text:
    Richard A. GOINS, and his wife, Jane P. Goins v. TEXAS STATE OPTICAL, INC., the Optometric Group, Dr. Kenneth R. Parker, and Their Liability Insurers.
    No. CA-2142.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.

      C. David Schumacher, Carl J. Schumacher, Jr., Schumacher Law Corp., Ltd., New Orleans, for plaintiffs-appellants, Richard A. Goins and Jane P. Goins.
    Chester A. Fleming, III, Boggs, Loehn & Rodrigue, New Orleans, for defendants-ap-pellees, The Optometric Group and Dr. Kenneth R. Parker.
    Before KLEES, CIACCIO and WARD, JJ.
   WARD, Judge.

Richard and Jane Goins appeal a judgment sustaining an exception of prematurity and dismissing without prejudice their medical malpractice suit against Dr. Kenneth R. Parker and the Optometric Group. The exception asserted that both defendants were qualified health care providers under the Louisiana Malpractice Act, La. R.S. 40:1299.41 et seq, and therefore entitled to a medical review panel determination prior to the filing of a lawsuit against them.

On appeal, Goins contends that the Trial Judge erred in dismissing the lawsuit because the evidence is inexplicably conflicting and thus Dr. Parker and the Optomet-ric Group failed to carry their burden of proving they were qualified under the Act at the time of the alleged malpractice. While we agree that the evidence is contradictory and perplexing, we believe that the Trial Judge was correct in finding that the defendants were enrolled as qualified providers and consequently that Goins’ suit should be dismissed as premature. Hence, we affirm.

In reviewing the record, we are mindful that the burden was on defendants to show they were immune from suit as qualified providers under the Act. Chiv-leatto v. Divinity, 379 So.2d 784 (La.App. 4th Cir.1979). Defendants urge that we employ the standard of review we used in Abadie v. Morales, 391 So.2d 974 (La.App. 4th Cir.1980) and Smith v. Borden, Inc., 413 So.2d 701 (La.App. 4th Cir.1982), that is, that we give great weight to the Trial Judge’s reasonable evaluations of credibility and reasonable inferences of fact and not substitute our own equally reasonable evaluations and inferences, absent manifest error by the Trial Judge. While we agree with counsel for defendants that the suit is premature, we do not agree with his assertions that the Trial Judge’s finding of fact must be shown to be manifestly erroneous. We find this standard inapplicable in this case because all of the evidence presented to the Trial Judge was documentary and we have all of that evidence in the record before us. Moore v. Travelers Indemnity Co., 352 So.2d 270 (La.App. 2nd Cir.1977). Three sets of documents from Cheryl Jackson, the Commissioner of Insurance’s Chief of Medical Malpractice, are the only evidence in the record from the hearing on the exception. We are in as good a position as the Trial Judge to weigh evidence which is introduced in written form; therefore, the manifest error rule does not apply. Schwarz v. Bourgeois, 422 So.2d 1176 (La.App. 4th Cir.1982). Rather, we examine the record to determine whether it shows by a preponderance of the evidence that the Optometric Group and Dr. Parker were qualified under the Louisiana Medical Malpractice Act in October 1982 when the alleged act of malpractice occurred.

To show that they were qualified, the Optometric Group and Dr. Parker placed in evidence a transmittal letter from Chief of Medical Malpractice Cheryl Jackson and original Certificates of Enrollment, dated December 14, 1983, from the Commissioner of Insurance, certifying enrollment under La.R.S. 40:1299.41 et seq. with effective dates of May 15, 1981 to May 15, 1984. These Certificates were prima facie evidence of their contents and it was up to Goins to rebut this evidence of the defendants’ qualification. He introduced: 1) a letter of September 22, 1983, received from the Chief of Medical Malpractice in response to his counsel’s inquiry, stating that the Optometric Group and Dr. Parker were not qualified, and 2) a Certificate of Enrollment, dated December 2, 1983, certifying the enrollment of the Vision Center and the Optometric Group, effective May 16, 1983 to May 16, 1984.

The September 22, 1983 letter, although puzzling because directly contradicted by the Certificates introduced by defendants, does not prove that those Certificates are wrong, and plaintiff has not rebutted defendants’ prima facie case. And although the December 2nd Certificate is irrelevant — it covers a period several months after the alleged malpractice — the December 14th Certificates, signed by the Chief of Medical Malpractice in her official capacity, are presumed to be genuine and full proof of their contents. La.R.S. 13:3712; Byles Welding & Tractor Co. v. Cap-Con International, 342 So.2d 700 (La. App. 3rd Cir.1977) Thus, we find the Certificates both stronger and more recent proof of the defendants’ qualification under the Medical Malpractice Act. If Goins believed there were irregularities in the defendants’ qualification, he should have called witnesses or introduced other evidence at the hearing on the exception. It is unfortunate that the Commissioner of Insurance gave Goins’ counsel erroneous information which misled him into filing suit. Nevertheless, the record shows that the Optometric Group and Dr. Parker were qualified under the Medical Malpractice Act in October 1982, and La.R.S. 40:1299.47 requires Goins to submit his claim to a medical review panel.

We therefore affirm the judgment dismissing Richard and Jane Goins’ suit without prejudice, with all costs of this appeal to be paid by Mr. and Mrs. Goins.

AFFIRMED.


source: Caselaw Access Project

author: WARD, Judge.

license: Public Domain

text:
    Walter FAUST, Jr. v. Steve LOMBARDO, James P. White, The Blue Dawn Oyster Company, the Merit Insurance Company and St. Paul Fire and Marine Insurance Co.
    No. CA-2202.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.
    Writ Denied March 15, 1985.

      Frederick A. Miller, New Orleans, for defendants-appellants, James R. White, d/b/a Blue Wave Oyster Co. and Merit Ins. Co.
    Frederick J. Gisevius, Jr., Jane M. Gisevi-us, John Wade Carpenter, New Orleans, for plaintiff-appellee, Walter Faust, Jr.
    Before KLEES, CIACCIO and WARD, JJ.
   WARD, Judge.

James R. White, d/b/a Blue Wave Oyster Company, and his insurer, Merit Insurance Company, appeal a judgment based upon a jury verdict in favor of Walter Faust, Jr., for $100,000.00 in damages sustained in an automobile collision. The defendants contend that Faust failed to prove that all of his injuries were caused by the accident and further that the amount awarded in the Trial Court judgment was excessive. We find no manifest error in the jury’s findings and affirm the judgment.

The accident happened at the intersection of St. Claude and Poland Avenues in the City of New Orleans at approximately 6:15 on the rainy morning of March 30, 1981. Blue Wave’s pickup truck, driven by Steve Lombardo, ran into the back of Mr. Faust’s car which was stopped at the traffic signal. The defendants did not appeal the jury’s finding of liability.

Mr. Faust alleged that the force of the collision caused his head to hit the car steering wheel; his only apparent injury at that time was a bruise on the head. However, in the following months, Mr. Faust, who was 64 years old at the time of the accident, sought medical treatment for headaches, neck and back pain, numbness in his extremities and related problems. In late July 1982, fifteen months after the accident, Mr. Faust was admitted to Hotel Dieu Hospital in a state of great mental confusion, unable to walk or speak. Tests revealed a subdural hematoma, a blood clot between the skull and brain, requiring immediate surgery and ten days hospitalization.

On appeal, the defendants first contend that it was manifest error for the jury to find that the collision caused Mr. Faust’s subdural hematoma. The defendants argue that it probably was caused by Mr. Faust’s falling and hitting his head a few weeks before the surgery, and whatever the cause of the hematoma, it had not existed for the fifteen months between the accident and the surgery.

Since both Mr. Faust and the defendants presented extensive evidence concerning the development of the hematoma, we have reviewed that evidence in resolving the issue of causation.

The first doctor to testify was Dr. Victor Chisesi, an orthopedic surgeon, whom Mr. Faust consulted a few days after the accident. Mr. Faust told Dr. Chisesi that since the accident he had been having headaches, neck and low back pain, dizzy spells, and numbness in his right hand. Dr. Chisesi testified that he believed Mr. Faust had sustained an acute cervical and lumbo-sacral strain and that the collision had aggravated pre-existing arthritic changes in his spine, causing them to become symptomatic. Dr. Chisesi treated Mr. Faust with medication and therapy, discharging him in October of 1981 because his condition was much improved. In March 1982, Mr. Faust returned to Dr. Chisesi, complaining of severe headaches and neck and back pain. Dr. Chisesi reinstituted medication and physical therapy, but he still believed the spinal condition was the cause of the headaches, even though their severity aroused his suspicions. After the surgery to drain the hematoma, Mr. Faust again went to Dr. Chisesi and told him that his headaches were markedly diminished. Dr. Chisesi changed his opinion, and now, in retrospect, he believes that the hemotoma had been causing the headaches all along. However, Dr. Chisesi testified that it was possible the headaches were a result of the cervical strain or other causes and admitted that he was not a specialist in neurology, the medical field dealing with the causes, symptoms and treatment of subdural hematomas.

Dr. Donald Richardson, the neurosurgeon who operated on Mr. Faust and the only doctor to actually examine the hemato-ma, described it as “longstanding.” He based this opinion on the consistency of the blood in the hematoma and the thickness of the membrane surrounding it. He estimated the age of the hematoma as “obviously older than a month and probably much older” and said it “could be anywhere from a few weeks to many months.” Dr. Richardson testified that symptoms of a sub-dural hematoma are typically slow to develop in a patient of Mr. Faust’s age. Given a choice of which trauma — the automobile collision or the fall — caused the hematoma, Dr. Richardson stated his belief that the older one was the cause.

Dr. Richardson testified that the age of a subdural hematoma cannot be determined by an examination of the fluid drained from it. However, Dr. J. Ralph Meier, the pathologist who examined the fluid specimen from Mr. Faust’s hematoma, testified that he could indeed estimate the hemato-ma’s age. Dr. Meier stated that the character of the fluid which collects in a sub-dural hematoma changes as the blood breaks down over time. Because he found recent blood clots and intact blood cells in the opaque, dark brown fluid drained from Mr. Faust’s hematoma, Dr. Meier believed it was caused by a blow to the head which occurred only one to three weeks before the surgery.

The defendants presented the expert testimony of Dr. Bert R. Bratton, a neurosurgeon who had examined Mr. Faust’s medical records and the depositions of Mr. Faust and his treating physicians, Dr. Chi-sesi and Dr. Richardson. He testified that the color and character of the fluid in a subdural hematoma are a better indicator of its age than the thickness of its membrane. He stated that the fluid in a four to six week-old hematoma is dark and bloody, while that from an extremely old one is straw-colored or golden. He further stated that symptoms, including headaches, confusion, and paralysis, usually become severe enough to cause a patient with a hematoma to seek medical attention within four to six weeks after the trauma which caused it. He gave his opinion that Mr. Faust’s hema-toma developed six to eight weeks before the surgery.

There is little evidence concerning Mr. Faust’s fall which defendants assert as a possible cause of the hematoma, Mr. Faust testified only that five or six weeks before the hematoma was discovered, he was alone in his sister’s yard when he became dizzy and fell, hitting his head on the pavement. He testified that, in falling, he caught himself with his arm and sustained only a scratch near his eye for which he did not seek medical attention.

After hearing this evidence during a five-day trial, the jury answered interrogatories, finding that the automobile collision caused Mr. Faust’s head injury as well as his spinal injury. We cannot say this finding was manifestly erroneous.

The jury, as trier-of-fact, was obliged to weigh and evaluate all testimony of medical experts as well as lay persons to determine the most credible and reasonable explanation of the cause of the subdural hematoma. A trier-of-fact may accept or reject the opinion expressed by any medical expert, depending upon the relationship between the factual evidence and the expert’s qualifications and testimony. Generally, the testimony of a treating physician is entitled to more weight than that of an equally qualified physician whose opinion is based only upon an examination of records, reports and other documents; and the opinion of a specialist as to matters within his field is entitled to greater weight than an opinion on the same subject by a specialist in another field.

Dr. Richardson, and the pathologist, Dr. Meier, both treating physicians, gave opinions within their specialties. Although the testimony of these two doctors was contradictory, after considering the entire record, we cannot say that it was unreasonable for the jury to have given the most weight to Dr. Richardson’s opinion that the hematoma was probably much more than a few weeks old.

As an alternative rationale for the jury’s finding of causation, we believe it entirely plausible that the hematoma was caused by Mr. Faust’s falling and striking his head, but that defendants remain liable since the cause of the fall was dizziness, a persistent lingering symptom of the neck and back injuries from the automobile accident. Although indirect, causation is still present. Mr. Faust’s fall was a foreseeable result of the collision, and not an intervening cause of the hematoma as defendants argue. Therefore, the defendants are liable for the hematoma, even if caused by the fall, as well as for the neck and back injuries which were a more direct result of the collision.

Defendants’ second contention on appeal is that the award of $100,000.00 in damages to Mr. Faust was excessive. The jury returned that lump sum in unspecified damages upon Mr. Faust’s claim for special damages of approximately $11,000.00, future medical expenses, loss of past and future earnings, and personal injuries— acute cervical and lumbar strain, aggravation of arthritis of the spine, nervousness and emotional strain, as well as the subdural hematoma. Although the defendants contested the amount of the verdict, the Trial Judge denied their rule for remittitur or a new trial. On appeal, the defendants contend that Mr. Faust failed to prove several elements of the damages he alleged. They say the proof was insufficient to compensate Mr. Faust for future medical expenses, lost earnings, or aggravation of the arthritis and nervous condition.

When a judgment itemizes the damages it compensates, this Court can evaluate each element of the award independently of the others. However, in cases such as this, where the plaintiff recovers an in globo award, it is impossible to discern what amounts the jury felt were appropriate for various elements of damages. Therefore, we must consider all proven injuries to determine if, taken as a whole, the damage award is excessive.

Since we include damages for Mr. Faust’s subdural hematoma and find it was within the jury’s discretion to compensate him for lost earnings, acute cervical and lumbar strain, and aggravation of arthritis and a nervous condition in addition to the special damages, we cannot say the award of $100,000.00 is clearly excessive.

We therefore affirm the judgment in favor of Walter Faust, Jr., with all costs of this appeal to be paid by defendants.

AFFIRMED.


text:
    STATE of Louisiana v. Cornelius D. PETIT.
    No. KA-2497.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Kathy Lee Torregano, Asst. Dist. Atty., New Orleans, for plaintiff-appellee, State of La.

      John H. Craft, Craft & Doskey, New Orleans, for defendant-appellant, Cornelius D. Petit.
    Before KLEES, CIACCIO and WARD, JJ.
   WARD, Judge.

Cornelius D. Petit was convicted by a six member jury of illegal possession of a stolen car, a violation of La.R.S. 14:69. He was sentenced to three years at hard labor, but the sentence was suspended, and he was placed on active probation, with conditions as part of probation that he pay a fine and make restitution to the victim for property damage to his automobile. Petit contends there is insufficient evidence to support his conviction and requests this Court to review the record for sufficiency of the evidence in compliance with the standards of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We believe there is sufficient evidence to support Petit’s conviction for the crime.

The evidence shows that on April 25, 1983 George Western was robbed at gun point of his automobile, a blue 1981 Audi, by two men. On April 27, 1983 at approximately 1:00 a.m., New Orleans Police Officers Daniel Luther and Harold Buttone, while in an unmarked police car going west on I — 10, observed a blue 1981 Audi pass their car at a high rate of speed. Its license plate was dangling by one bolt, and one of the four passengers, seated in the back of the car, kept looking back nervously at the police.

The officers followed the Audi while using the police radio to request a license and registration check. They continued to follow the car as it exited off the I — 10 at Elysian Fields. Meanwhile, the license check revealed that the plate on the Audi belonged to a 1973 Chevrolet.

Officer Luther then called for assistance to stop the Audi and turned on the siren and blue lights. The Audi stopped, and Officer Luther got out of the police car and approached the Audi.

Another police unit responded to the call for assistance and blocked the path of the Audi by stopping some distance in front of it. Although the street was well lit, Officer Luther used his flash light. As he approached the Audi, he could observe all the occupants of the car and noticed they acted nervously. When the officer was just a short distance from the car, its driver suddenly accelerated and went around the police unit blocking its path. A high speed chase ensued. During the chase, the police stayed close behind the Audi and were able to see inside the car. During the chase, the Audi crashed into a parked car and all four occupants “bailed out” and started running. The officers continued to chase the four men.

After losing sight of the suspects, Officer Luther called in a description of the men over the police radio. He described the driver of the Audi, later identified as Cornelius Petit, as a young black male in his twenties with short cropped hair and wearing a dark colored shirt and hat. The hat had white letters with the words “Gus Betat and Sons, New Orleans, Louisiana.”

Within a few minutes, the police apprehended three of the four men, including Cornelius Petit, and Gregory McKnight. Petit was stopped by Officer William Rei-her and his partner about ten blocks from where the Audi had been abandoned. The plainclothes officers identified themselves as police, frisked Petit for weapons, and told him he was not under arrest, but that he fit a general description of a suspect. Officer Reiher also testified Petit was breathing and perspiring heavily.

Petit voluntarily accompanied the officers to meet Officers Luther and Buttone where he was positively identified by Officer Luther as the driver of the Audi and arrested. Petit was wearing the Gus Betat hat.

Other police officers who were involved in the incident testified and corroborated Officer Luther’s testimony. The officers’ testimony was uncontradicted by Petit or his witnesses.

At trial, George Western, the owner of the Audi, identified Gregory McKnight as one of the two men who robbed him at gunpoint. He testified Petit was not one of the armed robbers. Gregory McKnight, was charged and later convicted of that armed robbery. Petit testified he was at a local bar for its Tuesday night fish fry until about 12:45 a.m. when he left to walk to his girlfriend’s apartment, about one mile from the bar. The owner of the bar testified Petit was at the bar until 11:30 p.m. Petit’s girlfriend testified that Petit never did arrive at her apartment.

The crime of possessing stolen things consists of four separate elements:

(1) the intentional possessing, procuring, receiving, or concealing;

(2) of anything of value;

(3) which has been the subject of robbery or theft;

(4) under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses. Petit does not challenge elements two and three, but claims the State failed to prove elements one and four.

Because we must consider the evidence in the light most favorable to the State, we consider as proven that Petit was the driver of the stolen vehicle, that the license plate had been changed, that the man who robbed Western of the vehicle was a passenger, and that Petit attempted to flee. Flight may be considered as evidence of a guilty mind. Considering these facts as proven we have no difficulty in concluding that the Jackson v. Virginia standard has been readily met, i.e., a rational trier of fact could conclude that the State proved beyond a reasonable doubt that Petit had knowledge the Audi he was driving was a stolen vehicle and that he is guilty as charged.

AFFIRMED.

      . Shawn Defillo, another occupant of the car, was tried as a co-defendant with Cornelius Petit. This appeal applies to Cornelius Petit only.


author: WILLIAMS, Judge.

text:
    Hubert THOMAS v. WEATHERFORD INTERNATIONAL and Aetna Casualty and Surety Company, Inc.
    No. CA2189.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.

      Robert F. Lakey, Margaret Anne Bretz, Porteous, Hainkel, Johnson & Sarpy, New Orleans, for defendant-appellee.
    Gordon Hackman, Boutte, for plaintiff-appellant.
    Before REDMANN, GULOTTA and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a decision of the trial court finding plaintiff Hubert Thomas could not recover for injuries he sustained while working as a hydroblaster for Coastal Power Cleaning.

Plaintiff Thomas was using a hydroblaster, or water blaster, to clean out sugar residue in a large tank at Amstar [Sugar] Refinery. He suffered injuries to his feet while operating the water blaster, alleging that 10,000 pounds of water pressure caused severe damage. He alleged in petition that the defendant manufacturer of the water blaster was strictly liable for placing a defective product into commerce, and also that the injury could have been avoided if defendant had warned the users of the need for special protection and had provided that protection, i.e. equipment. After a trial, the court held that plaintiff had failed to carry his burden of proof and ruled in favor of defendants.

There are two basic issues on appeal: (1) whether the trial court was in error in failing to order the defendant to produce materials that had been subpoenaed by the plaintiff and in granting defendant’s motion to quash, and (2) in its determination that plaintiff had failed to carry his burden of proof in proving that the manufacturer was liable.

SUBPOENA

On March 15, plaintiff filed subpoenas asking opposing attorneys for “all documents and manuals concerning the sale, operation, maintenance and design of the water blaster machine [which plaintiff was using at the time of the accident] ...” and also “for all documentations concerning complaints, design defects, safety defects, or accidents relating to the water blasting machine in question ...” On the date of trial, March 30, the defense filed a motion to quash the subpoena on the grounds that it was oppressive and burdensome. Defense counsel supplied the manuals but claimed that the remainder of the requested items could not be produced in such a short time because the request contained in the subpoena was too broad. The plaintiff asserted that he would be satisfied with a stipulation that the manufacturer knew that accidents such as the one involving the plaintiff had occurred prior to the injury. The defense refused to enter into such a stipulation, and the trial court granted the defense motion to quash.

One of the reasons given by the trial court in refusing to require the production of the information requested in the subpoena was that such a short period of time was given in which the defense had to comply: subpoenas were filed on March 15, served on counsel on March 18, and trial was held on March 30. The plaintiff argues that this argument is in error because a similar subpoena had been issued to defendants for a previous trial date in July of 1982, for all records pertaining to any claims made by any person against manufacturer because of the operation of the hydroblasters. The requests in the second subpoena, however, were broader than that contained in the first subpoena served almost a year prior. The request in the subpoena served for the March trial date is extremely broad and cumbersome, especially when viewed in the light that it was served only two weeks before trial.

The trial court is granted discretion in deciding whether a subpoena should be quashed. See Bank of New Orleans and Trust Co. v. Reed Printing and Custom Graphics, Ltd., 399 So.2d 1260, 1261 (La. App. 4th Cir.1981). We find that there was no abuse of this discretion, and the ruling of the trial court was not in error.

PROOF

The defendant assigns several errors made by the trial court, relative to plaintiffs failure to sustain his burden of proof. The defense specifically argues that the trial judge was in error in: (1) holding that plaintiff needed expert testimony in order to prove that there was a duty to warn on the part of the manufacturer; (2) in finding that the device was not defective; and (3) in rejecting plaintiff’s testimony that he had never worked with high water pressure before and was unaware of the danger.

At trial, the plaintiff testified that he had used these high pressure water guns for three or four days and had not been given any instructions in its use. He testified that he wore no protective gear other than rubber boots, although on cross-examination he admitted that the rubber boots were steel-toed. Furthermore, in deposition he testified that he had done a lot of blasting with that type of machine, although he did not admit it at trial. Plaintiff also stated that he was not given any instructions by Coastal Power Cleaning on the use of the water machine. Finally, plaintiff had stated in his job application that he was experienced with the use of this machine.

The owner of Coastal Power Cleaning, Arthur Miller, testified that he instructed the defendant along with the other workers with the proper use of the machine, and its potential dangers. He stated that the workers were told never to point the machine at any part of the body or at any other person.

The only evidence offered at trial by the plaintiff was his testimony. The trial court found that the sole cause of the accident was Thomas’s negligence in the operation of the machine.

After the reviewing the evidence contained in the record, it was not an abuse of the trial court’s wide discretion to decide against plaintiff. The record is void of any evidence of any other problems with the machine other than an incident which occurred at the Amstar facility the same day as plaintiff’s injury. No evidence of design defect was introduced at trial. Plaintiff failed to carry his burden of proving that a defective device was placed into commerce.

Finally, plaintiff argues that the trial court was in error in applying a contributory negligence standard, because this is a products liability case and assumption of the risk is the proper standard to be used. This argument is totally without merit, because the trial court held that the device was not defective, and therefore, strict liability on the part of the manufacturer did not attach.

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

AFFIRMED.


text:
    Ray E. LAUGA and Alcide W. Hernandez v. Ralph J. McDOUGALL and American Druggist Insurance Company.
    Nos. CA2171, CA2172.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.
    Ray E. Lauga, pro se.
    Alcide W. Hernandez, pro se.
    Emile L. Turner, Jr., Wilbur J. “Bill” Babin, Jr., New Orleans, for defendants-appellants.
    Before REDMANN, GULOTTA and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a ruling by the trial court sustaining an exception of no cause of action filed by defendants Ralph J. McDougall and his insurer American Druggist Insurance Company.

McDougall was Sheriff of St. Bernard Parish, and plaintiffs were deputies within his department. Plaintiffs were investigated by federal authorities after a drug seizure, and plaintiffs appeared to be implicated in it. As a result of the investigation, McDougall testified before the U.S. Grand Jury which subsequently returned indictments against plaintiffs. Plaintiffs were then tried by a jury and found guilty of the charges. A motion for a new trial was granted, and the second jury trial resulted in plaintiffs’ acquittals. McDougall testified at the motion for new trial and at both trials. After their acquittals, plaintiffs brought an action against McDougall for deliberately and willfully testifying falsely during the investigation into the smuggling activities as well as at the various hearings and trials held in federal court. Defendants filed a motion for summary judgment and exceptions of no cause and no right of action. The trial court dismissed the motion for summary judgment, but granted the exception of no cause of action. It is from this ruling that plaintiffs now appeal.

The issue involved in this appeal is whether the remarks made by McDougall during the investigation and during the court proceedings were privileged. The defendants argue that McDougall’s remarks were based upon an absolute privilege, which carries with it absolute immunity from a defamation suit. Plaintiffs argue that this privilege is qualified, and therefore should they prove malice, they will be allowed to recover.

Louisiana has granted absolute immunity in judicial proceedings to a non-litigant, or non-party, witness. See Moity v. Busch, 368 So.2d 1134, 1136 (La.App. 3d Cir.1979); Hairford v. Long, 430 So.2d 393, 394 (La.App. 3d Cir.1983); Bienvenu v. An-gelle, 254 La. 182, 223 So.2d 140 (1969). This rule has been followed by the Fourth Circuit in Freeman v. Cooper, 390 So.2d 1355,1359 (La.App. 4th Cir.1980). Because McDougall was not a party to the grand jury proceedings or trials, he was allowed absolute immunity from prosecution for a defamation action.

The Louisiana Code of Civil Procedure provides that a party be allowed to amend a petition if such amendment would cure any defect that would normally be grounds for peremptory exception. La.C. Civ.Pr. art. 927. We, therefore, remand to allow plaintiffs a reasonable amount of time in which to do so.

AFFIRMED AND REMANDED.


author: BOUTALL, Judge.

text:
    Patricia Crocker LOWE v. Claude W. LOWE.
    No. 84-CA-240.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.

      Jamie F. Yeverica, Gretna, for Patricia Crocker Lowe plaintiff-appellee.
    Floyd J. Reed, Reed & Reed, New Orleans, for Claude W. Lowe defendant-appellant.
    Lenon J. Parent, Jr., Gretna, individually and on behalf of the appraisers.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   BOUTALL, Judge.

This case arises from a suit to partition community assets after a divorce. From a judgment of partition both parties have appealed.

Patricia Crocker, now Mrs. Dauzat, and Claude W. Lowe were married in 1960, legally separated in 1978 and divorced on September 6, 1979. The divorce decree incorporated previous judgments that granted custody of the couple’s four minor children to the wife and which ordered the husband to pay $250 per month child support, the monthly mortgage notes on the family residence occupied by the wife and children, and school tuition for the children.

Shortly after the divorce, on October 24, 1979, Mr. Lowe petitioned for partition of the community property and appointment of a notary and appraisers to make an inventory.

In March, 1981 a proces verbal of the inventory was filed. Mr. Lowe filed an opposition to homologation or alternatively a rule to amend the inventory, demanding changes in the valuation of certain movable items and the deletion of others on grounds of their being his separate property. He amended his motion to add deletion of a home which he purchased a month before the marriage. Judgment on the rule was signed in June, 1981, deleting the immovable property as separate but homologating the inventory without any other changes.

Claude Lowe filed a motion for new trial, after which, on November 4, 1981, the parties signed a consent judgment incorporating some changes in the movable items and ordering the current family home to be sold at a sheriffs sale. The judgment further recognized Patricia Lowe’s interest in annuities, lump-sum payments, or other benefits paid to Claude Lowe by his employer, South Central Bell, accruing in the period of the marriage, June 25, 1960 through August 29, 1977.

Trial of the merits of the partition was held on April 8, 1988. In the course of the hearing the judge and parties referred to two documents, a “Community Property Division Proposal” filed by Mr. Lowe and “Findings of Fact,” filed by the notary. At the end of the hearing the court asked counsel for the two parties to submit briefs on the major areas of controversy, the wife’s interest in the retirement fund and the husband’s entitlement to reimbursement for mortgage payments from date of filing for separation until the judicial sale of the property on August 11, 1982. Neither party filed a brief. The court rendered judgment on June 6, 1983, ordering the following:

1. Mr. Lowe’s claim for credit for mortgage payments was denied. -
2. Mrs. Lowe’s interest in Mr. Lowe’s retirement plan was determined to be 17.2 years, with these values:
“Retirement 1992 — Plaintiff’s portion
of retirement benefit $237.15
"Retirement 1999 — Plaintiff’s portion of retirement benefit $235.80
“Retirement 2002 — Plaintiff’s portion of retirement benefit $235.06”
3. Mr. Lowe’s claim against Mrs. Lowe of $1,897.79 was approved.
4. All other items of the partition were approved and homologated.
5. The notarial fee was set at $7500.00 and that of the appraisers at V2 of 1% each of the gross community inventory of $162,060.61.
6. The proceeds of the judicial sale, minus the notarial fee, the appraiser fees, and the notary’s expenses of $80.60 were to be disbursed to the parties “as their interests may appear.”

Both parties have appealed the portions of the judgment related to the retirement plan and the notary’s and appraisers’ fees.

In addition, Claude Lowe assigns the following errors:

1. in regard to the “other items of the partition,” a) the credit of $500 to Mr. Lowe to adjust the difference in value of movables in his possession and in Mrs. Lowe’s; b) valuation of the Bell System Savings Plan at $1,772.72; and c) the credit to Mr. Lowe of $1,100 for loan repayment to Grace Lowe;

2. failure to credit Mr. Lowe with $29,-694.84 for mortgage payments and $728.01 paid in escrow to the homestead.

Patricia Lowe appeals, in addition to the portions relating to the retirement plan and the fees, that provision allowing Mr. Lowe’s claim of $1,897.79 against her. She asserts that that amount is due to her as a credit and that she is also due $364.01, representing one-half the escrow payment, or a total claim of $2,261.80.

Notary’s and Appraisers’ Fees

Both parties urge that the notary’s and appraisers’ fees are unreasonable and point out that the $7,500 award to the notary is 4½% of the gross value of the inventory, $162,061.61. They argue that because the inventory is comparable to that in Tutorship of Vinall, 441 So.2d 348 (La. App. 5th Cir.1983), similar fees should be set, i.e. $1,620.00 for the notary and $100 for each appraiser. The Vinall case is clearly distinguishable on facts. The only items to be inventoried in that case were five life insurance policies. The notary was required to spend only minimal time and labor, and the appraisers did not work other than signing the inventory. The case at hand required considerably more time and expertise.

Mr. Lowe states that there is no evidence in the record to justify the fee. While no evidentiary hearing was held regarding the work performed, the same judge presided over the bitter struggle between the parties from the beginning and was aware of the effort expended over a three year period. The minute entries, pleadings, and transcripts of hearings contained in the record substantiate the volume of work detailed in the notary’s appellate brief. Further, we note that the process verbal of the inventory listed more than fifty items.

Mrs. Lowe argues that the notary duplicated actions taken by her counsel, and that the fee should be lower because the proceeds available from the judicial sale amount to just $18,000. Those arguments have no merit, as the couple had many disputes between them which required the work involved. Had there been no disputes, they would not have had to resort to judicial partition and could have submitted their own proposal of division of their assets and debts.

The Supreme Court in Hill v. Hill, 434 So.2d 1078 (La.1983) affirmed fees set by the trial judge in a partition of community assets and recognized that because the court is authorized to appoint the notary and appraisers and to set their fees, it is constrained to set reasonable fees. The Court said, at 1082:

“... To determine reasonable fees for the notary and appraisers, the court should consider many factors such as (1) the time and labor of the notary and appraisers, (2) the value of the inventory, (3) the number of property items to be inventoried, (4) the fee customarily charged in the locality for similar services, and (5) the experience, reputation and ability of the notary and appraisers.”

Bearing in mind the criteria set out in Hill v. Hill, supra, we find no abuse of the trial judge’s discretion.

Wife’s Interest in Retirement Plan

Both parties argue that the judgment is incorrect in that it places a dollar amount upon the wife’s interest in Mr. Lowe’s retirement plan. It states that Mr. Lowe’s retirement benefits are to be determined by the formula in Sims v. Sims, 358 So.2d 919 (La.1978). The court explained the wife’s entitlement in the Sims case as follows, at 924:

“The contractual arrangements between the employer and the employee, by which benefits are not payable under such determinative date, is not altered by the dissolution of the community prior thereto. The community’s dissolution before such date does not substitute for the employee’s retirement (or separation or death) as the event which fixes the employer’s liability and which causes payments to become due. When they do become due, however, so as then to have a determinate value, the non-employed spouse is entitled to receive the proportion of them recognized by this judgment as attributable to the other spouse’s employment during the existence of the community.”

The formula used is:

Portion of pension attributable to creditable service during existence of community
_X 1/2 X annuity or
Pension attributable to total lump-sum payment creditable service

In this case, as in Sims, the amount of the retirement benefit cannot be determined until the employee actually retires. The judgment, as written, is not in accordance with the current law and should be amended to recognize Mrs. Lowe’s right to receive her community share of the benefits attributable to 17.2 years in the plan at such time as the money is payable to Mr. Lowe.

Mortgage Payments

Mr. Lowe insists that he should receive full reimbursement for $29,694.84, the total amount he paid on the mortgage notes from the date of filing the petition for separation until the partition sale, plus $728.01 paid into escrow. Mrs. Lowe contends Mr. Lowe is not entitled to reimbursement or rent for the mortgage notes he paid and that she is entitled to one-half of the money paid into escrow, as that was a deficiency which should have been paid on the mortgage notes and was not.

A complicating factor in this issue is that the mortgage payments were included as part of the child support in both the separation and divorce judgments. It is not disputed that the divorce judgment had not been modified prior to trial of the partition. For that reason, the trial judge refused to grant reimbursement even though Mrs. Lowe had remarried in December, 1979 and had lived in the house until June 15, 1982 with her new husband and one of his children along with the four Lowe children. However, at trial the judge said:

“... I intend to allow him rather than mortgage payments, a credit for rent from the time that the former Mrs. Lowe remarried until she left the house, but I have no idea what the rental value of the place is.”

The judge did not provide for such an allowance in the judgment of partition.

Counsel for Mr. Lowe states in his brief that:

“Michael v. Michael, 415 So.2d 229 (La.App. 2nd Cir.1982); Lentz v. Lentz, 411 So.2d 59 (La.App. 4th Cir.1982); and Kennedy v. Kennedy, 391 So.2d 1193 (La.App. 4th Cir.1980), writs denied 396 So.2d 883 (La. 1981), have all recognized that, following the filing of a petition for separation, or divorce, a spouse may recover all of the money paid on monthly mortgage payments on the community home.”

In Lentz v. Lentz, supra, the court held that the paying spouse was entitled to reimbursement from the wife of one-half of the amount of the mortgage payments. The court explained as follows at 61:

“Our long settled jurisprudence is that following termination of the community between a husband and wife the two parties become owners in indivisión of the immovable property which had belonged to the community; each owner in indivisión is entitled to possess or use the common property without the obligation to pay rent therefor, provided that such possession or use is not to the exclusion of his co-owner; and each co-owner has the obligation to maintain and preserve the property, or vis-a-vis each other, pay his share of the cost thereof.
“In the instant case the property could not have been maintained and preserved without payment of the mortgage principal, interest, taxes and insurance. Without payment of all of these components it could be lost by foreclosure. Accordingly, we hold appellant is entitled to be reimbursed, out of his wife’s share of the funds to be distributed, one-half of all the amounts paid by him, with his separate funds, on the mortgage notes, including principal, interest, taxes and insurance. ...”

In Michael v. Michael, supra, and Kennedy v. Kennedy, supra, the separate estate of the paying spouse was allowed a credit against the community of the full amount spent. See also Gondrella v. Gondrella, 347 So.2d 938 (La.App. 4th Cir.1977).

In the case at hand the wife opposes any reimbursement. She first points out correctly that coowners are not obligated to pay rent if they occupy the common dwelling. See Lentz v. Lentz, supra; Arcement v. Arcement, 162 So.2d 813 (La. App. 4th Cir.1964); Loret v. Fugler, 71 So.2d 384 (La.App. 1st Cir.1954).

The wife urges further that the husband is not entitled to reimbursement because, as held by the court, the separation and divorce judgments required him to make the payments as support. Her counsel does not cite any cases with similar fact situations; however, Cookmeyer v. Cook-meyer, 354 So.2d 686 (La.App. 4th Cir. 1978), does deal with one. In that case, the couple owned a double house. The separation judgment provided that the wife and children would live in one half of the house and the husband would pay the monthly note, thus providing housing. The court of appeal ruled as follows, at 693:

“... [T]he order necessarily envisioned the husband’s bearing, as part of alimony and child support, the interest and any tax and insurance components of the monthly mortgage payments (since those items accomplish nothing other than payment, in part, for the use of the double), but not the principal payment. Alimony is not ordinarily intended to provide investment capital for the needy spouse; Naughton v. Naughton, La.App. 4th Cir. 1974, 304 So.2d 679. Accordingly we would allow the husband’s claim, but only for the principal of the mortgage debt on the community double paid by him....”

Mr. Lowe made escrow payments for insurance and/or taxes in the amount of $728.01 to the homestead because the monthly notes were insufficient to cover the amount needed. After denying reimbursement for the mortgage payments, the court allowed Mr. Lowe reimbursement for half the escrow, over the objection of the wife’s counsel. However the judgment makes no mention of the escrow payment. Counsel for Mr. Lowe demands reimbursement for the full amount.

We believe that this case is governed by the holding in Cookmeyer v. Cookmeyer, supra, and not by the cases cited by the plaintiff. Under that ruling Mr. Lowe should be reimbursed by the community for the amount by which his mortgage payments reduced the principal debt and not for monies expended for insurance, taxes, or maintenance of the house. Neither the husband nor the wife is entitled to credit for the escrow payment.

Other Items of Partition

Community Movables in Mr. Lowe’s Possession. Mr. Lowe appeals the adjustment to him for community movables. The record indicates that, referring to the Community Property Proposal, the judge allotted a “round figure credit of $500” to cover the difference in value owed to the husband for community movables after deducting the two automobiles and $750 in gifts to Mrs. Lowe from the listed personal property in possession of the two parties. This item appears essentially correct and we affirm it.

Bell System Savings Plan. Mr. Lowe argues that Mrs. Lowe’s share is one-half of $1,312.88 rather than $1,777.72, the figure assigned by the notary. The higher figure resulted from an agreement between the parties to add interest accrued from the date of the inventory to March 9, 1980. Mr. Lowe argues that because he paid community debts with money he would have deposited in the account to earn interest, he is entitled to credit for the accrued interest as an offset. There is no authority for his position and testimony of the notary indicates that the parties stipulated to the higher figure. Accordingly, we find no error in the judge’s ruling on this item.

Repayment of Loan to Grace Lowe. Mr. and Mrs. Lowe borrowed $2500 from his mother, Grace Lowe, for the purchase of their house. Mr. Lowe testified that he had paid the balance of the loan, $1800, after the petition for separation was filed, but did not produce a check or receipt in court. The court accepted Mrs. Lowe’s testimony that two months after filing the petition she had paid $700 in cash toward the loan to her ex-mother-in-law. She produced a receipt that stated:

“I received $700 from Patricia Lowe, October ’77, as payment on the loan.”

Thereupon the court reduced the credit to Mr. Lowe to $1,100. Mr. Lowe complains that the receipt, which was not dated or authenticated in any way, is insufficient proof of Mrs. Lowe’s payment. As the issue was a credibility call, we find no abuse of discretion in the trial judge’s ruling as to this item and affirm.

Claim of Husband Against Wife

The judgment states that:

“... as a result of the findings of fact prepared by the notary and the agreement of the parties, Claude Lowe’s claim against Patricia Lowe in the amount of $1,897.79 is approved_”

We have been unable to determine from the record what this amount represented. Mrs. Lowe appeals the award, arguing that the money is due to her rather than to Mr. Lowe. The wife’s counsel refers to the credits allowed in the Notary’s “Findings of Facts,” but the calculations of credits do not come close to the figure $1,897.79. It is possible that the award to Mr. Lowe represented his claim against Mrs. Lowe’s separate estate for reimbursement of a federal tax lien of $1,852.80, plus accrued interest. Accordingly, this portion of the judgment requires clarification.

For the reasons stated above, the following disposition of the case is ordered:

1. We affirm the notary’s fee of $7,500 and the appraisers’ fees of ½ of 1% each of the gross community inventory of $162,-060.61.

2. We affirm the accounting of the following items of the partition disputed by Claude Lowe: a) the credit to Claude Lowe of $500 for community movables; b) the valuation of the Bell System Savings Plan; and c) the credit of $700 to Patricia Crocker Lowe for the loan repayment to Grace Lowe.

3. We amend that portion of the judgment related to valuation of Mrs. Lowe’s interest in Mr. Lowe’s retirement plan to conform with the holding of Sims v. Sims, supra, as follows:

It is Ordered, Adjudged and Decreed that there be judgment in favor of Patricia Crocker Lowe and against Claude W. Lowe to the effect that her interest in the retirement plan administered by the Bell System Pension Plan shall be calculated, at the time the benefits become due and payable, according to the following formula:

Portion of pension attributable to creditable service during existence of community (17.2 years)
_X 1/2 X annuity or
Pension attributable to total lump-sum payment creditable service

4. We reverse that portion of the judgment denying and dismissing Mr. Lowe’s claim for reimbursement of mortgage payments made between August 29, 1977 and September 16, 1982 and award reimbursement to Mr. Lowe against the community assets in the amount by which the mortgage payments made between August 29, 1977 and September 16, 1982 reduced the principal debt, and we remand for calculation of same.

5. We remand for the purpose of clarification of the accounting in respect to Mr. Lowe’s claim against Mrs. Lowe of $1,897.79.

AFFIRMED IN PART, AMENDED IN PART, REVERSED IN PART, AND REMANDED.


author: CURRAULT, Judge.

text:
    STATE of Louisiana v. Philip W. LANDRY.
    No. 84-KA-221.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.
    Writ Denied March 15, 1985.

      John M. Mamoulides, Dist. Atty., Dorothy A. Pendergast, Louise Korns, Asst. Dist. Attys., Gretna, for plaintiff-appellee.
    Mark McTernan, McTernan, Parr & Ru-mage, New Orleans, for defendant-appellant.
    Before CURRAULT, GAUDIN and DU-FRESNE, JJ.
   CURRAULT, Judge.

Philip W. Landry was charged in a Jefferson Parish complaint-affidavit with operating a motor vehicle while intoxicated and reckless operation of a motor vehicle in violation of LSA-R.S. 14:98 and 14:99, respectively. On September 27, 1983, after being apprised of his right to be represented by an attorney, retained or appointed, Landry executed a written waiver of that right. On January 6, 1984, Landry was tried before the Honorable J. Robert Ho-epffner, Judge, First Parish Court, and found guilty as charged. Landry was immediately fined Three Hundred Dollars ($300) plus costs and sentenced to six months in jail. The jail term was suspended and Landry was placed on two years probation subject to special conditions. Subsequent to sentencing, the State dismissed the reckless operation charge.

Landry thereafter retained counsel and on March 2, 1984, a Fifth Circuit Court panel granted his application for a writ of review.

It is from the above conviction and sentence that Landry seeks relief on review, asserting the following questions (assignments of error):

(1) Was the defendant entitled to a trial by jury?;

(2) Did the court err in failing to advise the defendant of his right to a trial by jury?;

(3) Did the defendant waive his right to a trial by jury?;

(4) Are Article I, Section 17 of the Louisiana Constitution of 1974 and Code of Criminal Procedure Article 493.1 unconstitutional?; and

(5) Was the defendant’s conviction based upon evidence which viewed in a light most favorable to the state still failed to meet the prosecutor’s burden of proof?

The central theme of' assignments of error numbers 1 through 4 is that the defendant was entitled to a trial by jury and that Article I, § 17 of the Louisiana Constitution and LSA-C.Cr.P. Article 779, which requires that cases such as the present one be tried by court alone, are unconstitutional. In order to properly determine the merits of errors numbers 1 through 3, we must first decide error number 4. However, we do not find it necessary to directly pass upon error number 4, namely the constitutionality of LSA-Constitution Article I, Section 17 and LSA-C. Cr.P. Article 493.1 as applied to driving while intoxicated prosecution, since such articles are presumed constitutional and have indeed been held constitutional and defendant failed, in the trial court, to either raise the issue of their constitutionality or traverse the presumption they enjoy. LSA-R.S. 14:3; State v. Pickering, 432 So.2d 1067 (La.App. 3d Cir.1983); State v. Johnson, 458 So.2d 1301, (La.1984); State v. Hynes, 458 So.2d 1303 (La.1984). See also State v. Odell, 458 So.2d 1304 (La.' 1984); State v. McCarroll, 337 So.2d 475 (La.1976); State v. Vieto, 453 So.2d 259 (La.App. 5th Cir.1984).

We now turn our attention to the question of whether or not defendant was entitled to a jury trial. However, in order to reach that question, we must first pass upon, as error patent, the sufficiency of the bills of information that defendant was charged by and their joinder.

Articles 464 and 384 of the Code of Criminal Procedure state that the information must be a plain, concise and definite written statement of the essential facts constituting the offense charged and that such written accusation of the crime be made and signed by the district attorney.

Defendant was charged in the First Parish Court, Parish of Jefferson, with two complaint-affidavits that were utilized as bills of information. A stamp, charging defendant and carrying the district attorney’s signature, was placed on the back of each citation. While there may be some question as to the sufficiency of the district attorney’s signature, we note that no objection as to the signature or adequate notice was ever raised prior to or at the time of trial.

Where the sufficiency of an indictment or information is not challenged either prior to or at trial, the pleading must be held sufficient unless it is so defective that it does not, by any reasonable construction, set forth an identifiable offense against the laws of this state, and inform the defendant of the statutory bases of the offense. State v. Storms, 406 So.2d 135 (La.1981). Even where the prosecutor’s signature has been omitted from an otherwise fully sufficient bill of information, apprising defendant of the nature and cause of the accusation against him, such error, in light of active prosecution, does not merit reversal. State v. White, 404 So.2d 1202 (La.1981).

Since there were no objections and the matter was actively prosecuted, we consider these stamped complaint-affidavits sufficient to apprise defendant of the charges against him and accordingly find them valid bills of information. LSA-Const. Art. 1, § 13. If there were any doubts concerning the authenticity of these prosecutorial instruments, those doubts were unquestionably removed by the district attorney’s active prosecution of this case.

We have determined the prosecutorial instruments to be valid bills of information. Now, for resolution of whether defendant was entitled to a jury trial, we must consider the propriety of their joinder.

LSA-C.Cr.P. Article 493.1 provides that when two or more misdemeanors are joined in the same indictment or information limiting the maximum aggregate sentencing exposure, there is no corresponding right to trial by jury. However, where two or more misdemeanors have been informally joined in a “case”, each representing a single bill of information, the maximum aggregate sentencing exposure is not limited and defendant would enjoy the right to a jury trial. State v. Johnson, supra; State v. Odell, supra.

We note that the stamped complaint-affidavits were filed simultaneously under a single docket number, presented as one information at arraignment and trial and were, at all pertinent times throughout this matter, considered and treated as one information by both the court and the district attorney. In light of the prior treatment of the complaint-affidavits, we find they were properly joined so as to constitute separate counts of a single bill of information, joined as per LSA-C.Cr.P. Articles 493 and 493.1; therefore limiting the defendant’s sentencing exposure to six months and/or a Five Hundred Dollar ($500) fine. Accordingly, defendant was not entitled to a jury trial.

We now turn our attention to defendant’s contention that the state failed to carry its burden of proof, beyond a reasonable doubt, that he was driving while intoxicated in violation of LSA-R.S. 14:98. Defendant argues that the circumstantial evidence offered by the state was insufficient to support a conviction of driving while intoxicated under the standards set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and LSA-R.S. 15:438.

The Jackson standard of review for sufficiency of the evidence, adopted by our courts in State v. Byrd, 385 So.2d 248 (La.1980), is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. See State v. Sutton, 436 So.2d 471 (La.1983) and State v. Boelyn, 432 So.2d 260 (La.1983).

LSA-R.S. 15:438 provides as follows:

The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.

The following passage from State v. Wright, 445 So.2d 1198, 1201 (La.1984) explains how Jackson and LSA-R.S. 15:438 apply to a case:

This Court has recognized that R.S. 15:438 is not a purely separate test from the Jackson standard to be applied instead of a sufficiency of the evidence test whenever circumstantial evidence forms the basis for the conviction. State v. Austin, 399 So.2d 158 (La.1981). Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. Due process requires no greater burden. R.S. 15:438 provides an evidentiary guideline for the jury when considering circumstantial evidence and facilitates appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. Exclusion of every reasonable hypothesis of innocence is therefore a component of the more comprehensive reasonable doubt standard, where circumstantial evidence is used to convict. As we stated in State v. Chism, 436 So.2d 464 (La.1983). La.R.S. 15:438 “may not establish a stricter standard of review than the more general reasonable juror’s reasonable doubt formula, [but] it emphasises the need for careful observance of the usual standard, and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence.”

The defendant was convicted of operating a motor vehicle while intoxicated in violation of LSA-R.S. 14:98. The pertinent section of LSA-R.S. 14:98 as in effect at the time of the incident provided:

“A. The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, vessel or other means of conveyance while under the influence of alcoholic beverages, narcotic drugs, central nervous system stimulants, hallucinogenic drugs or barbiturates.”

In order to convict an accused of driving while intoxicated, the state need only prove (1) that defendant was operating a vehicle or other conveyance; and (2) that defendant was under the influence of alcoholic beverages or some type of drug. State v. Fontenot, 408 So.2d 919 (La.1982).

Of course, the state also has the omnipresent burden of proving beyond a reasonable doubt that the offense occurred in the parish where the prosecution was held. La.Const. Art. 1, Section 16 (1974); LSA-C. Cr.P. art. 611; State v. Harvill, 403 So.2d 706 (La.1981); State v. Skipper, 387 So.2d 592 (La.1980).

In the instant case, it is conceded by the defendant that he was operating a motor vehicle when stopped by Deputy Charles Bazile. The defendant contends that the state did not meet its burden of proving that (1) the defendant was operating his vehicle in Jefferson Parish; and that (2) the defendant was intoxicated while operating his vehicle.

The state apparently attempted to show that the offense occurred in Jefferson Parish by offering the testimony of Deputy Bazile. Deputy Bazile testified that, while on routine patrol, he observed the defendant in the 4200 block of Veterans Boulevard and stopped him in the 3800 block. Although Deputy Bazile did not identify that section of Veterans Boulevard as being within Jefferson Parish, the defendant testified he had just left the Triple Play Lounge, which we note to be at 4417 Veterans Boulevard. As Clearview Shopping Center is located at 4436 Veterans Boulevard and Lakeside Shopping Center is at 3301 Veterans Boulevard, we take judicial notice that the 3800 block of Veterans Boulevard is deep in the heart of Jefferson Parish. State v. Harvill, supra; State v. Skipper, supra.

On September 13, 1983, Deputy Bazile of the Jefferson Parish Sheriffs office was on routine patrol when he observed the defendant’s vehicle swerving from the left to center lane and back again several times between the 4200 and 3800 blocks of Veterans Boulevard. After directing the defendant to pull his vehicle to the side of the road, Deputy Bazile determined that the possibility existed that the defendant was intoxicated. Deputy Bazile then twice asked the defendant to submit to a field sobriety test, explaining what the test encompassed and the possible consequences of refusing to take it. After the defendant repeatedly refused to submit to the test, Deputy Bazile placed him under arrest for reckless operation and driving while intoxicated.

Because the defendant refused to submit to field sobriety or breath analysis tests, the only evidence of intoxication offered by the state was the testimony of Deputy Ba-zile. Accordingly the perceived weakness in the prosecution’s case is that there is no scientific evidence of intoxication.

However, when enacting LSA-R.S. 32:661 et seq., the legislature did not intend that this procedure be the exclusive evidence of intoxication. LSA-R.S. 32:662 C states:

The foregoing provisions of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether the person was under the influence of alcoholic beverages.

The Supreme Court has held that intoxication, with its attendant behavioral manifestations, is an observable condition about which a witness may testify. State v. Allen, 440 So.2d 1330 (La.1983); State v. Spence, 418 So.2d 583 (La.1982); State v. Badon, 401 So.2d 1178 (La.1981). However, the Supreme Court has not indicated what type of behavioral manifestations, independent of any scientific testing, will be sufficient evidence to support a charge of driving while intoxicated.

Deputy Bazile offered the following testimony in regards to the events leading to the defendant’s arrest:

Q. What were the circumstances that lead you to issue that citation? [D.W.I.]
A. Ahm ... I was on routine patrol, driving east bound on Veterans, when I observed Mr. Landry’s car swerving from the left lane to the center lane. After maybe a block, I pulled him over and when I asked him for a drivers license, he became very uncooperative and arrogant towards me, and he, he appeared he wouldn’t step away from his vehicle. He kept holding on to his door and leaning on his car, and I then attempted to give him a field sobriety test; which he completely refused and just became more arrogant. I then asked him, if he had been drinking at all and he said, yes he was. He was drinking at the Triple Play Lounge. So after several times of asking him to take the sobriety test, I then placed him under arrest for reckless operation and d.w.i.
Q. Approximately what part? [of Veterans Boulevard]
A. Ah ... it would be, when I first observed him, it was the fourty (sic) two hundred block and I finally, when I pulled him over, it was approximately the thirty eight hundred block.
A. Ok. You testified that you saw him going from lane to lane, for approximately what period of time? Did you observe him do that or what distance?
A. At least two or three street blocks. He was, it wasn’t like he was doing it one time. It was several times.
Q. Ok. He refused to cooperate in any test?
A. Very much so. He also refused to give me his drivers license at first.
Q. Ok. Did ah ... despite his refusal to cooperate with the field sobriety test, were you able to observe his demeanor when you stopped him?
A. Yes sir.
Q. Ah ... how would he characterize his balance and the way he walked?
A. Well he was staggering several times and he kept wanting to lean on his car, when I tried to get him away from his car. He wouldn’t, he refused and he, you know anything that I asked, he kept refusing it.
Q. Did you have occasion to notice his speech?
A. Yes sir. His speech was definitely slurred. He wasn’t talking in a normal since, (sic)
Q. Did you at any time observe the smell of alcoholic beverage on his breath?
A. Yes I did. When I first asked him to step out of his car and asked him for his drivers license.
Q. When you ah ... asked him to ah ... complete ah ... a breath test, did you give him his rights in regard to that?
A. Yes, I did. I read it off the paper in the. (sic)
Q. How long have you been on the force?
A. Since August of eighty one.
Q. Have you had ah ... occasion prior to this to make arrest for d.w.i.?
A. Yes sir I have.
Q. You had occasion to observe the people who you arrested for d.w.i.?
A. Yes sir.
Q. Would Mr. Landry have been able to safely operate his vehicle on a road, after the point at which you stopped him?
A. I didn’t feel he could. As my opinion as being a policeman, I feel he couldn’t.

The defendant’s wife testified on his behalf, stating that the defendant left their home at 10:00 p.m. on the night in question and was absent for approximately one hour when the police called and informed her of the defendant’s arrest. She further testified that the defendant never drank at home, and, as far as she knew, had not been drinking at home that night before going out.

The defendant testified as follows: He went to the Triple Play Lounge to meet with a man to discuss a job. The meeting fell through and, on his way out, the defendant met a friend. The defendant had two drinks with his friend and then headed home. He was stopped by the police and cooperated with them except when asked to take the breath test because “... I feared that having two drinks in a short period of time. I didn’t know how the breath test, the breath test would register.” Defendant denied that he was weaving from lane to lane.

There were marked similarities between the physical traits elicited by a field sobriety test and the physical traits exhibited by the defendant while under the observation of Deputy Bazile. Field sobriety tests gauge a subject’s responses according to the performance of certain physical tasks: walking in a straight line; standing on one foot; touching a finger to the point of the nose, speaking distinctly in a coherent manner. The test was apparently developed to provide “objective” criteria on which an officer could base his belief that a subject was intoxicated. It should be noted that an officer’s “subjective” opinion determines whether a suspect has passed the “objective” field sobriety test. Failure to pass a field sobriety test has long been held sufficient evidence to support a conviction of driving while intoxicated. State v. Allen, supra; State v. Badon, supra; State v. Cichirillo, 440 So.2d 934 (La.App. 2d Cir. 1983).

In the instant case, Officer Bazile’s objective observations were that the defendant was staggering, leaning on his car for support, slurring his speech, and had the odor of alcohol. While the observations were not made during the course of a “subjective” field sobriety test, the same physical traits would have manifested themselves had the defendant attempted to perform the test. It is implausible to hold that, because the defendant refused to submit to a field sobriety test, his exhibition of the same physical traits which the field sobriety test was designed to uncover were insufficient to support a driving while intoxicated conviction. See also State v. Chestnut, 462 So.2d 674 (La.App. 4th Cir.1984.)

Error Patent

Do the provisions of LSA-C.Cr.P. Article 873 apply to misdemeanor convictions?

The defendant was tried, convicted and sentenced within a short period of time on January 6, 1983. The legislature has established minimum delay periods between conviction and sentence. The Louisiana Code of Criminal Procedure provides as follows:

Art. 873 — If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

Official Revision Comment (e) states that the delay requirement is limited to felony cases, as the need for the mandatory delay in order to file motions to set aside the conviction is only of significance in felony cases.

In the instant case, it is certain that the defendant, after conviction of a misdemean- or, was not entitled to a three-day delay before sentencing. LSA-C.Cr.P. Article 873 states that a defendant convicted of a felony has the right to a three-day delay.

As defendant failed to file either a motion for a new trial or an arrest of judgment, we need not consider whether a 24-hour delay is applicable in misdemeanor cases.

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

AFFIRMED.

      . The conditions were as set forth in LSA-R.S. 14:98 B (2), as in effect at the time of the offense.

      . Upon arrival at police lockup, the defendant was asked to submit to a breath analysis test. Despite being warned again of the consequences, the defendant also refused to submit to this test.

      . See State v. Gregory, 403 So.2d 1225 (La.1981); State v. Morrison, 392 So.2d 1037 (La.1980). Although the Supreme Court reversed these DWI convictions, they did so due to the prejudicial effect of PEI results later thrown out. Accordingly, the Supreme Court did not pass on the sufficiency of the trooper’s testimony.

      . The defendant testified he was drinking V.O. and coke.


author: DOUCET, Judge. STOKER, Judge, LABORDE, Judge,

text:
    James ROMERO, Plaintiff-Appellee, v. Deanna Duhon ROMERO, Defendant-Appellant.
    No. 83-1091.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 16, 1985.
    Writ Denied March 22, 1985.

      Kenneth W. Cole, Lafayette, for defendant-appellant.
    Norman L. Williams, Lake Charles, for plaintiff-appellee.
    Before GUIDRY, STOKER, DOUCET, LABORDE and YELVERTON, JJ.
   DOUCET, Judge.

This appeal arises from a rule brought by James Romero, to rescind alimony, for child support, and for one-half of all medical and hospitalization expenses.

After a hearing, the trial court rendered a judgment reducing the amount of alimony from $500 per month to $350 per month. The trial court refused to award child support and one-half of medical and hospitalization expenses. Mrs. Romero appeals only from that part of the decision reducing the alimony award.

James Romero and Deanna Duhon Romero were married on May 26, 1961. Three children were born of the marriage. In 1982, the ages of the children ranged from 17 to eight years of age. The oldest child had been emancipated by marriage. On July 9, 1982 James Romero filed a petition for divorce based on one year living separate and apart. A consent judgment was entered pendente lite, granting the care, custody, and control of the two minor children and the use of the family home to James Romero. The consent judgment also granted alimony pendente lite of $500 per month to Deanna Romero, with the same sum to be paid as permanent alimony after the divorce.

On September 15, 1983 a judgment of divorce was entered including the provisions of the earlier judgment. A community property settlement agreement was entered at that time. Mrs. Romero’s share of the community included certain household furnishings, an undivided one-half interest in the family home, and one-half of a community bank account amounting to $3,000.00. Further, she exchanged her interest in all retirement benefits of James Romero for $7,626.00 in cash, which was to be paid upon the sale of the family home.

In March 1983 the home was sold. Mrs. Romero received about $35,000 from the sale. This brought the cash portion of Mrs. Romero’s half of the community property to approximately $45,000. Out of this amount she bought a mobile home for $14,-000, a lot on which to put it for $7,000 and a 1981 Cadillac Eldorado for $14,000. At the trial on the alimony rule, Mrs. Romero testified that approximately another $5,000 was spent on miscellaneous items, leaving a balance of $5,000 in the bank. Mrs. Romero has no income other than the alimony payments.

After taking evidence about the circumstances of each party, the trial court reduced the award of permanent alimony to $350.00 per month. Mrs. Romero appeals this decision alleging that there was not a sufficient change of circumstance on the part of either party to justify a reduction in alimony.

La.C.C. art. 160 sets out the circumstances in which permanent alimony may be granted and the factors to be considered in setting the award:

“When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capacity, in light of all other circumstances.
This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries or enters into open concubinage.”

This court in Cromwell v. Cromwell, 419 So.2d 974 (La.App. 3rd Cir.1982) stated with regard to the last sentence of La.C.C. art. 160 that:

“Jurisprudence interpreting this portion of Article 160 consistently holds that for a court to alter an alimony award, including one established by a consent judgment, the party seeking modification must show a change in circumstances of either party from the time of the award to the time of the trial of the alimony rule. Bernhardt v. Bernhardt, 283 So.2d 226 ([La.]1973); Fisher v. Fisher, 320 So.2d 326 (La.App. 3rd Cir.1975); Swider v. Swider, 314 So.2d 372 (La.App. 4th Cir.1975); cert, denied, 320 So.2d 551 (1975).”

It was shown at trial that Mrs. Romero received $45,000 after the sale of the family home in fulfillment of the community property settlement agreed upon by the parties at the time of the divorce.

The conversion of an asset in the form of community property interest, into another form is not in and of itself a change of circumstances. In O’Brien v. O’Brien, 308 So.2d 333 (La.App. 1st Cir. 1975) writ denied 311 So.2d 262, the wife had not only converted her community property interest into cash but was earning substantial interest on the proceeds. The court stated that:

“Under the doctrine of the Bernhardt, [supra] and Bazzell [v. Bazzell, 289 So.2d 202 (La.App. 1st Cir.1973)] cases, had the defendant herein not converted the property received in the community property settlement prior to the divorce suit into cash there could be no reduction in alimony. Had she converted it into cash and not put it at interest there could be no reduction. We feel that to reduce the alimony payments because of the interest income would be contrary to law since there is no real change in her circumstances, particularly during such times of inflation as we now have before us. By investing the money at interest she is merely attempting to protect the property freely conveyed to her for due consideration by her late husband from depreciation. She was merely selling a large estate which, due to the family difficulties, was no longer necessary and purchasing a modest estate to be occupied by herself and her children. To punish her for this prudent handling of her affairs would be unjust.”

While Mrs. Romero may not have been as prudent in her handling of her finances, she has provided herself with a home, and relieved herself of the burden of rent.

Since the O’Brien decision was rendered, La.C.C. art. 160 has been amended to include liquidity of assets among the factors to be considered in determining entitlement to and amount of alimony.

“While the statute directs that liquidity be considered by the court in determining whether a modification of alimony may be warranted, the court is not limited in considering and weighing all relevant factors and circumstances of the individual case. In some circumstances, liquidity alone may be controlling, while in others it may not.” Davis v. Davis, 445 So.2d 121 (La.App. 2nd Cir.1984).

At the time of the trial on the alimony rule, Mrs. Romero had approximately $5,000 in her bank account. The rest of the community property settlement had been again converted into non-liquid form.

Mr. Romero also alleges that his circumstances have changed for the worse due to his remarriage. Expenses of a subsequent marriage should be taken into account in determining the amount of alimony to be paid. However, these expenses cannot negate the obligation to support a former spouse. Sonfield v. Deluca, 385 So.2d 232 (La.1980). Testimony at the trial on the alimony rule did reveal an increase in expenses. Mr. Romero is now helping to support his wife’s two children from a previous marriage. His second child, who is now over 18, has started college at the University of Southwestern Louisiana. However, these new expenses are offset by Mrs. Romero’s income from her work and child support payments from her former spouse. Mr. Romero has also experienced increased liquidity after the sale of his family home. He has $15,000 in a certificate of deposit and approximately $4,000 in his checking account remaining from the community property settlement.

It appears that any change for the better in the former Mrs. Romero’s circumstances is balanced by an approximately equal change in Mr. Romero’s circumstances.

We reverse the ruling of the trial court and restore the award of alimony in the amount of $500.00 per month.

REVERSED.

STOKER, J., dissents and assigns written reasons therefore.

LABORDE, J., dissents and assigns written reasons.

STOKER, Judge,

dissenting.

I respectfully dissent. Our appellate function requires that we determine whether or not the trial court was clearly wrong in its findings or abused its discretion. The majority correctly states the law applicable. However, the majority makes a finding of fact that there were no changed circumstances justifying the trial court’s reduction of alimony. In reviewing the facts it appears to me that there are changes to some extent at least in Mr. Romero’s circumstances if not Mrs. Romero’s circumstances. I do not believe that the changes are so insubstantial that we can say that the trial court was clearly wrong or abused its discretion. I would affirm.

LABORDE, Judge,

dissenting.

I respectfully dissent from the majority opinion.

James Romero, plaintiff-in-rule, and Deanna Romero, defendant-in-rule, were divorced in 1982. The divorce was uncontested and fault is not an issue. The parties stipulated by agreement that James would have sole custody and care of the two minor children of the marriage, and that James would pay Deanna $500 per month permanent alimony.

On July 6, 1983, James filed a rule to rescind alimony and for child support and children’s medical expenses from Deanna. On August 29, 1983, the rule was heard by district judge Ronald Cox. The judge took the matter under advisement. On August 81, 1983, he decided that Deanna should not pay any portion of the children’s support and medical expenses. However, the judge found a change in circumstances warranting a reduction in permanent alimony from $500 per month to $350 per month.

Deanna has appealed. She argues that there has been no change in circumstances sufficient to warrant a reduction in alimony. There is no other issue before this court.

The majority reverses the trial court, and reinstates $500 per month as the permanent alimony amount to be paid by James to Deanna. The majority sets forth Civil Code Article 160 as the controlling provision for awards of permanent alimony, and notes that the jurisprudence has consistently held that alteration of a previously adjudged amount of permanent alimony requires “a change in circumstances of either party from the time of the award to the time of the trial of the alimony rule.” The majority also notes that the burden of proving such a change is on the party seeking modification.

The majority focuses upon changes in the parties’ financial status since divorce resulting from the use each has made of partitioned community property. Specifically, the majority discusses James’ contention that Deanna’s use of her half of the proceeds from the sale of the family home to buy a house trailer, a lot, a Cadillac Eldorado, and to open a checking account of about $5,000, indicates that Deanna has sufficient liquid assets so that alimony is unnecessary under article 160. The majority notes that the jurisprudence does not treat a conversion of assets into another form as per se a change in circumstances warranting a modification of alimony. Further, it is noted that although liquidity is an express consideration under article 160, it is but one factor, and it should not control this case. The majority concludes that “any change for the better in [Deanna’s] circumstances is balanced by an approximately equal change in [James’] circumstances.”

APPLICABLE LAW

The majority opinion correctly applies the “changed circumstances” test under article 160 to this case. However, the legal test should have been applied only in a review of the ruling by the trial court; the majority, in effect, tries the case from scratch on selected portions of the record.

Just as the article 160 test applies to this case, so does the rule that findings of fact in the trial court will not be altered on appeal unless the findings are manifestly erroneous, in light of the record as a whole. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978). In a domestic relations context, this standard of deference, applied to a fact-finding trial judge, is expressed as examining the factual findings which warrant a “changed circumstances” ruling, and the actual alteration (if any) of alimony payments, to ascertain whether the trial judge has abused his wide discretion over such matters. See, e.g., Jordan v. Jordan, 406 So.2d 322, 324 (La.App. 3d Cir.1981). Put simply, our review has two stages: (1) whether the trial judge reached a supportable factual determination and (2) whether the proper legal test was correctly applied to that factual determination. Here, the question unanswered by the majority opinion is whether the trial judge’s findings are supported by the record. Of course, a fortiori, the test of “changed circumstances” must be applied to those findings.

The trial judge in this case did not bless us with written reasons for his decision. The judgment simply states that he considered all the law and evidence in reaching his decision. With this background, our duty as a reviewing court is to ascertain whether, under the appropriate “changed circumstances” legal standard, the record taken as a whole supports the trial judge’s decision. In this case, the trial judge necessarily decided that certain witnesses and . certain portions of testimony were credible, and that other witnesses and portions of testimony were not credible. Thus, in reviewing the record as a whole, this court must keep in mind that the trial judge simply may not have believed that certain factual conditions testified to by one or more witnesses existed, particularly when the testimony of one witness directly contradicts that of another. In light of the above-discussed legal principles, the record in this case will now be examined.

DISCUSSION OF THE CASE

The majority correctly concludes that the conversion of Deanna’s community property into cash and other more liquid assets does not, alone, mandate a reduction in alimony. However, other factual issues also tend to show changed circumstances.

James, at the time of the trial of the rule (which, it is submitted, is the latest pertinent time), faced increased expenses because his seventeen year old daughter (also Deanna’s daughter) was entering her first year of college at USL. James had also • remarried, but the costs entailed by this are negligible and of little legal consequence in any event, as explained by the majority. James was encountering increased expenses for both minor children of his marriage to Deanna. Because of his new family (second wife plus two step-children), James had space problems in his home, and had to acquire a mobile home for two of the children. James’ salary as Lafayette Police Chief increased only slightly subsequent to the divorce and before trial of the rule; the increase was his cost-of-living raise.

Deanna moved into her trailer home in Breaux Bridge after the divorce. She claims to have problems with finances, yet, as discussed below, she apparently has sufficient funds for a quite active social life.

Deanna has a high school education, but a paltry employment history. She was, by and large, a housewife while married to James. Deanna claims that back, neck, and headache problems prevent her from taking any job that requires standing, sitting, stooping, walking, reaching, or bending. She testified that such activities tire her immensely, and cause severe pain. She did, however, apply for employment with one florist just after the divorce, but she did not get the job and remains unemployed.

Deanna undisputedly has had back and neck surgery, but the extent of her medical recovery was not established at trial. She claimed to be worse off than ever. Three witnesses, however, testified that they saw her dancing the “jitterbug” often at bars in the Breaux Bridge and Lafayette area. They testified that she did not seem to be in pain or have limited mobility; one witness even complimented her prowess and fluidity on the dance floor. Another witness commented that divorce seemed to have done “wonders” for Deanna’s physical condition and mental disposition. It should be noted that these three witnesses are Lafayette policemen. The record reflects that their jobs are secured by civil service, but common sense dictates that these witnesses could, of course, have been influenced by the fact that they were testifying for the chief of police. In any event, the trial judge apparently believed these three witnesses, and Deanna did not dispute their testimony. The credibility of witnesses is distinctly a matter to be resolved by the trial fact-finder (here, the trial judge).

Deanna testified that about one month before the trial, she fished for four straight days in Lake Henderson, and that she caught about 140 fish. She explained that although physical activity causes her pain, she has to do something every once in a while.

Based on the record, the trial judge could have concluded, and apparently did conclude, that Deanna’s physical condition had improved since the divorce. He reasonably could have concluded that she was now able to support herself to some extent, and that $500 per month alimony was no longer necessary. The trial judge could further have concluded that James’ obligation to support dependent children had grown more onerous. Based on Deanna’s more liquid assets, and her apparent ability to afford a “jitterbugging” lifestyle, the judge could have concluded that her financial circumstances had changed for the better. A reading of article 160 will reveal that all of the above considerations are relevant, plus several more that are apparent from previous discussion. The judge could have found, and did find, that James had proved a change in circumstances warranting a reduction in alimony.

With no opportunity to see and hear the witnesses, and view the evidence firsthand, it is hard to say whether the trial judge’s decision was correct. There is room for argument both ways. However, based on the record as a whole, the trial judge’s decision cannot be said to be manifestly erroneous. Beyond this standard, we should not second guess fact-finding by the trial judge in cases of this nature. The majority chooses to ignore those aspects of the record that support the trial judge’s changed circumstances ruling on the basis of Deanna’s improved physical condition and corresponding increased ability to attain employment. The majority also ignores the increased financial burden faced by James, which is not offset by a mere cost-of-living salary increase. The majority further ignores those portions of the record which indicate that Deanna has a surplus of financial resources in comparison with James, as evidenced by her lifestyle.

The crux of the problem in this case is the trial judge’s failure to indicate in the record, explicitly, his reason or reasons for judgment. Recorded oral or written reasons would leave no doubt as to whom he believed, and which of several possible sets of factual circumstances he found to exist. Possibly, the trial judge based his ruling solely on a “liquidity” assessment, or on his conviction that anyone who owns a Cadillac (albeit used) is not destitute to the point that $500 per month support is necessary for the basic needs of life. This is the hypothetical rationale for the decision of the trial judge that the majority reverses today, and if no other considerations were present, I would join in that reversal. However, it is far more plausible that the decision of the trial judge rests on the resolution of the disputed facts discussed above, which are contained in the record yet overlooked by the majority. By ascribing only legally insufficient factual conclusions to support the trial judge’s legal determination of changed circumstances, the majority sets up a straw man that is easily blown over. Deference to the trial judge’s factual province requires more. Legally sufficient factual conclusions can be drawn from the record and these considerations should at least be acknowledged by the majority.

Under the proper standard of appellate review, we must affirm if the record, taken as a whole, supports the lower court’s decision when the proper legal test is applied. As illustrated above, the record, taken as a whole, with certain disputed evidence resolved in favor of the plaintiff, supports the trial judge’s decision under the “changed circumstances” test. I would affirm the decision of the trial court. Therefore, I respectfully dissent from the opinion issued by the majority.