author: DOUCET, Judge. PER CURIAM.

text:
    Helen H. LAMB, Plaintiff and Appellant-Appellee, v. W.C. LAMB, Defendant and Appellee-Appellant.
    No. 83-897.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    On Rehearing Nov. 26, 1984.
    Writs Denied Jan. 25,1985.

      Bean & Rush, Warren D. Rush, Lafayette, for defendant and appellee-appellant.
    Vance R. Andrus, Caliste Beard, Jr. and J. Michael Artigue, Lafayette, for plaintiff and appellant-appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

This appeal involves a determination of whether the dissolution of the marriage between Helen Lamb, plaintiff-appellee, and W.C. Lamb, defendant-appellant, was caused by the fault of Mrs. Lamb, thereby precluding her from receiving permanent alimony pursuant to La.C.C. Art. 160. The other issue of this appeal is the validity of a pre-marital contract between the parties that waived a community property regime and established separate property regimes for each spouse. These issues arise from the suit for separation from bed and board filed by the plaintiff-appellee and a divorce proceeding instituted by the defendant-appellant. These cases were consolidated for trial, remain so on appeal, and the issues in both cases will be addressed in this opinion, although a separate opinion will be rendered in the companion case, 460 So.2d 641.

The plaintiff and the defendant executed the pre-marital contract on May 21, 1971, and were then married on May 26, 1971. After approximately ten years of marriage, Mrs. Lamb sued for a separation from bed and board on February 10, 1981. Mr. Lamb subsequently filed a petition for absolute divorce on January 18, 1982, pursuant to LSA-R.S. 9:301 on the basis that the parties had been living separate and apart for one year. Mrs. Lamb reconvened seeking to have the pre-marital contract declared without effect because of vices in her consent and non-compliance with the formal requirements for such a contract. Prior to trial, on April 8, 1981, the trial court awarded Mrs. Lamb alimony penden-te lite in the amount of $3,500.00 per month. See 427 So.2d 899 (La.App. 3rd Cir.1983) and 418 So.2d 688 (La.App. 3rd Cir.1982). Mrs. Lamb’s separation suit was consolidated with Mr. Lamb’s petition for a divorce and a trial was subsequently conducted on the matter.

The evidence at the trial was long and exhaustive. A brief summarization is in order. Mrs. Lamb began by attempting to prove that she was not at fault as a reason for the dissolution of the marriage in order to be entitled to permanent alimony. The crux of this line of evidence consisted of the testimony of Mrs. Lamb who testified that she tried very hard to be a good and dutiful wife in all respects. Mrs. Lamb conceded that her behavior was not ideal at all times but that in general she was a good wife. Mrs. Lamb’s daughter corroborated Mrs. Lamb’s version of several incidents that could have been dispositive on the issue of fault. Mr. Lamb sought to rebut this testimony with evidence designed to prove that Mrs. Lamb defamed her husband and treated him cruelly to such an extent that their common life together became insupportable. Several witnesses testified that on several occasions Mrs. Lamb publicly defamed her husband with obscene language causing her husband to be greatly embarrassed. This evidence was also introduced in attempts to prove cruel treatment of Mrs. Lamb by Mr. Lamb. In addition other testimony was heard to prove that Mrs. Lamb constantly verbally abused Mr. Lamb as the principal aspect of cruel treatment by Mrs. Lamb. In particular, the maid corroborated Mr. Lamb’s statement that Mrs. Lamb incessantly argued with Mr. Lamb every morning while he silently endured these alleged tirades.

Another aspect of Mrs. Lamb’s alleged cruel treatment is her neglect of household chores. Both Mrs. Lamb and their maid testified that Mrs. Lamb never cleaned the house and would rarely prepare meals. Mrs. Lamb conceded that she was inept at housework but that this neglect was not a deliberate effort to provoke her husband. Another complaint of Mr. Lamb was that his wife would often begin projects to redesign the interior of the house but would always leave them unfinished giving the house the constant appearance of disrepair.

The last aspect of the alleged cruel treatment was the alleged refusal by Mrs. Lamb to engage in sexual relations with her husband. It is undisputed that the parties rarely if ever engaged in sexual relations during the six to eight month period immediately before Mr. Lamb moved from the matrimonial domicile. Mrs. Lamb testified that sex was not requested while Mr. Lamb testified that his advances were refused.

The other issue litigated at the trial is the validity of the pre-marital contract. The evidence on this issue indicated that Mrs. Lamb was confused, nervous and resentful when it was executed. Mrs. Lamb did not have an attorney present nor did she read the contract. Mrs. Lamb testified that she knew the legal consequences of the contract but thought that its duration was for only a year or two. Mrs. Lamb testified that she was more or less coerced into signing the contract and that she was promised lifetime support as an inducement to sign the contract. Both Mr. Lamb and his attorney, who was the executing notary, deny these last two allegations. Finally, Mrs. Lamb testified that the witnesses were not present when she signed the agreement. In their depositions the witnesses testified that they were in fact present when the contract was executed, thereby satisfying the formal requirements for a valid pre-marital contract.

The trial court rendered a judgment on the consolidated cases. Mr. Lamb was awarded an absolute divorce on the basis of LSA.R.S. 9:301 and Mrs. Lamb’s separation suit was dismissed as being moot. The trial court then concluded that Mrs. Lamb’s argumentative nature was not fault in a sufficient degree to preclude an award of permanent alimony. In its reasons for judgment the court said “Testimony was presented concerning two separate incidents in a hotel lobby in Miami and in a restaurant in Lafayette. Although the testimony indicated that Mrs. Lamb’s deportment and conduct were less than ideal, the evidence falls short of either defamation or cruel treatment.” The trial court also found that the couple’s high financial standing excused Mrs. Lamb’s neglect of household chores because they could afford to regularly dine out and could also afford the services of a maid. With respect to the lack of sexual relations, the trial court concluded that the reason was a mutual abstention rather than a refusal by Mrs. Lamb. The trial court explained that these were the only allegations that could justify a finding of fault and it concluded that these allegations were not sufficiently substantial for such a conclusion and awarded Mrs. Lamb alimony. With respect to the pre-marital contract, the trial court concluded that it was valid in form and that there were no vices of consent that would justify vitiating the agreement.

The issues on this appeal are whether the trial court erred in upholding and enforcing the pre-marital contract. Secondly, whether the trial court was manifestly erroneous in its conclusion that Mrs. Lamb was not guilty of fault sufficient to preclude an award of permanent alimony.

Mrs. Lamb contends that the premarital contract between her husband and herself is invalid because it was executed in the absence of the signed witnesses. The evidence does not support this contention. La.C.C. art. 2331 says that a pre-marital contract must be in authentic form executed before a Notary and two witnesses. Both witnesses to the agreement, Betty O’Conner Billeaud and Louella B. Ranso-net, testified in their depositions that they were present when the instrument was executed. This testimony is corroborated by Mr. Warren Rush who was the executing notary of the contract. The only evidence in the record to contradict this testimony is the testimony by Mrs. Lamb that the witnesses were not present when the contract was actually executed. It should be noted that Mrs. Lamb was confused, nervous and resentful when she signed the agreement and her credibility is effected accordingly. The trial court was satisfied that the witnesses were present when the contract was executed and that all of the other formal requirements were complied with. This factual conclusion is not clearly wrong and should not be disturbed on appeal.

Next, Mrs. Lamb contends that the pre-marital contract is defective because of a vice in her consent. She claims that her consent was given in error because she thought that the term of the contract was only “for a year or two” rather than for the duration of the marriage. La.C.C. art. 1819 says that there is no contract where consent has been obtained by error or fraud. La.C.C. art. 1820 provides that there are two types of error; error in fact and error in law. Error in fact proceeds either from ignorance of that which really exists or the mistaken belief in the evidence of that which has none. La.C.C. art. 1821. But not every error will invalidate a contract but only error as to the principal cause of the contract. When there are several causes then the principal cause is called the motive and means that consideration without which the contract would not have been made. La.C.C. arts. 1823, 1825. Mrs. Lamb contends that her mistaken belief about the duration of the contract is an error in fact concerning the principal cause of the contract and that she would not have contracted had she known otherwise, thereby justifying the vitiations of the pre-mari-tal agreement. This contention is without merit. Mrs. Lamb’s own testimony makes it unquestionably clear that she knew that the pre-marital agreement established separate property regimes. This was the principal cause of the contract because the reason for so contracting was to prevent the operation of Louisiana’s community property law. The term of the contract was not the motive or the principal cause therefore a mistake concerning the term or duration of the contract is not of sufficient consequence to vitiate the contract.

Furthermore, Mrs. Lamb did not read nor request a detailed explanation of the pre-marital agreement. In Louisiana Savings Association v. Trahan, 415 So.2d 592 (La.App. 3rd Cir.1982) this court said that a party may not avoid the provisions of a contract which he signs but fails to read or have explained to him. Mrs. Lamb should have read the proposed agreement and the fact that she was confused and nervous is no excuse. If Mrs. Lamb had serious reservations about the proposed contract, then her recourse was not to sign it. Mrs. Lamb cannot avoid an unpleasant provision of the pre-marital agreement because she failed to read the contract.

In the alternative Mrs. Lamb seeks a share of Mr. Lamb’s estate on the basis of the principle of unjust enrichment and estoppel. The unjust enrichment claim is based on the allegation that Mrs. Lamb contributed to whatever wealth that Mr. Lamb accumulated during the course of the marriage. The only alleged enrichment that could be supported by the evidence is a parcel of property in Mr. Lamb’s estate that Mrs. Lamb chose for a homesite in the future. Mr. Lamb purchased the property with his funds. This one allegation hardly constitutes the type of enrichment contemplated by the theory of unjust enrichment. Scott Truck and Tractor Company of Alexandria v. Daigre, 346 So.2d 1297 (La.App. 3rd Cir.1977). The contention that Mr. Lamb acquired wealth at Mrs. Lamb’s expense is without merit.

Mrs. Lamb’s estoppel argument is also without merit. There are three elements to estoppel: (1) A representation by conduct or word; (2) Justifiable reliance; and (3) A change in one’s position to one’s detriment. Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975). The representation alleged by Mrs. Lamb is that Mr. Lamb promised to forever provide for her as an inducement to sign the pre-enacted contract. Mr. Lamb denies making this promise except to the extent that he would provide for Mrs. Lamb while she remained his wife. The trial court apparently concluded that no such representation was made as Mrs. Lamb described it. Then, the first element of the estoppel claim is unsatisfied. Furthermore, Mrs. Lamb was not justified in relying on what she believed was a promise by Mr. Lamb to provide for her regardless of their marital status. Such a proposition defies reason and no reasonable person would justifiably rely on such a promise for his well being. Finally, there is no evidence on the precise detriment incurred by Mrs. Lamb when she relied on the alleged promise. Estoppels are not favored in our law. Rodden v. Davis, 293 So.2d 578 (La.App. 3rd Cir. 1974). Therefore all estoppel claims must be examined carefully and strictly. A careful and strict examination of this estoppel claim reveals that Mrs. Lamb did not sustain the heavy burden of proving all of the elements of an estoppel claim.

The trial court was correct in its judgment to uphold and enforce the pre-marital contract thereby precluding the evidence of a community property regime of the parties. This part of the trial court’s judgment is affirmed. The remaining issue to be addressed is whether the trial court was correct in holding that Mrs. Lamb is entitled permanent alimony pursuant to La. C.C. art. 160.

The sole basis for this divorce action was pursuant to LSA-R.S. 9:301 which authorizes the granting of an absolute divorce if the parties have been living separate and apart for one year prior to the institution of the suit. Fault by either party is not an issue in this type of divorce. However, when one party seeks permanent alimony pursuant to La.C.C. art. 160 then fault becomes an issue but only in the determination of whether the party seeking alimony is so entitled. In order to be entitled to permanent alimony, the party who is seeking the alimony has the burden of proving that he or she is without fault in causing the dissolution of the marriage and also that he or she is in necessitous circumstances and in need of support. La.C.C. art. 160, Schexnayder v. Schexnayder, 424 So.2d 516 (La.App. 5th Cir.1982); Silas v. Silas, 399 So.2d 779 (La.App. 3rd Cir.1981). Therefore Mrs. Lamb had the burden of proving that she was free from fault and that she was in legitimate need of financial support.

The appellant argues that the trial court was clearly wrong in its factual conclusion that Mrs. Lamb met her burden of proving that she was not at fault in a sufficient degree that would preclude her from receiving alimony. In support of this argument the appellant contends that Mrs. Lamb’s conduct during the marriage constitutes cruel treatment in three respects. First, Mr. Lamb contends that Mrs. Lamb’s verbal abuse of her husband constitutes cruel treatment. Second, the appellant argues that the neglect of household chores by Mrs. Lamb constitutes cruel treatment. The last aspect of cruel treatment alleged by Mr. Lamb is Mrs. Lamb’s refusal of sexual relations. Another type of fault on Mrs. Lamb’s part argued by Mr. Lamb is that his wife defamed him.

All of these contentions are grounds for fault that would preclude an award of permanent alimony pursuant to La.C.C. art. 160. The grounds for separation enumerated in La.C.C. art. 138 are the criteria to be used in determining whether a spouse is at fault for the purpose of determining whether he or she is entitled to permanent alimony pursuant to La.C.C. art. 160. Adams v. Adams, 389 So.2d 381 (La.1981). The grounds found in La.C.C. art. 138 that are at issue in this case are defamation and cruel treatment that renders the common life insupportable.

With respect to defamation it is necessary to prove that the false charge was not made in good faith and publicly to a person to whom the accuser has no legitimate excuse to talk about the subject of the accusation. Watson v. Watson, 209 So.2d 528 (La.App. 2nd Cir.1968). In the case at bar no particular accusation was alleged but merely a series of insults made publicly. The trial court was correct in concluding that the evidence fell short of establishing defamation.

In order for cruel treatment to be considered fault it must render the common life together insupportable. La.C.C. art. 138; La.C.C. art. 160. Furthermore, this fault must be an independent and proximate cause of the dissolution of the marriage. A wife is not deprived of alimony simply because she was not totally blameless in the marital discord. Harrington v. Campbell, 413 So.2d 297 (La.App. 3rd Cir. 1982). The issue of fault in the dissolution of a marriage is factual and the trial court’s resolution of this issue will not be disturbed unless it is clearly wrong. Pearce v. Pearce, 348 So.2d 75 (La.1975). After reviewing the record we find that although Mrs. Lamb’s conduct was not ideal, her conduct was not fault to a sufficient degree that rendered the parties’ common life together insupportable.

Verbal abuse can constitute cruel treatment if it is particularly vicious and persistent to the extent that it renders the common life insupportable. However, mutual incompatibility, fussing and bickering cannot constitute cruel treatment. Loyd v. Loyd, 336 So.2d 912 (La.App. 2nd Cir.1976). The record indicates that neither party was well disposed toward the other. This incompatibility was manifested by the bickering and fussing that Mr. Lamb complained of. Mrs. Lamb is not totally blameless in this matter, but neither was her conduct an independent or proximate cause of the marital discord. The trial court concluded that Mrs. Lamb’s role in these arguments was not a sufficient reason to blame her for causing the parties’ life together insupportable. The trial court’s conclusion that Mrs. Lamb’s conduct was not fault is not clearly wrong and therefore will not be disturbed on appeal. Pearce, supra. The trial court also concluded that the neglect of household chores was not fault to any significant degree. The trial court noted that the parties’ social and financial standing more or less excused Mrs. Lamb’s domestic ineptitude because a maid was easily affordable as well as dining out regularly. This factual conclusion will not be disturbed on appeal because it is not clearly wrong. Neglect under these circumstances did not render the parties’ life together insupportable.

Finally, the absence of sexual relations can be ill treatment that constitutes fault if it is caused by the unjustified and persistent refusal by one spouse. Saucier v. Saucier, 357 So.2d 1378 (La.App. 4th Cir.1978). Mr. and Mrs. Lamb’s testimony on this issue is in direct contradiction. Mrs. Lamb claimed that no advances were made while Mr. Lamb claims that his advances were refused. The trial court resolved this factual issue in favor of Mrs. Lamb and concluded that the cause was a mutual abstention. This conclusion is supported by the evidence therefore it will not be disturbed. Watson v. Watson, 442 So.2d 1310 (La.App. 3rd Cir.1983). In sum, the trial court’s decision that Mrs. Lamb met her burden of proving that she was- not at fault to a degree that would preclude her from receiving alimony is affirmed.

Although Mrs. Lamb met her burden of proving that she is free from fault, she must also prove her need for financial support. Schexnayder, supra; Silas, supra. This issue was not directly addressed at the trial and no conclusions on Mrs. Lamb’s financial situation were drawn. This inquiry requires the court to look into the income and property of the spouse requesting alimony before making its determination on entitlement thereto. Moss v. Moss, 379 So.2d 1206 (La.App. 3rd Cir.1980). Earlier in the proceedings an inquiry was made to ascertain Mrs. Lamb’s need for alimony pendente lite pursuant to La.C.C. ark 148, but the criteria for determining the need for permanent alimony is different from that of temporary alimony. Permanent alimony is in the nature of a pension while alimony pendente lite is based on the husband’s obligation to support his wife during the marriage. Wasson v. Wasson, 402 So.2d 718 (La.App. 1st Cir.1981). Therefore a new inquiry must be made. This case is remanded for the purpose of determining Mrs. Lamb’s need for permanent alimony pursuant to La.C.C. art. 160.

The trial court’s judgment is affirmed for the above reasons. The case is remanded in order to ascertain Mrs. Lamb’s financial need for permanent alimony. Both parties are to bear the costs of this appeal.

AFFIRMED AND REMANDED.

ON REHEARING

PER CURIAM.

In our original decision we affirmed the trial court’s decision that Mrs. Lamb was not at fault in causing the dissolution of her marriage to W.C. Lamb, but we remanded the case for the purpose of ascertaining Mrs. Lamb’s financial need for permanent alimony because there was no evidence in the record concerning this issue. Subsequent to the trial court’s judgment, Mrs. Lamb filed a rule seeking permanent alimony wherein her financial need was addressed. Therefore, the need to remand the original trial court judgment ceases to exist. Accordingly, we grant the rehearing and hereby order the deletion of that portion of our opinion entitled HELEN LAMB v. W.C. LAMB, Docket No. 83-897, that orders the remand of the case for the purpose of ascertaining Mrs. Lamb’s financial need for permanent alimony. The remaining portion of our opinion remains in effect.


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    W.C. LAMB, Plaintiff-Appellant, v. Helen H. LAMB, Defendant-Appellee.
    No. 83-898.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Writs Denied Jan. 25,1985.
    Bean & Rush, Warren D. Rush, Lafayette, for plaintiff-appellant.
    Vance R. Andrus, Caliste Beard, Jr. and J. Michael Artigue, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

For the reasons assigned in the matter entitled Lamb v. Lamb, 460 So.2d 634 (La.App. 3rd Cir.1984), the judgment is affirmed.

AFFIRMED.


author: KLEES, Judge. REDMANN, Chief Judge, BARRY, Judge,

text:
    Hilda Mae Power McCOY v. Elmer E. McCOY.
    No. CA-1458.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Rehearing Denied Dec. 27, 1984.

      Martha E. Sassone, Marco A. Rosamano, Gretna, for plaintiff-appellee Hilda Mae Power McCoy.
    Wayne E. Garrett, Charbonnet & Char-bonnet, New Orleans, for defendant-appellant Elmer E. McCoy.
    Before KLEES, LOBRANO and CIAC-CIO, JJ.
   KLEES, Judge.

This appeal is from a judgment of the Civil District Court on a rule for settlement of community assets formerly existing between the appellant, Elmer McCoy and the appellee, Hilda Mae Power McCoy. The judgment appealed from declared the appellant’s Pension Plan fund to be community property, owned equally by the parties, and therefore subject to partition.

The issues presented on appeal are: (1) whether the trial court erred in holding that the pension plan is a community asset; (2) whether the trial court erred in not granting to defendant credit for those contributions made to the Pension Fund prior to his marriage, subsequent to the dissolution of his marriage, and also 9.75 years claimed by the defendant to have been repurchased by him with separate funds; and (3) whether the court erred in failing to reimburse defendant and his separate estate for those community debts paid by him subsequent to the dissolution of the community.

The McCoys were married on October 1, 1949. Although a suit for separation was filed by the wife on July 28, 1977, it was not pursued to judgment. The husband filed a petition for divorce in August 28, 1978, and judgment was rendered on December 14, 1978. Accordingly, the community of acquets and gains terminated on August 28, 1978. La.C.C. Art. 159.

Mr. McCoy joined the retirement system on June 14, 1949, three and one-half months before his marriage and retired on April 30, 1979, eight months after the dissolution of the community. These periods total eleven and one-half months or 0.96 years of creditable service not attributable to the marriage. He also accrued 1.8 years credit for unused annual and sick leave which would have been earned during the marriage. Accordingly, upon retirement, he was credited with 32.70 years of which 31.8 years is credited to the marriage or 97.25%, with the wife’s share being 48.62% if the pension benefits are a community asset.

The appellant relies on Roberts v. Roberts, 325 So.2d 674 (La.App. 2d Cir.1976); Scott v. Scott, 179 So.2d 656 (La.App. 2d Cir.1965); and in pertinent part, Kennedy v. Kennedy, 391 So.2d 1193 (La.App. 4th Cir.1980), arguing that the statutorily created pension plans in those cases were held to be the separate and paraphernal property of the employee-spouse, and, by analogy, defendant-appellant is entitled to have the benefits under his pension plan with the Louisiana State Employee’s Retirement System declared his separate and parapher-nal property.

The appellee argues that the cases of Thrash v. Thrash, 387 So.2d 21 (La.App. 3d Cir.1980), writ den. 393 So.2d 745 (La. 1980); T.L. James & Company, Inc. v. Montgomery, 332 So.2d 834 (La.1976); and Sims v. Sims, 358 So.2d 919 (La.1978) are controlling in this case, and, accordingly, Louisiana State Employee’s Retirement System’s pension funds are community property.

In Thrash the court decided that the former wife’s rights in the Teacher Retirement System pension plan, which were acquired as a result of her employment during the existence of the community, were community property, and the husband was recognized as the owner of the one-half of that portion of the benefits attributable to his wife’s employment during the existence of the community of acquets and gains. As the basis for this holding, our brethren on the Third Circuit held that a statutory state exemption forbidding execution-sale and limiting assignability of retirement plan proceeds does not preclude the classification of State Retirement rights as community property.

Thrash conflicts with the holdings of Roberts, Scott and Kennedy and refutes the reasoning of these cases. The Third Circuit relied upon Sims and T.L. James & Company wherein the Louisiana Supreme Court clearly set forth guidelines to be followed in determining community interest in deferred compensation plans.

In T.L. James, on rehearing Justice Tate, as organ for the court, stated that:

“Each contribution of the employer to the funds entitles the employee or his beneficiary to share subsequently in the funds’ proceeds; when made during the community, the property right to share ultimately in the proceeds thereby acquired by the wage earner, is ‘acquire(d) during the marriage’, Civil Code Article 2402 and is thus a community asset. Civil Code Article 2334; Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169 (1956). Therefore, the value of the right to share proportionately in the fund, which right is contractually acquired by virtue of each contribution, falls into the community during which the contribution is made; for by each contribution, when made, the employee (or his beneficiary or estate) has acquired a right to share pro rata in the proceeds ultimately payable from the funds to the employee or his contractual beneficiary or his estate.
The value of the right to share in the retirement and profit-sharing funds is an incorporeal, movable right. When acquired during the existence of marriage, the right-to-share is a community asset, which, at the dissolution of the community, must be so classified — even though at the time acquired or at the time of dissolution of a community, the right has no marketable or redeemable cash value, and even though the contractual right to receive money or other benefits is due in the future and is contingent upon the happening of an event at an uncertain time. Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169, 174-175 (1956). When a community is dissolved, the employees spouse is thus entitled to be recognized as the owner of one-half the value of the right-to-share, insofar as attributable to the contributions paid into the fund as deferred compensation to the employee during the existence of the community (i.e., even though it may not by the contract be payable at that time). Id.; Laffitte v. Laffitte, 253 So.2d 120 (La.App. 2d Cir.1971), noted 33 La.L.Rev. 222-23 (1973). However, when the proceeds do become payable under the contract to the employee or his beneficiary or estate, the spouse is entitled at that time to receive payment as owner of her share of the proceeds, based upon the value of the right to share acquired during the community formerly existing between her and the wage earner.
For the reasons more fully set forth on our original opinion, we are unwilling to extend by analogy the principles applicable to the purchase of life insurance policies to the acquisition of community interests in retirement or profit-sharing funds such as those at issue. Jurispru-dentially, as confirmed legislatively, life insurance interests are treated sui gener-is as an exception to the usual rules of acquisition of property interests during a community.” T.L. James, at 851-852.

The appellee contends that the exclusivity of the statutory retirement plans is no basis to circumvent the enduring principles of community property, so fundamental to Louisiana law. Citing T.L. James, the ap-pellee suggests an analogy between a private company retirement plan and the exclusive nature of the statutory pension plans, asserting that the exclusivity of either plan should have no bearing on the court’s decision as to whether the benefits of the pension plan at bar are community or separate.

Appellant urges that the reasoning and holding of the T.L. James case does not apply to statutorily created pension funds, particularly, the Louisiana State Employee’s Retirement System. However, the exemption provisions in the State Retirement plan which forbids the execution-sale and limits the assignability of retirement plan proceeds are no different, in principle, from similar provisions contained in 5 U.S.C. Section 8346 in the federal plan. Our Supreme Court in Sims classified such federal retirement benefits as community property. We cite with approval the reasoning expressed by our brethren of the Third Circuit in Thrash at p. 25:

“Exemption provisions such as 5 U.S.C. Section 8346 in the federal plan and LSA-R.S. 17:573 in the State Teachers Retirement System plan are not disposi-tive of ownership as they serve no classificatory function. The purpose of such exemptions serve merely to protect the funds contributed into the public retirement system by the employee and preserve the integrity of said funds and the benefits accrued thereon for the purpose of providing a pension for the public employee in retirement.

The Supreme Court of Louisiana in Montgomery and Sims held both private and statutory pension proceeds to be community property. On the basis of Montgomery and Sims we hold that, in the instant case, the retirement benefits acquired during the marriage are community property and the divorced wife has a one-half interest in that portion of the husband’s state retirement benefits acquired during the marriage which, using the formula of Sims, may be calculated as follows:

Portion of pension attributable to creditable service during existence of community monthly
(31.8 years) = 97.25% X ½ X annuity
Pension attributable to total creditable service (32.7 years)

Mrs. McCoy is therefore entitled to 48.62% of every pension check that Mr. McCoy has received since the dissolution of the community and will hereafter receive.

Appellant relies on Kennedy v. Kennedy wherein this Court found that the retiree’s interest in the Firefighters Pension and Relief Fund was his separate property. Although the Court in calculating the divorced spouse’s interest in the accrued fund, applied the Sims formula, it did not recognize any continuing interest or ownership in the pension payments themselves. Although the language in the Firefighters Pension statute is not identical to the instant case and may be distinguished on those grounds, we now conclude that, to the extent the Kennedy case conflicts with this opinion, that it is overruled.

The judgment is silent as to the claims of husband and wife for reimbursement of separate funds claimed to have been advanced for the benefit of the community, and our review of the record does not contain evidence necessary to overcome the presumption of community.

Appellee did not file an answer to the appeal. Accordingly, the failure of the trial court to recognize her claim for reimbursement of $4,000.00 claimed to have been loaned to her by her father for the downpayment on the family home cannot be reviewed on appeal.

We hold that the retirement credits repurchased by Elmer McCoy on December 29, 1971, enure to the benefit of the community and we further hold that he failed to overcome the presumption that the funds used for the purchase were community funds.

The parties agreed in stipulation and brief that Elmer McCoy is entitled to a credit of $2,431.38 representing his former wife’s one-half obligation for the community debt owed to the Whitney Bank totaling $4,862.76.

The parties also agreed that Elmer McCoy cashed in two community insurance policies for $2,457.52 and he owes Hilda McCoy one-half of this amount, or $1,228.76. All other claims of community debts alleged to be owed by Hilda McCoy, and which were not agreed to or recognized in the judgment, are denied.

For the above and foregoing reasons, we order, adjudge and decree that Hilda Mae Power McCoy is entitled to 48.62% of every pension check Elmer E. McCoy has received or will receive from the Louisiana State Employee’s Retirement System since the dissolution of the community. In all other respects the trial court judgment is affirmed.

AMENDED IN PART

AFFIRMED IN PART.

REDMANN, C.J., and GARRISON and BARRY, JJ., dissenting.

REDMANN, Chief Judge,

dissenting from overruling

Kennedy correctly interpreted La.R.S. 33:2120’s words (found also in R.S. 42:545) making state employee pensions “exempt from levy and sale, garnishment, attachment or any other process whatsoever, and ... unassignable _” It correctly allowed to the non-employee spouse a credit for the enhancement of the pension value by community funds, as Louisiana courts have long done for community expenditures upon (and enhancement thereby to) separate property. That is exactly what the trial court should have done here. (Other assets did exist, including a home that the parties sold, dividing its proceeds.) Indeed, the trial court or this court could simply render a judgment against the retired employee for any amount due to the non-employee spouse. That judgment could be executed just as any other judgment. But R.S. 42:545 provides that state employee retirement system benefits are “exempt from levy and sale, garnishment, attachment or any other process whatsoever....” Is there some way to enforce a judgment other than by “levy and sale, garnishment, attachment or [some] other process whatsoever”? Is there some process that is not some “other process”?

BARRY, Judge,

dissents from overruling:

The logical and well-reasoned holding of Kennedy effectively interprets R.S. 33:2120 as it was legislatively intended. J. Redmann’s rhetorical question spotlights the majority’s fallacious position.

      . In compliance with this court’s internal rule the question of overruling Kennedy has been submitted to the entire court, a majority of which join in the overruling, with, CJ. Red-mann, and JJ. Garrison and Barry dissenting. At the time this matter was submitted, Judge Louis Moore Jr., was appointed by the Louisiana Supreme Court to fill a vacancy on this court.


author: EDWARDS, Judge.

text:
    Frank BICKHAM, Jr. and Frank Bickham, Sr. v. Timothy H. GOINGS, Felder Goings, and State Farm Mutual Automobile Insurance Company.
    No. 83-CA-0790.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Writ. Denied Jan. 25,1985.

      R. Bradley Lewis, Richard F. Knight, Bogalusa, for plaintiffs.
    E. Kelleher Simon, Covington, Alton Lewis, Iddo Pittman, Hammond, for defendants.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

The defendants, Timothy and Felder Goings and their insurer, State Farm Mutual Automobile Insurance Company, appeal a judgment notwithstanding the verdict (JNOV) awarding Frank Bickham, Jr. $17,-475.65 in damages for injuries sustained in a tractor-automobile collision and a judgment awarding his father, Frank, Sr., $100 in property damages to his car.

The accident occurred on July 22, 1981, when Timothy, Felder’s seventeen year old son, was driving his father’s 1970 Ford farm tractor and attempted a left turn off Louisiana 38 into the driveway of his home. Frank, Jr., who was taking his girlfriend home after a day of shopping, was driving his father’s 1979 Thunderbird at approximately 50 mph, within the posted speed limit of 55 mph. Timothy testified that the roar of the tractor’s engine drowned out the sound of the Thunderbird and that he did not see the car approaching from over-hill about 200 feet away until after his tractor had already crossed over into the opposing lane. Because of the tractor’s slower speed, he was unable to return to his own lane in time to avoid the collision. Frank, Jr., spotted the tractor as he crossed the crest of the hill and was proceeding down the straight slope toward the tractor. He applied his brakes, but was unable to stop before crashing into the left rear wheel of the tractor, which was protruding two feet over the center line of the highway. The skid marks left by his tires measured from approximately 116 to 132 feet in length.

The collision totaled the Thunderbird. Tim was unhurt, but Frank, Jr. was taken to Riverside Medical Center for emergency treatment. His injuries included a cerebral concussion, contusions and abrasions on his face and left forearm, and a large hemato-ma above his left eyebrow which later formed a calcium deposit and an unsightly wrinkling indentation on his forehead. Because of the concussion, he was hospitalized two days for observation and then released. He suffered recurrent headaches for several months after the accident, typical with concussions, and a total loss of memory of the events immediately surrounding the accident.

Frank, Jr., sued to recover damages for his injuries. Frank, Sr., joined in the suit to recover damages to his car, but by stipulation before trial reduced his claim to the $100 deductible on his insurance policy and agreed to try his case before the judge alone. The defendants denied liability and pleaded several affirmative defenses including last clear chance, contributory negligence and comparative negligence, all on the ground of Frank, Jr.’s, alleged negligence in speeding. They also filed a third party claim against Frank, Jr., should they be held liable in Frank, Sr.’s suit.

In Frank, Jr.’s, suit, the jury returned a special verdict in defendants’ favor in the form of two special findings: that Timothy was negligent or guilty of fault and that his negligence was not the cause in fact of the accident. In accordance with LSA-C. C.P. art. 1812, the trial judge entered judgment in conformity with those findings. In Frank, Sr.’s, suit, however, the trial judge found the defendants liable and awarded Frank, Sr., the $100. deductible.

Frank, Jr., filed a motion for judgment notwithstanding the verdict and an alternative motion for a new trial. After a hearing, the trial judge granted the JNOV, awarded damages in the amount specified above, plus interest and costs, and granted a conditional new trial, under LSA-C. C.P. art. 1811C, in the event this court should overturn the JNOV on appeal. The trial judge explained his ruling as follows:

Under the facts of this case the court is convinced that plaintiff is entitled to judgment notwithstanding the jury verdict. Due to the absence of appellate decisions concerning Act 41 of 1982 [which enacted Code of Civil Procedure art. 1810.1, later amended and renumbered art. 1811 by Acts 1983, No. 534, Section A], it may be appropriate to look to the Federal system for guidance in granting a judgment notwithstanding the verdict. The United States Fifth Circuit Court of Appeals has held that the standard for granting a motion for judgment notwithstanding a verdict requires that the trial court review all of the evidence in a light most favorable to the opponent of the motion, and if the trial court still finds that the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable men could not arrive at a contrary verdict, the motion for judgment notwithstanding the verdict should be granted. Boeing Company v. Shipman, 411 Fed.2d 365 (5th Cir.1969).
It has long been the accepted law of this state that a left turn across a highway is one of the most dangerous maneuvers that a driver can negotiate, and that he may only commence this maneuver after determining that it can be completed without danger or injury to oncoming traffic. Timothy Goings did not satisfy this requirement of the law. It would have been quite easy for him to have used the entrance to his father’s residence situated at the crest of the hill, and at a point where he would have had unrestricted view of oncoming and overtaking traffic. He was clearly negligent.
When Bickham, Jr. came over the crest of the hill traveling approximately fifty miles per hour and within the speed limit, he was faced with the left turning tractor. The negligence of Timothy Goings placed Bickham, Jr., in an emergency situation, and the response of Bickham, Jr., to the emergency was entirely proper under the circumstances. After reviewing all of the evidence in a light most favorable to the defendants, this court finds that the facts and evidence, together with the law, are so strong and overwhelming in favor of Bickham, Jr., that reasonable men could not determine that the negligence of Timothy Goings was not a “cause in fact” of the accident. Under the facts of this case and the law of this state, reasonable men could only conclude Timothy Goings did in fact cause the accident by his negligence and that Bickham, Jr., was free of any negligence whatsoever.
Although this case falls squarely within the standards established within the Federal system for the granting of the judgment notwithstanding the verdict, the Court does not feel that the strict standards of the Federal system are applicable to the State’s statute, because of our appellate review of the facts. Although the decision need not be made in this case, it would appear appropriate for a district judge to grant a judgment notwithstanding the verdict when a jury commits manifest error or the verdict is contrary to the law and evidence.
The court also feels that a judgment notwithstanding the verdict must be granted for two additional reasons. First, under the facts of this case, the answers of the jury to interrogatories one and two are inconsistent with one another. It is inconsistent, if not inconceivable, for the negligence of a left-turning driver in this case not to have been the cause in fact of the accident. Secondly, the judgment of the court and the verdict of the jury is irreconcilable, and under the facts of this case, and particularly the type of verdict from submitted to the jury, it is the responsibility of the trial court to reconcile the judgment with the jury verdict.

The defendants assign error to virtually every aspect of the judge’s ruling. They specifically attack the judge’s three reasons for granting the JNOY.

They contend first that he failed to apply, or misapplied, the correct standard for granting the JNOY, as it is articulated in Boeing. Moreover, they argue that he improperly used the JNOV to reconcile the jury’s findings, which they contend are not necessarily inconsistent, and that by reconciling the jury verdict with his own judgment in Frank, Sr.’s, suit, he usurped our appellate authority as explained in Thornton v. Moran, 343 So.2d 1065 (La.1977).

Despite his comment that the presumably less strict manifest error standard might be more consistent with Louisiana’s appellate review of facts, his reasons make clear that he specifically applied the stricter federal standard, which has been adopted by nearly every appellate court in Louisiana, including our own: A JNOV under LSA-C.C.P. art. 1811 should be granted only when the evidence points so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict on the facts at issue. See Lincecum v. Missouri Pacific Railroad Co., 452 So.2d 1182 (La.App.lst Cir. 1984); Rougeau v. Commercial Union Insurance Company, 432 So.2d 1162 (La.App.3rd Cir.1983); Roberts v. St. Bernard Parish School Board, 427 So.2d 676 (La.App.4th Cir.1983); Courtney v. Winn-Dixie Louisiana, Inc., 447 So.2d 504 (La. App.5th Cir.1984).

After reviewing the evidence in this case, we agree with the trial judge that the jury could not reasonably have concluded that Tim’s negligent left turn was not a “cause in fact” of the accident.

Whether or not it constitutes a legal cause rendering him liable for damages, a defendant’s action or conduct is a cause in fact of harm to another, if but for his conduct the accident or harm would not have occurred, or if his conduct is a substantial factor in bringing about the harm. Dixie Drive-It-Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962); Craig v. Burch, 228 So.2d 723 (La.App.1st Cir.1969); Carpenter v. Travelers Insurance Co., 402 So.2d 282 (La.App.3rd Cir.1981).

Apart from the question of plaintiffs contributory negligence in speeding, it is quite clear that defendant’s attempted left turn off of the highway, at a point where he had an unobstructed view of approaching traffic for only 200 feet, while driving a noisy, slow moving tractor, was a substantial factor in causing this accident. We agree that reasonable men could not have reached a contrary verdict on this fact issue and uphold the granting of the JNOV in this case.

Accordingly, we find it unnecessary to address defendant’s other arguments attacking the trial judge’s two remaining reasons for granting the JNOV. One valid reason is sufficient to support his judgment. Moreover, because we have affirmed the JNOV we need not decide whether the trial judge properly granted the plaintiff a conditional new trial. However, we note that LSA-C.C.P. art. 1811C specifically authorizes such conditional new trials, while recognizing at the same time our appellate authority to modify such orders as the case may require.

In reaching the verdict, the jury passed on only one fact at issue, whether Tim’s negligence was a cause in fact of the accident, and left unresolved the remaining issues concerning plaintiff’s contributory negligence and damages. In granting the JNOV, overturning that finding, the trial judge, on the basis of the same evidence presented to the jury, accordingly made those findings independently. Specifically, he found that Timothy’s negligence was the sole cause of the accident and that Frank, Jr., was free of any contributory negligence. Under Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) we are bound to accept those findings unless the record establishes that they are clearly wrong. Our review convinces us that they are not.

Defendants contend that Frank, Jr.’s, speeding was the sole cause of the accident. As proof of his speeding, they rely on the hearsay testimony of Timothy and Felder Goings and the proffered testimony of two witnesses they presented as experts in accident reconstruction.

As for the proffered testimony, upon proper objection by plaintiffs’ counsel, the trial judge excluded the testimony of Dr. Olin K. Dart, a civil engineer and expert in accident reconstruction, because his name had not been listed as a witness in the pre-trial order and because the defendants did not give plaintiffs’ counsel notice of their intention to use Dr. Dart’s testimony at least ten days prior to trial, as the pre-trial order required. In fact, defendants’ counsel did not give the required notice until the first day of trial.

The trial judge is given wide discretion in enforcing his pre-trial orders. We find no abuse in his ruling excluding the testimony of this “eleventh hour” witness. Hunnicutt v. Kent, 434 So.2d 91 (La.5th Cir.1982), writ denied, 435 So.2d 442 (La.1983); Sibley v. Menard, 398 So.2d 590 (La.App.1st Cir.1980).

The trial judge also refused to accept the testimony of Jay Haindel, claims adjuster for State Farm, concerning certain brake tests he conducted about six months after the accident. The trial judge sustained plaintiffs’ objection that he was not qualified as an expert in accident reconstruction and excluded his testimony concerning those braking tests. In Hunnicutt the defendants attempted to elicit similar testimony concerning braking tests from a witness who had not been qualified as an expert at accident reconstruction in an attempt to establish the speed of the plaintiff’s automobile. The trial judge refused to accept this testimony and the Fifth Circuit Court of Appeal affirmed saying,

There is no merit in the defendant’s contention that the trial judge erred in refusing to accept defendants’ expert witness ... as an expert in accident reconstruction. The qualifications of an expert witness rest within the sound discretion of the trial judge, and the judge’s determination will not be disturbed by the appellate court; [absent] a clear abuse of the trial judge’s discretion....

434 So.2d at 94 (citations omitted).

For the reasons assigned in Hunnicutt, we find no error in the trial judge’s exclusion of this testimony.

These rulings left only the hearsay testimony of Timothy and Felder Goings as proof of Frank, Jr.’s, speeding. Timothy testified that some months later in a verbal confrontation with Frank, Jr., in which he accused him of speeding, Frank, Jr. said, “I ain’t denying that.” Felder testified that Frank, Jr., had told him that when his car reaches a speed of 70 mph the radiator produces a whistling sound. At the time of the accident, Felder was standing about 150 yards off the highway gathering firewood and heard the whistling sound as Frank, Jr., came over the crest of the hill.

These are quite obviously self-serving statements which the trial judge considered to be insufficient proof of speeding. Frank, Jr.’s, girlfriend testified that he had not been speeding at the time of the accident, and Trooper Wendel Richardson, the officer who investigated the accident, estimated the speed of Frank, Jr.’s automobile at approximately 50 mph. Defense counsel did not object to Richardson’s testimony or to Richardson’s qualifications as an expert.

Because of the paucity of evidence on the issue on speeding, we find no error in the trial court’s finding that Frank, Jr., was not contributorily negligent. Cf. Tucker v. Lirette, 400 So.2d 647 (La.1981).

On the issue of quantum, the trial judge awarded $15,000 in general damages for Frank, Jr.’s, pain and suffering, $1,500 for damages to cover the cost of cosmetic surgery to remove the hematoma and wrinkling calcium deposits in his forehead, and $975.65 in special damages in the following itemized amounts:

Riverside Medical Center $452.25
Dr. LaBoue J. Berthelot $132.00
Dr. George W. Hoffman, Jr. $115.00
Loss wages $246.40
Expenses — one trip to New Orleans for examination by Dr. Hoffman at $.20 per mile $30.00

We do not find the general damages award of $15,000 to be excessive. See Reck v. Stevens, 373 So.2d 498 (La.1979). Nor do we agree with defendants that the $1,500 cosmetic surgery award is a prohibited speculative damage award. As the trial judge explained,

Dr. Hoffman indicated that three to four years must past before he can make a definite determination as to whether or not the indentations in Frank, Jr.’s left forehead is permanent. There is no reason to require Bickham, Jr. to wait for such an expanded period of time for it to resolve on its own or for it to be surgically repaired. The defendants are obligated to plaintiff for the immediate repair of Bickham’s facial disfigurement, and the court will grant him the sum of $1,500 to cover this future medical expense.

Accordingly, we affirm the judgments of the trial court awarding Frank, Jr., $17,-475.65 in personal injury damages and Frank, Sr., the $100 deductible under his insurance policy.

Appellants are taxed for all costs of these proceedings.

AFFIRMED.


author: GROVER L. COVINGTON, Chief Judge.

text:
    Gerald D. LONG v. LAFOURCHE PARISH SCHOOL BOARD.
    No. 83 CA 1159.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      T. Michael Masterson, Thibodaux, for plaintiff-appellee.
    Jerome J. Barbera, III, Thibodaux, for defendant-appellant.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON, JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   GROVER L. COVINGTON, Chief Judge.

This is an appeal by the Lafourche Parish School Board from a judgment of the District Court ordering the School Board to pay the plaintiff, Gerald D. Long, the sum of $21,640.96, together with legal interest, which amount represented lost pay and lost contributions to the retirement fund. The judgment also ordered that the plaintiff be appointed to “the nearest available position of equal status and rank to that of a junior high school principal, together with all corresponding emoluments thereof.” This is a suit brought under the provisions of LSA-R.S. 17:441 et seq., commonly known as the Louisiana Teachers’ Tenure Act. Plaintiff, Gerald D. Long, brought this suit alleging that he is entitled to recover from defendant, Lafourche Parish School Board, those sums of money lost as a result of his unlawful demotion, together with attorney’s fees and costs. Specifically, plaintiff claims that defendant unlawfully withheld salary and cost of living increases, as well as certain contributions to his retirement fund; and, that this action constituted a “bad faith demotion,” which adversely affected past, present and future emoluments of his position. Plaintiff also sought judgment entitling him to the next available junior high school principalship or assistant principalship within the Lafourche Parish School System.

In 1977 plaintiff was appointed to serve as principal of South Thibodaux Junior High for the 1977-78 school year. Plaintiff served in this position and capacity for two consequitive school terms. In April of 1979 plaintiff was re-appointed as principal of the same school for the 1979-80 school term.

Prior to the beginning of the 1979-80 school year, South Thibodaux Junior High School was consolidated with two other area schools and consequently, plaintiffs position as principal was abolished. As a result, plaintiff was appointed to an assistant principalship at another area junior high school for the 1979-80 school year. This appointment was pursuant to a letter addressed to all School Board Members from Jeffrey J. LeBlane, Superintendent of Schools, dated May 2, 1979, in pertinent part as follows:

“As you are aware ... the transfer of the seventh-grade pupils of South Thibo-daux Junior High School to the East Thibodaux and West Thibodaux Junior High Schools require that consideration be given to tlie assignment of the personnel presently employed at the schools whose operation will be discontinued with the 1979-80 school year.
It is my recommendation that all personnel be reassigned and that as a result of reassignment no one suffer a loss of pay. Accordingly, I recommend ...
(7) That because of the increase in enrollment, and so that no present administrator be demoted below the rank of administrator, an additional assistant principal-ship be created for each of the junior high schools in Thibodaux until absorbed by attrition and that Mr. Gerald Long be assigned as assistant principal at West Thibodaux Junior High School....”

The recommendation was approved by the board at a special meeting held on May 17, 1979. At the beginning of the 1979-80 term, plaintiff was transferred to W.S. La-fargue Elementary school to serve in the position of assistant principal.

Despite the fact that plaintiff was serving in a lower administrative position during the 1979-80 term, he continued to receive the salary of a junior high school principal, but was not given cost-of-living increases as set forth in the board’s salary index schedule. Further, during the 1980-81 and 1981-82 school terms, plaintiffs salary, retirement fund contributions and cost-of-living increases were reduced. The reductions in salary and benefits were a result of plaintiff being compensated as an elementary school assistant principal rather than as a junior high school principal. These latter reductions remained in effect for the 1982-83 school term. During all pertinent times plaintiff served without recommendation or notice of dismissal, discharge or unsatisfactory performance.

At the time of the trial, Mr. Long was serving as an assistant principal in an elementary school and not receiving benefits comparable to those of a principal in a junior high school.

In his suit, the plaintiff sought to recover the differences in salary and cost-of-living increases, lost contributions to his retirement fund, and other emoluments of the position of junior high school principal. Following trial, the court below granted the relief requested.

Applicable to the instant case are the provisions of LSA-R.S. 17:441, et seq.

Revised Statute 17:442 states, in part: Each teacher shall serve a probationary term of three years to be reckoned from the date of his first appointment in the parish or city in which the teacher is serving his probation. During the probationary term the parish or city school board, as the case may be, may dismiss or discharge any probationary teacher upon the written recommendation of the parish or city superintendent of schools, as the case may be, accompanied by valid reasons therefor.
Any teacher found unsatisfactory by the parish or city school board, as the ease may be, at the expiration of the said probationary term, shall be notified in writing by the board that he has been discharged or dismissed; in the absence of such notification, such probationary teacher shall automatically become a regular and permanent teacher in the employ of the school board of the parish or city, as the case may be, in which he has successfully served his three year probationary term; ...”

Further, LSA-R.S. 17:444, through which the preceding statute becomes applicable in the instant case, provides:

“Whenever a teacher who has acquired permanent status, as set forth in R.S. 17:442 and 17:443, in a parish or city school system is promoted by the employing school board by moving such teacher from a position of lower salary to one of higher salary, such teacher shall serve a probationary period of three years in the higher position before acquiring permanent status therein, but shall retain the permanent status acquired in the lower position from which he or she was promoted.
During the probationary period in the position to which promoted, a teacher shall not be disciplined, removed or demoted to the lower position from which he or she was promoted except in compliance with the provisions of R.S. 17:^2. At the expiration of the probationary period in the higher position, a teacher, unless removed or demoted in accordance with R.S. 17:442, shall automatically acquire permanent status in the higher position and thereafter may not be disciplined, removed or demoted from such higher position except in compliance with the provisions of R.S. 17:443.
Where a teacher has not completed the probationary period for teachers as required by R.S. 17:442, or for a particular promotional position as established herein, and is promoted to a higher position, the probationary period, either as a teacher or in the previous promotional position, shall continue to run and at the end of such three year probationary period the teacher shall automatically acquire permanent status in the previously held position until permanent status in the new position is acquired by compliance with the provisions of the Section.” (Emphasis added.)

In administering public schools, a parish school board is given broad powers and responsibilities. When acting in good faith, a board is empowered with the authority to consolidate and/or abolish positions. Further, the discontinuance of a position does not automatically remove or demote the teacher holding that position. Dugas v. Ascension Parish School Board, 228 La. 80, 81 So.2d 817 (1955).

The jurisprudence construing the Teachers’ Tenure Act consistently holds that the Act protects a teacher not only from dismissal without cause, but also from transfer to a lower position with a corresponding reduced rank or salary. See, e.g., Pardue v. Livingston Parish School Board, 251 So.2d 833 (La.App. 1st Cir.1971). Nevertheless, a school board has the authority to transfer a teacher from one position to another. In the event of transfer, the teacher must be reassigned to the nearest position of his prior or comparable status without any reduction in salary or corresponding benefits. Dantone v. Tangipahoa Parish School Board, 279 So.2d 779 (La.App. 1st Cir.1973), writ denied 281 So.2d 754 (La.1973).

In the present case, it is apparent that the closing of the junior high school at which plaintiff had been a probationary principal for two prior terms caused the abolition of his position. Plaintiff’s subsequent appointment to the position of assistant principal at an elementary school appears proper in view of the fact that no credible evidence was presented showing that an administrative position of equal rank was available for which plaintiff was qualified. A review of the letter which appellant contends constitutes written recommendations, with valid reasons, reveals that the superintendent never recommended that Mr. Long be demoted or have his salary reduced. In fact, the letter recommends that “no one suffer a loss of pay.” The school board accepted this recommendation. Thus Mr. Long was to receive the same salary as he had been receiving as principal.

La.R.S. 17:444 provides that when a teacher has been in a position of “higher salary” for three years, the teacher shall acquire permanent status therein. Mr. Long had already served two years at the salary level of principal prior to the reassignment to the position of assistant principal; however, with the reassignment he continued at the same salary level, thus completing three years at the higher salary level and acquiring permanent status.

The next matter for consideration concerns the amount of unlawfully withheld salary and corresponding benefits that plaintiff is entitled to recover. Based on the salary schedule (and corresponding cost-of-living increases) and the retirement fund indexes of the school board, we find that the trial court properly held that the plaintiff is entitled to recover the amount of $21,640.96. This amount represents $19,854.10 in lost pay and $1,786.86 in lost contributions to the retirement fund.

These sums are based on the salary index of the school board and were calculated as follows:

1)The gross salary actually received by plaintiff for the school terms of:

1979-80 $20,452.03
1980-81 22,718.32
1981-82 28,002.04
1982-83 TOTAL 28,426.00 $99,598.39

2)The gross salary plaintiff would have received as a junior high school principal:

1979-80 $23,776.90
1980-81 27.698.29
1981-82 33,742.00
1982-83 34.275.30
TOTAL $119,452.49

3) The difference between the total salaries equals — $19,854.10.

4) Lost retirement benefits based on 9% employer contribution equals — $19,854.10 X 0.09=$1,786.86.

For the reasons assigned, the judgment of the trial court is affirmed. Costs in the amount of $400.00 are taxed against the School Board.

AFFIRMED.


author: SAVOIE, Judge.

text:
    Alice Diane Brogdon, Wife of/and Arnold A. GUSTAFSON, Jr. v. Theresa J. KOCH, Individually and as Administrator of the Estate of Her Minor Child, Theresa Hatfield, ABC Insurance Company, and John Hulitsky.
    No. 83 CA 1169.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Elaine W. Guillot, Slidell, for plaintiff-ap-pellee Alice Gustafson.
    James R. E. Lamz, Slidell, for defendant-appellant J. Hulitsky.
    Joseph F. Bishop, Jr., New Orleans, for defendant-appellee T. Koch.
    Wayne T. McGaw, New Orleans, for defendant-appellee Kemper Ins. Co.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SAVOIE, Judge.

This suit arises from an auto accident which occurred on October 18, 1980. Plaintiffs, Brogdon and Gustafson, were awarded a judgment of $2,353.13 against defendants, Theresa Koch, individually and as administrator of the estate of her minor child, Theresa Hatfield, 'and against John Hulit-sky. Hulitsky appealed from the judgment against him. We reverse.

The accident occurred when a car driven by Hatfield struck a car driven by Brog-den. In the original petition, Brogdon named Koch ahd Hatfield as defendants. She later amended her petition to include Hulitsky as a defendant, on the basis that “the car driven by Theresa Hatfield was owned by defendant, Theresa Koch or John Hulitsky.” At the trial, Hulitsky testified that he and Koch were legally separated prior to the accident. He also testified that there had been a community property settlement on October 8, 1980, and that the title of the car was transferred to Koch prior to the date of the accident. Brogdon presented no contradictory evidence.

In any civil case, plaintiff has the burden of proving each and every essential element of its claim by a preponderance of the evidence. One who asserts a fact must carry the burden of proof of that fact. Lincoln Big Three, Inc. v. Thomas, 444 So.2d 171 (La.App. 1st Cir.1983); Nelson v. Nelson, 421 So.2d 366 (La.App. 1st Cir. 1982). See also La.R.S. 15:439.

In the present case, Brogdon has presented no proof of Hulitsky’s ownership of the car. Hulitsky testified that the car was not owned by him. Brogdon offered no proof to rebut this fact. Since it has not been shown Hulitsky was the owner of the car, he cannot have liability as an owner.

Additionally, Hulitsky cannot be liable under L.S.A.-C.C. art. 2318. The driver of the car was his former step-child, and there was no proof in the record that Hulit-sky ever adopted her or had been appointed her tutor. The testimony of the mother was that the driver was her child and completely in her custody. Therefore, no liability could attach under this basis.

The judgment of the trial court in favor of plaintiffs, Alice Diane Brogdon, wife o'f/and Arnold A. Gustafson, Jr., against defendant, John Hulitsky, is hereby reversed. Costs of this appeal are assessed against plaintiff-appellee.

REVERSED.

      . Civil Code Art. 2318:
      The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemancipated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons.
      The same responsibility attaches to the tutors of minors.


author: LOTTINGER, Judge.

text:
    C.R. WALKER v. G.L. CREECH, dba Truck Services Hauling and Rentals.
    No. 83 CA 1179.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Rehearing Denied Dec. 28, 1984.
    Writ Denied March 8,1985.

      John Michael Parker, Baton Rouge, for plaintiff-appellant.
    Steve Marks, Baton Rouge, for defendant-appellee.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVINGTON, JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   LOTTINGER, Judge.

This is an action ex contractu by C.R. Walker against G.L. Creech, doing business as Truck Services Hauling and Rentals, for the enforcement of a lease entered into by the parties, and for damages which resulted from the alleged breach of the lease by Creech. From a judgment in favor of defendant, plaintiff has appealed.

FACTS

G.L. Creech, doing business as Truck. Services Hauling and Rentals (Creech), was in the trucking business and contracted with shippers for the shipment of freight. Creech had obtained a permit from the Public Service Commission (Commission) to operate as a contract carrier, and owned a number of trucks and trailers which he used in his business.

C.R. Walker (Walker) was also in the trucking business, but was unable to obtain a permit from the Commission. Therefore, his principal business was derived from the leasing of his trucks to enterprises which had obtained the necessary permit. These enterprises would, for a fee, use Walker’s trucks to haul freight for a shipper.

During the period from July 1978 to February 1980 Walker leased a number of trucks to Creech. During this same period a number of lease agreements were utilized. All leases were identical, except for the description of the various trucks which were leased. These leases were in writing and met all the formal requirements of the Commission.

Under these leases, compensation to Walker for the use of his trucks was to be “70% gross revenue.” In accounting for the gross revenue, each week Creech would furnish Walker with a listing of the prior week’s shipping activity involving Walker’s trucks.- These lists contained a listing of each load of freight moved by Walker’s trucks, the shipper’s (customer’s) name, the amount from which Walker was to be paid, and 70% of that amount, which was to be Walker’s compensation. Walker never received any invoices or bookkeeping from Creech and relied on Creech to handle all billing and computations. Creech would pay Walker the amount due under their agreement on a weekly basis.

The dispute which prompted this lawsuit arose over the manner in which Creech calculated the “70% gross revenue” due Walker. Before calculating Walker’s compensation, Creech would deduct a portion of the actual amount received from the customer. This amount was applied by Creech as rental for his trailers, which were pulled by Walker’s trucks. After deducting this amount, Creech would use the remaining figure as gross revenue to compute Walker’s 70% compensation.

When Walker learned that Creech had been deducting this amount for trailer rentals, he filed suit for 70% of this money retained by Creech. In addition, Walker asked for damages which resulted from his borrowing of money to remain in business, which he would not have had to do if Creech would have paid him the proper amount of compensation. Walker alleges that “70% gross revenue” meant 70% of the total amount billed to Creech’s customers, and that any rental due Creech for his trailers was encompassed in the 30% retained by Creech. Creech, on the other hand, contends that the written lease was not intended to be the actual agreement between the parties and was merely used to meet the formalities of the Commission. Creech defended the lawsuit by contending that the lease was not intended to be the operating agreement between the parties, and that it is therefore unenforceable. Creech further contends that the actual operating agreement between the parties was an oral agreement that varied the terms of the written lease.

TRIAL COURT

In his written reasons for judgment, the trial judge found that the lease was a “fraud and a sham” and was merely a formality to side step the Commission’s regulations and rules. The judge further found the existence of an oral agreement but did not reach the issue of the validity and legality of the oral agreement. Rather, the trial judge dismissed Walker’s claim because Walker failed to prove the existence of an enforceable agreement between the parties, since the written lease was not intended to be a contract between the parties. From this judgment, Walker appeals, alleging four assignments of error. However, the crucial issue on which the resolution of this case turns is the validity and enforceability of the written lease on file with the Public Service Commission.

ENFORCEABILITY OF THE WRITTEN LEASE

The Public Service Commission has been given broad authority to regulate and control all motor carriers, including contract carriers. La.R.S. 45:161 et seq. The purpose of this authority is one of public policy which arises from the effect which the operation of these motor carriers on public highways has on the public interest. La. R.S. 45:161. To carry out its function, the Commission has the authority-to adopt and enforce reasonable rules and regulations governing the operation of motor carriers. La. Const. Art. IV, § 21(B); La.R.S. 45:163.

Pursuant to this authority, the Commission has enacted and adopted Louisiana Public Service Commission Order No. 9901 to establish rules and regulations for the leasing of vehicles by licensed carriers and to prohibit the “farming out” of operating rights under the guise of a lease. In addition to providing the minimum requirements which must be incorporated into such a lease, Order No. 9901 provides that each lease must be in writing and filed with the Commission. More importantly, the order provides as follows:

There may be no arrangement or understanding between lessee and lessor other than that fully set forth in lease (sic) agreement on file with the Commission. Louisiana Public Service Commission Order No. 9901, as amended.

This order, as any order issued by the Commission, should be enforced by the courts and should not be overturned absent a clear showing of abuse of power or that the order is arbitrary or capricious. Dixie Electric Membership Corporation v. Louisiana Public Service Commission, 441 So.2d 1208 (La.1983). Considering the strong public interest in rate regulation, highway safety, and the proper maintenance of liability insurance, we find that Order No. 9901, which regulates these concerns when a lease of a vehicle is entered into by a licensed carrier, is not arbitrary, i capricious or abusive of authority.

Under Order No. 9901 the Commission has determined that it is in the best interest of the public and in furtherance of its regulatory scheme to have no agreement between a motor carrier and the lessor of a vehicle other than that which meets the formal requirements set forth by the Commission and filed with the Commission as required. We find that public policy mandates that there be only one agreement between these parties, that being the agreement on file with the Commission. Otherwise, the entire regulatory scheme of the Commission could be thwarted and avoided by the parties entering into a side agreement which varies from the requirements set forth by the Commission. Therefore, a lease filed with the Commission, as required, is the agreement between the parties, regardless of what the parties say or do to the contrary. There can be no other agreement, regardless of the intent of the parties.

In the instant case, the parties entered into a valid written lease which fulfilled the Commission’s regulations and was filed with the Commission as required. This is the agreement between Walker and Creech and any other agreement is irrelevant and contrary to the Commission’s rules and regulations. Public policy mandates that this agreement be enforced.

INTERPRETATION OF “70% GROSS REVENUE”

Under the terms of the written lease, compensation to Walker was to be “70% gross revenue.” Creech has not contended that “gross revenue” is ambiguous or that this language meant 70% of the revenue derived from the truck’s use only, and not revenues from the use of Creech’s trailer. Rather, Creech has rested his entire case on the invalidity of the written lease as a contract and the existence of a separate oral agreement.

Since, as established above, the written lease is the only agreement between the parties and is to be enforced, we must determine the meaning of “gross revenue.” This term is not defined in the lease, and nowhere is it limited to revenues derived by the truck alone and not the trailers. No provisions of the lease provide that Creech was entitled to deduct an amount for the rental of the trailer before computing Walker’s 70%. We find that “gross revenue” means the total revenue derived from each shipment and is not limited to revenues derived from the truck alone. Especially is this true when considering that Creech is the party who prepared the contract, and any ambiguity in a contract is construed against the party who prepared the contract. Car Kits, Inc. v. Bolt-On Parts, Inc., 439 So.2d 479 (La.App. 1st Cir.1983). Therefore, Walker was entitled to 70% of the gross revenue per haul and not a lesser amount.

DAMAGES

The only remaining issue to be decided is the amount of damages due Walker for the breach of the lease. Walker asks for the difference between the amount he was paid and the amount which was actually owed him under the lease. In addition, Walker asks for damages which resulted from Walker’s having to borrow money to remain in business, which allegedly would not have been required had Creech paid him the correct amount under the lease.

Walker also asks for damages in the form of interest payments on loans which he was allegedly forced to borrow because Creech was underpaying him. Although Walker testified that he was forced to borrow this money because of the underpayment, there is no evidence in the record to establish that payment in full by Creech would have prevented the necessity of Walker’s borrowing of the money. None of Walker’s accounting files or bookkeeping was introduced into evidence. Also, there was no testimony in regards to these loans, other than Walker’s, and his testimony primarily dealt with the terms of the loan and not the basis for his need to borrow money. Thus, we conclude that the interest prayed for is not recoverable, as Walker has failed to adequately establish that these loans were the result of Creech’s underpayment.

Throughout the period that these leases were in effect, Walker relied on Creech to handle all billing and paperwork in regard to Walker’s trucks. Each week Creech would mail a listing known as a “settlement sheet” to Walker. These sheets contained a listing of the previous week’s activities which involved Walker’s trucks. Also included were listings of the invoice numbers for each haul, the purported gross revenue for each haul, and 70% of that figure as compensation for Walker. After suit was filed, Walker’s office was burglarized and all settlement sheets for the period prior to August of 1979, amongst other things, were stolen.

At trial, in an attempt to establish the amount of underpayment by Creech, Walker introduced the settlement sheets for the period from August 1979 to February 1980. In addition, Walker introduced all of the freight bills issued by Creech to customers, including the bills which represented hauls not handled by Walker’s trucks. Based on this, John Sharkey, Walker’s stepson who helped Walker in his business, was able to compare the freight bills, which represented the actual gross revenues, with the amount on the settlement sheets, which Creech represented as gross revenues. This enabled Sharkey to establish the amount of underpayment for the period from August 1979 to February 1980.

However, for the period prior to August 1979, no settlement sheets were available and the only evidence regarding the amount of underpayment was the testimony of Sharkey. Sharkey testified that he was able to compute an average amount of underpayment for the period from August 1979 to February 1980 by comparing the actual gross revenue in the freight bills to the amounts represented by Creech as gross revenue on the settlement sheets. Furthermore, by comparing the amounts charged for hauls made with Walker’s trucks with the total amount of freight bills issued by Creech to a particular customer, Sharkey was able to estimate the percentage of Creech’s business with that customer which was hauled by Walker’s trucks for the same period.

Based on testimony that the ratio between Creech’s business and the use of Walker’s trucks was the same for the period from January 1979 through July 1979 as it was from August 1979 to February 1980, Sharkey was able to apply his average and percentage to estimate the amount of underpayment for the period prior to August 1979.

Walker’s evidence regarding the amount of underpayment prior to August 1979 consists of the invoices issued by Creech to his customers, Sharkey’s testimony, and Shar-key’s computations for one of several companies. The invoices represent the total amount of Creech’s business, and it cannot be determined from the face of the invoices which bills represent hauls made by Walker’s trucks. Also, Sharkey’s testimony was based on estimates and guesses, and was very speculative and unclear. Furthermore, while Creech used Walker’s trucks to haul freight for six customers, the record contains Sharkey's computations regarding only one of these six customers. Other than for the period after August 1979, the record is indeterminate and too speculative to enable us to calculate a proper award.

While we realize that the best evidence to establish the amount of underpayments is missing, we are unable to determine a certain amount of losses due Walker from the evidence in the record. Calculations and computations are an adequate method of establishing damages, but such calculations and computations must be precise, certain and supported by sound reasoning, and not speculative and unclear.

What is needed in this case are accurate computations to establish the amount which was due Walker and the amount which was paid by Creech. Any pertinent documented evidence should also be utilized to establish these amounts. In establishing these amounts, an accurate calculation of the amount of Creech’s business handled by Walker should be established. These computations should be done separately for each of the six customers, as the computations will vary. Additionally, these computations should be documented for the entire period, as well as accurately explained by testimony.

Because of the lack of an adequate explanation of what constitutes the amount retained by Creech, of which Walker should receive 70%, we will remand this case to the trial court for the taking of further evidence, as needed, in order to determine those figures.

Since we have concluded that the written leases on file with the Commission are enforceable and that Walker was entitled to judgment based on the terms of the lease, we need not decide the other issues raised by Walker on appeal.

Therefore, for the above and foregoing reasons, the judgment of the trial court is reversed and remanded for further proceeding in accordance with the views herein expressed. The costs of this appeal are assessed to appellee.

REVERSED AND REMANDED.


author: JOHN S. COVINGTON, Judge Pro Tern.

text:
    GREAT SOUTHERN HOMES, INC. v. Roy H. HOLTEN, et ux.
    No. 83 CA 1209.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Writ Denied Jan. 25,1985.
    Dennis A. Pennington, Baton Rouge, for plaintiff-appellee Great Southern Homes, Inc.
    Robert C. Funderdurk, Jr. and David K. Johnson, Baton Rouge, for defendants-appellants Roy H. Holten and Cathy A. Hol-ten.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVINGTON , JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   JOHN S. COVINGTON, Judge Pro Tern.

This is a suit on a building contract for costs of “extras”. The trial court found for plaintiff and defendant appealed.

The issues are whether parol evidence can be used to vary the terms of an authentic act and the sufficiency of the proof of the “extras”.

We affirm.

Roy'and Cathy Holten, appellants herein, executed a purchase agreement, wherein Great Southern Homes, Inc. agreed to construct a home according to plans and specifications for $75,000.00. During the construction of the house, appellants initiated various changes which necessitated extra materials and labor. According to plaintiff, the cost of these “extras” amounted to $10,872.60. The parties passed the act of sale, conveying the property to the Holtens in exchange for the stated price of $75,-000.00. Great Southern Homes, Inc. filed this suit to recover the cost of the “extras”.

After a trial on the merits, the trial judge rendered judgment in favor of plaintiff in the amount of $4,653.22 with legal interest from the date of judicial demand. The trial judge listed the specific items included in his oral reasons for judgment.

Appellants’ first assignment of error is that the trial court erred by not applying La.C.C. arts. 2236 and 2276 to prohibit the use of parol evidence to vary the terms of the act of sale.

This assignment of error is without merit. Plaintiff did not seek to vary the terms of the act of sale but rather sought to establish an additional contractual basis for recovery. Since a building contract “need not be in writing, parol evidence is admissible to prove a subsequent verbal agreement, or to modify or even abrogate a written construction contract.” Murphy v. Sherman Homes, Inc., 394 So.2d 1306 (La.App. 1st Cir.1981), Anzalone v. Gregory, 334 So.2d 504 (La.App. 1st Cir.1976). Furthermore, the trial court in its oral reasons for judgment, specifically stated that his judgment for the “extras” was not based on any oral agreements between the parties, but rather that the basis for his judgment was the doctrine of unjust enrichment.

Appellants’ next assignment of error is that the trial court erred by accepting plaintiff’s unsupported assertions that collateral agreements existed regarding payments beyond that stipulated in the authentic act of cash sale.

The contractor has the burden of proof to show that the owner authorized the extra work and materials, that they were furnished and their value. Master Maintenance Engineering, Inc. v. McManus, 292 So.2d 284 (La.App. 1st Cir.1974).

The record supports the conclusion that plaintiff met this burden of proof. There is no question that the “extras” that were included in the trial court’s judgment represented additions to the original contract. Furthermore, these items were requested by appellants. Plaintiff presented invoices for all of the “extras” that were allowed .by the trial court, except for two items. As for these items, the record clearly establishes that these two “extras” were furnished by appellee at appellants’ request. We find no manifest error in the trial court’s findings. Accordingly, we affirm the trial court’s award for the “extras” in the full sum of $4,653.22. All costs are assessed against the appellants.

AFFIRMED.