supplement their community property settlement, and awarded the wife one-half of the community property portion of the husband’s military retirement. We therefore find that Vera was not precluded from filing a supplemental partition.

For the foregoing reasons, the judgment of the trial court is amended to recognize Vera Ann Passiglia Moreau as owner of a 35.63% interest in her divorced husband’s military retirement benefits. In all other respects the judgment is affirmed. All costs of this appeal are assessed equally between Hoover J. Moreau and Vera Ann Passiglia Moreau.

AMENDED AND AFFIRMED.

FORET, J., concurs.

STOKER, J., concurs and assigns written reasons.

STOKER, Judge,

concurring.

I fully concur in the majority opinion and add these comments to answer what I perceive to be the thrust of the argument of the husband in this appeal.

As the majority opinion points out, this Court of Appeal held in Swope v. Mitchell, 324 So.2d 461 (La.App. 3rd Cir.1975) that military retirement benefits attributable to employment in military service during marriage was acquired as a community asset. Based upon a finding that the parties were domiciled in Louisiana during the period in question, the court held that the fact that a portion of the husband’s retirement benefits was earned during residence in non-community states, did not stamp as separate property the retirement benefits earned in those states. This decision was handed down prior to the United States Supreme Court’s decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). In view of the congressional action taken to avoid the consequences of the McCarty decision, Swope v. Mitchell, supra, is valid and applicable here.

The husband postulates: “The property, being an intangible movable item, was acquired at the place the military services were rendered, which was never Louisiana.” (Husband’s Reply Brief, page 3) This statement is made in the context of the argument that classification of Mor- • eau’s retirement rights as community is contrary to the provisions of Louisiana Civil Code Articles 2399, 2400 and 2401 and that Article 2334 cannot be applied because to do so would give it retroactive effect. The appellant husband wishes to use defensively Articles 2399, 2400 and 2401 and the nonapplicability of Article 2334 for any time prior to its enactment in 1980. They cannot be so used.

Military retirement rights are movable property. Any such rights acquired during defendant’s marriage to the plaintiff became community property because the parties were Louisiana domiciliaries. The law of the residence at the time of acquisition does not govern. Succession of Lodato, 250 So.2d 792 (La.App. 4th Cir.1971); Succession of Dunham, 408 So.2d 888 (La.1981) and Jackson v. Jackson, 425 So.2d 379 (La.App. 3rd Cir.1982). Under the circumstances our decision is not contrary to the cited Civil Code articles and we do not apply Article 2334 retroactively. With respect to the latter article, it is not a consideration and we apply the law as it was decided in Swope v. Mitchell, supra, well before the amendment of Article 2334. The other citations given above do not involve application of the present version of Article 2334, but stand on their own merits.


author: GRISBAUM, Judge. GAUDIN, Judge,

text:
    RIVER PARISH SERVICES, INC. v. GOODHOPE REFINERIES, Now GHR Energy Corp. and Bank of LaPIace.
    No. 83-CA-423.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 11, 1984.
    Rehearing Denied Nov. 16, 1984.
    Writ Denied Jan. 14, 1985.

      William D. O’Reagan, III, LaPlaee, for plaintiff-appellee.
    Accardo, Carville, Edrington, LeBlanc & Golden, Richard L. Edrington, George Ann Hayne Graugnard, LaPlaee, for defendant-appellant.
    Before GAUDIN, GRISBAUM and MARCEL, JJ.
   GRISBAUM, Judge.

The defendant, Bank of LaPlaee, suspen-sively appeals from a judgment in favor of River Parish Services, Inc., hereafter RPS, Inc., requiring the bank pay $17,200 owed on open account for services rendered by RPS, Inc. to Good Hope Refineries Energy Corporation, hereafter GHR, together with legal interest from date of judicial demand and with each party to bear its own attorney’s fees. Additionally, RPS, Inc. appeals from the trial court’s dismissal of the claim for payment which it brought to bear against GHR. In answering the appeal, RPS, Inc. requested in addition to the sum of $17,200, damages in the amount of $20,-000, along with interest thereon from date of judicial demand and attorney’s fees. We affirm.

From approximately June 5, 1981 to June 14, 1981, RPS, Inc. provided certain services to GHR for which GHR was invoiced in the amount of $17,200. The parties to this action stipulated a debt for this amount was owed on open account to RPS, Inc. by GHR. On June 9, 1981, a checking account was opened at the Bank of LaPlaee in the name of River Parish Services (without the designation, “Inc.”) with the deposit of a cheek. Earl Harbison, president and purchasing agent for GHR, in the presence of a bank authority, signed his name on the account signature card, which was entitled “River Parish Services.” In the two-month interim, the Bank of LaPlaee permitted someone, and allegedly Earl Harbison, unsupervised access to the signature card during which time the signature of Fred L. Ratliff, Jr., president and manager of RPS, Inc., was placed on the signature card. On August 8, 1981, GHR wrote a check to the order of “River Parish Services,” including the proper address of RPS, Inc. which was different from the address of River Parish Services as stated on the signature card. The check was in the amount of $17,200. On August 11, 1981, Earl Harbison allegedly gained possession of GHR’s check payable to River Parish Services and forged Fred Ratliff, Jr.’s name as an indorsement on the back of the check. He then negotiated the check to the Bank of LaPlaee which credited the instant account in the amount of $17,200. The Bank of LaPlaee collected payment on this check from GHR’s drawee bank which allowed the withdrawal of the money.

On March 17, 1982 suit on open account was instituted by RPS, Inc. against GHR Energy Corporation alleging nonpayment of the $17,200 invoice for services rendered. GHR answered denying the allegations of the plaintiff and amended its answer averring the debt sued upon had been extinguished by payment on August 8, 1981. Subsequently, the plaintiff’s petition was supplemented and amended to name the Bank of LaPlaee as a party defendant. The plaintiff alleged the Bank of LaPlaee was liable for negligently allowing the removal of the signature card from the bank premises; negligently allowing the forgery of the signature of Fred Ratliff, Jr.; negligently allowing the forgery of the indorsement on GHR’s check No. 053315 dated August 8, 1981; and finally, for failing to obtain the full legal status and tax identification number of the customer, River Parish Services. On August 6, 1982, GHR filed a third-party demand against the Bank of LaPlace alleging negligence on the part of the bank in opening an account in the name of River Parish Services. The defendant Bank of LaPlace answered RPS, Inc.’s amending and supplemental petition as well as GHR’s third-party demand denying all allegations of negligence and further averring its status as a depositary collecting bank acting at all times in good faith and in accordance with reasonable commercial standards. The trial court held in favor of River Parish Services, Inc. against the Bank of LaPlace and dismissed all claims which River Parish Services, Inc. and the Bank of LaPlace asserted against GHR Energy Corporation.

ISSUES

(1) Did the Bank of LaPlace fail to maintain standards of “commercial reasonableness” so as to become liable under Louisiana Revised Statute 10:3-419?

(2) Is the “fictitious payee” rule of Louisiana Revised Statute 10:3-405 applicable so as to relieve the bank of liability?

The plaintiff-appellee, River Parish Services, Inc. invokes Louisiana Revised Statute 10:3-419(1) and (3) as its basis for recovery against the Bank of LaPlace. Section (1) provides when a person pays an instrument on a forged indorsement, he is liable to the true owner; however, section (3)provides the collecting bank which has acted in good faith and in accordance with the reasonable commercial standards applicable to the business of such representative in dealing with an instrument on behalf of one who is not the true owner is not liable to the true owner beyond the amount of any proceeds remaining in his hands. While the plaintiff-appellee admits the Bank of LaPlace acted in good faith, it contends the bank did not act in accordance with reasonable commercial standards and thus is liable for the full amount of $17,200 even though the bank has retained no proceeds.

The vice president of the Bank of La-Place testified to the following internal banking procedures: The bank requires no identification such as a driver’s license to be presented upon opening a new checking account nor upon making a deposit into the account. The bank requires a signature card be signed on the premises but then allows the card to be taken from the bank and signed by whomever the holder of the card subsequently decides should have authority to use the checking account. When a deposit is made into an account, the bank checks the signature of the indorser against the signature on the signature card.

While the evidence demonstrates the bank’s employees did not stray from the bank’s routine procedures with regard to the transactions involved in this case, the bank wholly failed to introduce evidence of the standards of “commercial reasonableness” in the industry. In establishing compliance with reasonable commercial standards in a defense to an action for conversion of an instrument, the bank’s burden of presenting evidence concerning applicable standards of the banking industry and its adherence thereto necessitates more than merely demonstrating that it did not fail to reasonably comply with its own commercial standards. Travelers Insurance Company v. Jefferson National Bank at Kendall, 404 So.2d 1131, 1133 (Fla.App.1981); Barnett Bank of Miami Beach v. Lipp, 364 So.2d 28, 30 (Fla.App.1978). While it is difficult to determine the trial court’s reasons for judgment (the trial court adopted GHR’s memorandum as its reasons for judgment), it is apparent the trial court found the bank was negligent. In light of the bank’s failure to present evidence concerning the applicable standards of the banking industry, it cannot be said the trier of fact erroneously determined the bank to have been negligent. The bank failed entirely in countering the assertions by RPS, Inc. that failure to require identification of “River Parish Services” upon opening a checking account and failure to require personal identification of one who makes a deposit and of one who makes an indorsement of a cheek constitutes negligence. .

The Bank of LaPlace invokes Revised Statute 10:3-405, the fictitious payee or imposter rule, and contends the indorsement by “Fred Ratliff” was effective. Section (l)(c) provides that an indorsement by any person in the name of a named payee is effective if an agent or employee of the drawer has supplied him with the name of the payee intending the latter to have no such interest. There is no evidence in the record of GHR’s office administration procedures, and specifically, there is no evidence that Earl Harbison caused GHR to make out the instrument in the name of River Parish Services. It is possible he simply stole the check after it had been made out. Therefore, the bank has failed to demonstrate this ease fits within the narrow exception of the fictitious payee rule of section 10:3-405, and the indorsement of Fred Ratliff is not deemed effective.

The policy of the fictitious payee rule is to shift the loss of a forged indorsement by an employee of the maker-employer to the employer, who is in a better position to prevent the fraud, rather than to the drawee-bank. Barnett Bank of Miami Beach v. Lipp, 364 So.2d 28, 29. The Barnett court held when a payee sues a collecting bank, there is no policy reason for shifting the risk of loss to the payee since the bank was in a superior position to the payee in preventing fraud against the payee from occurring. See also Sun ’N Sand, Inc. v. United California Bank, 148 Cal.Rptr. 329, 582 P.2d 920, 21 Cal.3d 671 (1978). In the instant case, the record supports a finding the defendant collecting bank was in a better position to apprehend the employee forgery than was the payee or the employer. While the Bank of La-Place attempted at trial to demonstrate GHR had been placed on notice of its employee’s fraud by a similar transaction previously made, the record provides practically no evidentiary support of this allegation. The Bank of LaPlace, on the other hand, dealt face to face with the perpetrator of the fraud and had opportunity to discover irregularities in transactions with him.

Accordingly, the judgment is hereby affirmed, costs of this appeal to be ássessed against the appellant.

AFFIRMED.

GAUDIN, J., dissents.

GAUDIN, Judge,

dissenting.

I respectfully dissent, being of the opinion that the Bank of LaPlace acted in good faith in accordance with reasonable commercial standards.


author: CURRAULT, Judge.

text:
    UNITED TALENT ASSOCIATES, INC., a/k/a Rascals, and Paul Fuller, and Stephen Memory v. PARISH OF JEFFERSON, Through the Honorable Joseph YENNI, and the Zoning Appeals Board for Jefferson Parish, and/or the Safety Department for Jefferson Parish.
    No. 84-CA-82.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 11, 1984.
    Rehearing Denied Nov. 16, 1984.
    Writ Denied Jan. 14, 1985.

      Harry A. Burglass, Metairie, for plaintiffs-appellees.
    David L. Colvin, Asst. Parish Atty., Gret-na, for defendants-appellants.
    Before CURRAULT, GAUDIN and Du-FRESNE, JJ.
   CURRAULT, Judge.

This appeal originates in the Twenty-Fourth Judicial District Court, Division “B”, Parish of Jefferson, wherein the Honorable Frank V. Zaccaria reversed the decision of the Zoning Appeals Board for the Parish of Jefferson holding such decision to be arbitrary, capricious and unconstitutional. The Parish of Jefferson and the Jefferson Zoning Appeals Board have appealed.

In 1975, William Barrattini sought to develop a commercial complex in an area of Jefferson Parish known as “Fat City”. The initial application to build this complex was refused by the Jefferson Regulatory Board based upon a lack of available parking under the then comprehensive zoning ordinances for Jefferson Parish.

According to those zoning ordinances, all general businesses, commercial or personal service establishments catering to retail trade were required to have one parking space for each 250 square feet of gross floor area. Based upon this formula, Bar-rattini’s building required 56 parking spaces but had only 48 available. An appeal was taken in which the necessary variance of eight parking spaces was granted by the Zoning Appeals Board on December 15, 1975. This variance was “to permit the construction of a restaurant and retail stores ... as per plot plan submitted.”

The building was immediately built and all but a portion of it was finished and occupied. This portion constituted a large area located downstairs that has remained to date an unfinished shell. It is noteworthy that on the Floor Plan and Schedules originally submitted, this area was designated for use as a “restaurant and lounge.”

On December 1, 1982, United Talent Associates, Inc. a/k/a Rascals (United) entered into a lease agreement with Barratti-ni to use the already built, but unimproved, shell area as a night club-lounge and applied to the Safety Department for the proper building permit to put into place the necessary refinements so as to implement the purpose of the lease. After United made its application, the Barrattini building was reinspected; and, as a result of that inspection, Kelly Lynn’s, a tenant, was reclassified from “office” to gymnasium.” Based upon this reclassification, there was a severe shortage of parking spaces and United’s initial application was denied. The Zoning Appeals Board refused to reverse this denial and the matter was ultimately litigated and resolved in favor of United who was given the opportunity to reapply. In addition, the parish was ordered not to use the reclassification of Kelly Lynn’s as a basis for denial of the permit.

United then made a second application and were again denied any building permit by the Department of Inspection and Code of Enforcements. This denial was also due to a shortage of available parking but based upon the present zoning ordinance which requires one parking space per 150 square feet of gross floor area. The Zoning Appeals Board again refused to reverse the denial due to lack of available parking and also cited the change in usage from “restaurant” to “lounge” as an additional factor.

United Talent Associates, Inc. filed the instant suit in the Twenty-Fourth Judicial District Court against the Parish of Jefferson and the Zoning Appeals Board and/or the Safety Department for Jefferson Parish. Judgment was rendered on November 10, 1983, in favor of plaintiff, ruling that defendants’ actions were arbitrary, capricious and unconstitutional and that defendants could use neither inadequate parking nor the use of the premises as a lounge as a basis for denial of the permit. From this decision, Parish of Jefferson and the Zoning Appeals Board have appealed.

On appeal, appellants assert the following specifications of error:

that (1) the trial court erred in not granting the exceptions of defendants/appellants; and that

(2) the trial court further erred in finding the action of the Zoning Appeals Board decision arbitrary, capricious and unconstitutional.

As to appellants’ exceptions, only the res judicata is briefed. Accordingly, we shall address that exception and consider the remaining exceptions abandoned.

Appellants cite Jefferson Parish’s comprehensive Zoning Ordinances, Section XXII-5 which states that an aggrieved party has 30 days from the time the decision of the Zoning Appeals Board is filed in the Board Office to seek relief. Appellants argue the Board’s decision is final in that more than 30 days have elapsed between the time the Board’s decision was filed on December 30, 1982 and appellee appealed that decision to the district court.

December 30, 1982 was the date the first decision by the Board concerning the reclassification of Kelly Lynn’s was filed. That decision is of no importance, nor has any application in the instant litigation which is based upon the. Board’s second denial.

As to the Board’s decision which is at issue in the instant litigation, both the record and appellants’ brief are silent as to when that decision was filed in the Board’s office. Consequently we dismiss this assignment of error.

Appellants additionally contend that the trial court erred in finding the Zoning Appeals Board’s decision to be arbitrary, capricious and unconstitutional. As to this error, appellants admit by brief that the leased, unfinished shell can be used as a restaurant under the 1975 variance; but, however, a “lounge” constitutes a change of use and, therefore, the present parking formula should be applied.

Under the Zoning Ordinances in effect when the variance was granted, restaurants and lounges were treated equally, as to parking requirements, in Section XVIII(2)(11) entitled “General Business, Commercial or Personal Service Establishments Catering to retail trade, including ‘supermarkets.’ ” In the present Comprehensive Zoning Ordinances for Jefferson Parish, restaurants and lounges are still on equal footing, but have been singled out in Section XVIII(2)(18A) entitled “Restaurant and Lounges.” Regardless of whether the parking requirements are placed under the old or present ordinance, those ordinances made no distinction as to which use was being applied.

It is apparent from the record that the Zoning Appeals Board denied appellees their permit for lack of sufficient parking based upon a change in use from restaurant to lounge. Yet appellants have not amply demonstrated any rational basis for the arbitrary distinction made by the Board between a restaurant and a lounge when no such distinction is contained in the statute. We agree with the trial court that such a distinction is arbitrary and capricious.

Accordingly, for the foregoing reasons, the judgment appealed is affirmed at appellants’ cost.

AFFIRMED.


author: FORET, Judge.

text:
    STATE of Louisiana, Appellee, v. James BOUTTE, Appellant.
    No. CR83-878.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 19, 1984.
    Anthony G. Terracina, Opelousas, for appellant.
    Morgan J. Goudeau, III, Dist. Atty., Donald Richard, Opelousas, for appellee.
    Before FORET, STOKER and KNOLL, JJ.
   FORET, Judge.

On November 23,1981, defendant, James Boutte, was charged by bill of information with simple robbery, a violation of LSA-R.S. 14:65. On May 18, 1983, following a trial before a jury of six, defendant was found guilty as charged. The trial court sentenced defendant to serve three years at hard labor.

Defendant has appealed but has not filed any assignments of error nor filed a brief. Assignments of error which have not been briefed are considered abandoned. State v. Fruge, 438 So.2d 1337 (La.App. 3 Cir.1983). Therefore, this case is reviewable only for errors patent discoverable by a mere inspection of the pleadings and proceedings. LSA-C.Cr.P. Art. 920; State v. Jackson, 332 So.2d 211 (La.1976). We have reviewed the record for these errors; finding none, defendant’s conviction and sentence are affirmed.

AFFIRMED.


text:
    SUCCESSION OF Harold William BRACY, Jr.
    No. CA 84 0304.
    State of Louisiana Court of Appeal, First Circuit.
    Oct. 9, 1984.
    Vincent J. Glorioso, Jr., New Orleans, for appellant Clifford Bracy.
    Dolores M. Williams, Patrick J. Berrigan, Slidell, for appellee Patricia A.S. Duff.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The issue in this motion to dismiss is whether or not appellant filed timely a brief following the issuance of a notice of abandonment.

Since appellant failed to file a brief following lodging of his appeal, this Court sent him a notice of abandonment on April 6, 1984. This notice advised appellant his appeal would be dismissed thirty days from April 6 unless a brief was filed before that date. The last day of this thirty day period fell on Sunday, May 6, a legal holiday. La.R.S. 1:55 A(l). Appellant’s brief was hand delivered and filed on Monday, May 7. Appellee then filed the present motion to dismiss this appeal, alleging appellant’s brief was filed untimely. In response, appellant urges Code of Civ.P. art. 5059 should be applied to extend the filing period to the next legal working day.

The court rule dealing with the timely filing of papers does not provide for situations such as the present one. See Uniform Rules, Courts of Appeal, Rule 2-13. However, Code of Civ.P. art. 5059 does provide for an extension until the end of the next legal working day whenever the last day of a period provided by law or court order falls on a legal holiday. We find this provision applicable to the filing of briefs in this Court. See Guillory v. Dept. of Transp. and Development, 450 So.2d 1305 (La.1984).

Accordingly, the filing of appellant’s brief on May 7 was timely. For this reason appellee’s motion to dismiss is- denied at his cost.

MOTION TO DISMISS APPEAL DENIED.