text:
    Clint T. ADAMS, Plaintiff-Appellee, v. Pamela Anne ADAMS, Defendant-Appellant.
    No. 15848-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.

      Sherburne Sentell, Minden, for defendant-appellant.
    Hal V. Lyons, Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   HALL, Judge.

The mother appeals from a judgment of the district court “awarding joint custody of the minor child of the marriage, Lydia Michelle, unto Pamela Anne Adams and Clint T. Adams, with Clint T. Adams being recognized as the domiciliary parent, subject to reasonable visitation of Pamela Anne Adams” and rejecting the mother’s demands for alimony, child support, and contempt. Finding that the judgment of the district court does not comply with the joint custody provisions and requirements of LSA-C.C. Art. 146, we reverse and set aside the judgment and remand the action to the district court for reconsideration and redetermination of the custody and child support issues. We further render judgment awarding Mrs. Adams alimony pen-dente lite.

In these consolidated actions, Mr. Adams seeks a separation on the grounds of cruel treatment and custody of the parties’ daughter, 14 months old at the time this litigation commenced in January 1983. Mrs. Adams seeks a separation on the grounds of abandonment, joint custody of the child with her as custodial or domiciliary parent, child support, alimony pendente lite, and to have Mr. Adams held in contempt for violating a court order relative to her use of the matrimonial home.

After summary trial of the custody, child support, alimony, and contempt issues, the district court found that because of Mrs. Adams’ excessive interest in and time devoted to a new employment relationship and Mr. Adams’ assumption of the primary responsibility for caring for the child during an approximately three-month period prior to the parties’ separation in January 1983, Mr. Adams should be named as domiciliary parent. No child support award was made. The court denied alimony pendente lite, finding that Mrs. Adams had sufficient income from her salary and advances made to her by her employer to maintain a life style substantially similar to that of her husband. The court further found that the incident wherein Mr. Adams changed the locks on the home in which Mrs. Adams was living did not justify a finding of contempt.

Judgment was rendered awarding joint custody and naming Mr. Adams as domiciliary parent with Mrs. Adams to have reasonable visitation privileges, and rejecting Mrs. Adams’ demands for alimony and child support. Mrs. Adams appealed. Mr. Adams did not appeal or answer the appeal.

On appeal, Mrs. Adams contends that the trial court abused its discretion in denying the mother domiciliary custody of her now 20-month-old daughter, and in refusing to award child support and alimony pendente lite. She argues that the decision of the trial court was based on past fault of the mother and not on the best interest of the child or the mother’s present situation. Mrs. Adams further argues that the judgment does not recognize her full rights as co-tutor, which should be defined in more detail. It is argued that' the court erred in finding she had sufficient income to meet expenses and maintain her life style because she had been able to do so only through loans from her employer. Finally, she complains of the failure of the trial court to hold Mr. Adams in contempt.

The evidence discloses that Mr. Adams is an automobile mechanic or technician with normal work hours. Mrs. Adams was formerly in the Air Force, but left the service about the time her child was born. In October 1982, while attending business school, she started working part-time for her present employer, who has varied business interests, including farming, oil and gas, and commodity trading. Mrs. Adams began to work full-time and while learning the employer’s business frequently worked until 7:00 or later in the evening, and traveled on business trips out of town with her employer on several occasions. Mr. Adams did not object to her efforts to develop a career, but began to object to her hours and relationship with her employer. He took over the primary responsibility for caring for the small child, including frequently preparing supper, putting her to bed, and the like. He enjoys the domestic tasks and does them well.

The marriage had been suffering for a good while and deteriorated further after October 1983. In January, Mr. Adams left home and took the child with him. This litigation ensued.

Custody

The trial court found that Mrs. Adams had become obsessed with her employment relationship and was away from home a great deal to the detriment and neglect of her child. The court also found that Mr. Adams was doing an excellent job of caring for the child and that it was in the best interest of the child for Mr. Adams to have physical custody of the child.

If this case were being considered under the law as it existed prior to the 1982 amendment to LSA-C.C. Art. 146, when it was considered necessary to choose which parent should have sole custody of the child, this appellate court might defer to the trial court’s much discretion and affirm the award of physical or domiciliary custody to the father as being in the best interest of the child by the narrowest margin favoring custody in the father at this particular time in the lives of the involved persons. We hasten to add, however, that the evidence in this case discloses that both parents are entirely capable and fit to have custody and to care for the child. Each parent testified that the other loves and cares for the child. Mr. Adams testified that Mrs. Adams was a good mother and cared well for the child until she began spending what he regarded as too much time with her employment.

It is not, however, necessary under present law to award exclusive physical custody of the child to either one of the parents. The law governing child custody was drastically changed by the enactment of Act 307 of 1982 amending LSA-C.C. Art. 146, effective January 1, 1983. Amended Article 146 provides that custody shall be awarded, according to the best interest of the child, to both parents jointly as the first preference. The article establishes a rebut-table presumption that joint custody is in the best interest of a minor child. The article defines “joint custody” as meaning “the parents shall share the physical custody of children”, subject to any plan of implementation, and shall enjoy the natural co-tutorship of the children. “Physical care and custody shall be shared by the parents in such a way as to assure a child of frequent and continuing contact with both parents.”

In Plemer v. Plemer, 436 So.2d 1348 (La.App. 4th Cir.1983), a recent decision dealing with joint custody under the new law, Judge Barry’s perceptive opinion notes:

“We interpret ‘joint custody’ to mean a physical sharing of the child in addition to both parents participating in decisions affecting the child’s life — e.g., education, medical problems, recreation, etc. . ..
“... We don’t interpret joint custody to mean a fifty-fifty sharing of time. Each case will depend on the child’s age, the parents’ availability and desires, and other factors. ... ”

Article 146 provides that the court shall, unless waived by the court for good cause shown, require the parents to submit a plan for implementation of the court order, or the parents individually or in concert may submit a plan. The plan may include “domiciliary arrangements for the child” as one of considerations. In the Plemer case, a detailed plan of joint custody was structured whereby the mother had physical custody of the school-age daughter for nine months during the school year, with the father having the child during weekends. For the other three months, the father had physical custody with the mother sharing weekends. Holidays and special occasions were spelled out.

The procedure followed and the judgment rendered in the case now before us do not comply with or give effect to the joint custody provisions of Article 146.

The article requires that a plan be filed unless waived by the court for good cause shown. There was no showing of any reason why a plan should not have been filed in this case, and the filing of such a plan should have been required.

The judgment in this case awarding joint custody but naming one parent as “domiciliary parent” with the other parent having reasonable visitation rights is not truly joint custody. The judgment is in effect no different than the award of sole custody to one parent under the law as it formerly existed, except for the co-tutorship and exchange of information provisions of the article which by implication would be part of the judgment. The judgment ignores, without explanation or reasons, the express mandate of the article that the parents “share the physical custody” of the child and that “physical care and custody shall be shared by the parents.”

While shared physical custody does not necessarily mean a fifty-fifty sharing, no reason is presented in this case why the parents, both entirely suitable and capable, should not share physical custody of the less than two-year-old child on a substantially equal basis, or that “domiciliary arrangements” should not be such that the child lives with each parent for substantially equal periods of time. There may be reasons why the child should live with one of these parents more of the time than with the other, but any such reasons do not appear in the record of this case, which was tried and decided without due regard for the considerations outlined in Article 146 which are at the heart of a workable plan of joint custody.

Accordingly, the judgment of the district court will be reversed and set aside and this action will be remanded to the district court for redetermination and reconsideration of the award of custody and implementation of a plan for joint custody with provisions for a sharing of physical care and custody with appropriate allocation of the time periods each parent shall enjoy physical custody of the child and the legal authority, privileges, and responsibilities of the parents, all in accordance with LSA-C.C. Art. 146 as last amended by Act 695 of 1983.

Child Support

A joint custody judgment providing for the sharing of physical custody may well call for the payment of some child support. Accordingly, the judgment of the district court rejecting appellant’s demand for child support is reversed and set aside, and the issue of child support should be reconsidered upon remand.

Alimony Pendente Lite

Mr. Adams earned $24,727 in 1982. At time of trial he was earning $1,600 to $1,800 per month. His expenses are $1,161 per month without the child and $1,421 with the child.

Mrs. Adams earns $220 per week or an average of $946 per month. She is also to be paid a 5 percent commission on commodity trade profits but had not earned any commissions at time of trial. Her expenses are $2,100 per month without the child and would be $2,400 per month with the child.

Since the parties separated, Mrs. Adams’ employer has loaned her $2,700 for attorney fees, $50 for groceries, $1,000 for the down payment on a new automobile, and he cosigned her note on the car. She is to repay the loans as she is able out of future commissions.

In determining that Mrs. Adams has sufficient income to maintain herself in a standard comparable to that of her husband, the trial court must have considered the advances to Mrs. Adams from her employer as earned income or emoluments of her employment. The evidence does not warrant such a conclusion. The evidence discloses that Mrs. Adams does not have sufficient income to meet her reasonable expenses.

Under LSA-C.C. Art. 148, if a spouse does not have sufficient income for maintenance pending suit for separation, the claimant spouse may be allowed a sum for support proportioned to the needs of the claimant spouse and the means of the other spouse. In this case, the husband’s income is twice that of the wife, and his expenses are less. Considering her needs and his means and ability to pay, alimony pendente lite should have been awarded in at least the amount of $200 per month. The judgment rejecting Mrs. Adams’ demand for alimony pendente lite will be reversed and judgment will be rendered ordering Mr. Adams to pay alimony pendente lite in the amount of $200 per month, effective May 1, 1983, with payments to be made on the first day of each month.

Contempt

The trial court found the incident giving rise to the contempt rule to be relatively insignificant, and declined to hold Mr. Adams in contempt. The court’s discretion was soundly exercised in this respect.

Decree

For the reasons assigned, the judgment of the district court is reversed and set aside insofar as it relates to custody of the minor child and insofar as it rejected appellant’s demands for child support and alimony pendente lite. The action is remanded to the district court for reconsideration and redetermination of the custody and child support issues, and for implementation of a plan of joint custody. Judgment is hereby rendered ordering Clint T. Adams to pay to Pamela Anne Adams the sum of $200 per month as alimony pendente lite, effective May 1, 1983, payable on the first day of each month. Otherwise, the judgment is affirmed. Assessment of the costs of the appeal shall await final determination of the pending litigation.

Affirmed in part; reversed and rendered in part; and reversed and remanded in part.

      . The civil code article has been further amended since judgment was rendered in this case by Act 695 of 1983, effective August 30, 1983. This appeal is considered under the law applicable at the time the appealed judgment was rendered and references in this opinion are to the article prior to the 1983 amendment. However, upon remand, reconsideration of the custody issue will be governed by Article 146 as amended in 1983.


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    Deinna Jean CARROWAY, Plaintiff-Appellee, v. Ronald Dean CARROWAY, Defendant-Appellant.
    No. 15849-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.

      Love, Rigby, Dehan, Love & McDaniel by William G. Nader, Shreveport, for defendant-appellant.
    James L. Fortson, Shreveport, for plaintiff-appellee.
    Before PRICE, SEXTON and NORRIS, JJ.
   PRICE, Judge.

This is a suit for modification of a custody decree. The father who seeks the change appeals the trial court judgment, contending the court erred in accepting the mother’s plan of implementation in preference to his plan, and abused its discretion in awarding “residential custody” of the child to the mother. The central issue is whether the judgment as rendered comports with the provisions of the new joint custody law enacted by the legislature.

The parties were divorced in 1981 at which time custody of their son Robert, now age 5, was awarded to the mother. The father filed this suit for joint custody soon after the effective date of the amendment to La.C.C. Articles 146 and 157, mandating the preference of joint custody for separated or divorced parents of minor children. The parties agreed that a joint custody arrangement should be implemented and it was stipulated that both parties are of good moral character, each is a good parent to the child and both wish to spend as much time as possible with him.

Both parties submitted implementation plans for the court’s consideration. Appellant’s complaint is limited to the residence schedule adopted by the court. The father’s plan provided for alternating of the physical custody of the child from one parent to the other every three months during the 1983 calendar year with visitation privileges for the “noncustodial” parent on alternating weekends. It further suggested increasing the periods of residential custody from three months to four months beginning January 1, 1984.

The mother’s plan was adopted by the trial court with a few minor alterations. The judgment rendered in accordance with this plan awards custody to the parents jointly, but provides that the child is to reside permanently with his mother. The father was awarded specified visitation of alternate weekends, alternate holidays at Thanksgiving, Easter, July 4th, and Labor Day, four days during the Christmas holiday season, Father’s Day, alternate birthdays, and three weeks during the summer. Mr. Carroway contends the judgment is not a true joint custody award and the trial court abused the discretion accorded it by La.C.C. Articles 146 and 157.

Where a change of custody is sought after an original award, permanent custody of the child shall be granted to the parents in accordance with La.C.C. Art. 146. See La.C.C. Art. 157. Article 146 provides that a custody award shall be made according to the best interest of the child, with first preference to awards of joint custody. It is presumed that joint custody is in the best interest of the child unless the parents agree to an award of custody to one parent or proof is submitted to show that such an award would not be in the child’s best interest.

The critical provision of the article in terms of the instant case is found in Section D, as amended by 1983 Acts, No. 695, which reads as follows:

For purposes of this Article, “joint Custody” shall mean the parents shall, to the extent feasible, share the physical custody of children of the marriage. In making an award of physical custody, the court shall consider, among other things, the factors enumerated in Paragraph (C)(2). Joint custody shall also mean that the parents shall enjoy the natural cotu-torship of such children in accordance with Article 250, subject to the plan of implementation effected pursuant to Paragraph A of this article. Physical care and custody shall be shared by the parents in such a way as to assure a child of frequent and continuing contact with both parents. [Emphasis added]

The record before us provides no factual basis for an intelligent determination as to what kind of residential arrangement would be in the best interest of this child. We note that the stipulation entered by the parties is in effect an admission that the parties are basically equal with respect to certain of the enumerated factors to be considered in the awarding of physical custody, such as emotional ties between parent and child, capacity to give the child love and affection, guidance and education in religion, capacity to furnish the child with material needs and the moral, mental, and physical fitness of the parties. The record is devoid, however, of any indications of the home, school, and community record of the child. See Article 146(C)(2). Nor has the trial judge provided us with any reasons for ruling as he did.

The judgment allows this father physical contact with his child approximately 83 days out of the year. Under the former rule of sole custody in one parent, visitation privileges of comparable frequency have been held not to constitute divided custody, except where the parents lived long distances from each other. See D’Armond v. D’Armond, 405 So.2d 1231 (La.App. 1st Cir.1981); Pate v. Pate, 348 So.2d 1338 (La.App. 3d Cir.1977); LeBouef v. LeBouef, 325 So.2d 290 (La.App. 4th Cir.1975). Cf. Johnson v. Johnson, 357 So.2d 69 (La.App. 4th Cir.1978), writ denied 359 So.2d 197 (La.1978). It has been recognized that visitation rights which constitute divided custody in one instance might not constitute such in another. The particular facts in each case must be considered. Doherty v. Mertens, 326 So.2d 405 (La.App. 3d Cir.1976).

As pointed out by the Fourth Circuit in the recent case of Plemer v. Plemer, 436 So.2d 1348 (La.App. 4th Cir.1983), joint custody means a physical sharing of the child in addition to both parents’ participation in decisions affecting the child’s life. However, it does not necessarily mean a fifty-fifty sharing of time. Each case will depend on the child’s age, the parents’ situations, and other factors relevant to a particular child custody dispute. See La.C.C. Article 146(C)(2).

We recognize that the trial court has much discretion in setting the limits of a joint custody arrangement. However, on its face the trial court judgment merely pays lip service to the legislature’s pronouncement on joint custody by calling it an award of joint custody, while denying the father the frequent and continuing physical contact which it was intended that both parents should have. That is not to say that we approve of the father’s plan for moving the child from household to household every three months either. We have noted that a fifty-fifty sharing is not required, and in many cases will not be feasible or beneficial. However, we do feel that in some cases it would not be detrimental to allow the father longer and more frequent periods with his child, at least during off-school time.

In any event, the best interest of the child remains the major concern in determining the degree of physical sharing to be granted in each case. The scant information in the record reveals nothing regarding the child’s school situation, which is one of our primary concerns, the daily schedules of the parents, or the possible effect on the child of allowing longer periods of time with the father.

We are unable for this reason to determine specific changes which should be made in the residence schedule in order to comport with the statutory mandate to allow both parents frequent and continuing contact with the child to the extent feasible, since such a finding must also serve the best interest of the child. We therefore vacate the judgment appealed and remand this matter to the district court for adducement of additional record evidence and further proceedings consistent with the views expressed in this opinion.

REMANDED.


author: MARVIN, Judge.

text:
    Roland V. McKNEELY, Jr., Plaintiff-Appellant, v. DON COLEMAN CONSTRUCTION CO., INC., et al., Defendants-Appellees.
    No. 15851-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.
    Rehearing Denied Dec. 22, 1983.

      James M. Bullers, Benton, for plaintiff-appellant.
    James G. Cowles, Jr., Shreveport, for defendant-appellant, James Robert Ebler.
    Rountree, Hicks & Cox by Gordon E. Rountree, Shreveport, for defendant-appel-lee, Don Coleman Const. Co.
    Miller, Titone, Dawson & Askew by Frederic L. Miller, Shreveport, for defendant-appellee, James Mohr & James D. Johr & Assoc.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

In this redhibition action arising out of a defective foundation of plaintiff’s home, plaintiff McKneely and his vendor, Ebler, appeal a judgment which sustained exceptions of prescription filed by third party defendants, Coleman, the builder of the home who sold to Ebler, and Mohr, the engineer who designed the foundation.

Coleman built the home as a speculative house in 1976 with a “post-tension” foundation designed by Mohr. Coleman eventually sold the home to Ebler in December 1976. Within a year the brick veneer developed cracks and Ebler complained to Coleman. The foundation was discovered to have failed in part and Coleman undertook to repair the home and to “underpin” one corner of the foundation. On January 4, 1978, Coleman wrote Ebler that

“repairs have been made on your foundation .. . should you have ... need for further repairs, please advise.”

Ebler experienced no further problems with the foundation.

On March 1, 1979, and because of a military transfer, Ebler sold the home to McKneely. No mention was made of the prior foundation problem because Ebler and Coleman assumed the defect in the foundation was permanently corrected. In the fall of that year, further foundation failure caused cracks to appear in the brickwork, the interior walls, and doors and windows to jam. McKneely sued Ebler and Coleman on February 28, 1980. Ebler then brought a third party demand against Coleman, and after Coleman brought a third party demand against Mohr, Ebler joined Mohr as a third party defendant. The exceptions of prescription filed by Coleman and Mohr were referred to the merits.

The trial court found that the foundation failure was caused by the design of Mohr and not by the workmanship of Coleman. Substantial evidence supports this finding. Judgment was rendered in favor of McKneely and against Ebler for the cost of repair ($6,860.00) and the exceptions of prescription filed by Coleman and Mohr were sustained and the demands against them were rejected.

On appeal, McKneely contends that prescription was interrupted by Coleman’s attempt to repair the defects and that this attempt was never abandoned by Coleman. Additionally, McKneely seeks attorney fees under CC Art. 2545.

Ebler also contends that Coleman’s attempts interrupted prescription and were never abandoned and he further contends that judgment should be rendered against Mohr on his third party demand under the rules of indemnity.

Coleman answered the appeal, contending that he should have judgment over and against Mohr in the event he is cast here.

In this action we apply the redhibi-tory articles of the civil code (Arts. 2520-2548) and not the articles that apply to a builder who has undertaken to build by the job (Arts. 2756-2777). The home built by Coleman was a speculative house and was not built for Ebler. DeSoto v. Ellis, 393 So.2d 847 (La.App. 2d Cir.1981). Hermeling v. Whitmore, 140 So.2d 257 (La.App. 1st Cir.1961).

Where the seller has actual or constructive knowledge of a latent or hidden defect, the one year prescriptive period applicable to redhibition begins to run from the discovery of the defect. CC Arts. 2534, 2545, 2546. This prescription is interrupted by the vendor’s attempt to repair the defect and begins to run anew when the vendor abandons any attempt to repair. Where the vendor is presumed to know of the defect, as in the case of a manufacturer or builder, and believes the defect has been corrected by his repair, prescription does not begin to run until discovery of the reappearing defect. Brown v. Dauzat, 157 So.2d 570 (La.App. 3d Cir.1963); Hermeling, supra.

DeSoto v. Ellis, supra, upon which the trial court relied as authority to sustain the exceptions of prescription, does not produce a different result. There Shreve Land Company built a speculative house and later sold it to Thompson in 1971, who sold to Crawford in 1974, who sold to Ellis in 1977, who sold to DeSoto a few months later. Foundation defects were discovered in 1976 and Crawford undertook to repair the defects through his realtor, Cloyd, and his engineer, Mohr. Three months before Crawford sold to Ellis, Mohr wrote Cloyd that the work on the house had been completed and that the house was safe and would not settle. Seven months later, and when DeSoto owned the house, the foundation defect reappeared. On July 13, 1978, DeSoto sued Ellis, Crawford, the realtor, Cloyd, and the builder, Shreve Land Company. Shreve Land Company pleaded the one year prescription from date of discovery of the defect. We affirmed the sustaining of that plea, stating,

“the latent defect ... was discovered in October 1976. [DeSoto’s] ... predecessors in title had one year from that date to institute their redhibitory action ... plaintiff acquired that right. Since [De-Soto’s] suit was not filed until July, 1978, the one year prescriptive period has elapsed.” 393 So.2d at p. 850.

In footnote 6, we observed that because “more than one year elapsed between the time that Crawford attempted to remedy the defect and the filing of [DeSoto’s] suit, we [were] not confronted with the question of whether that [attempt] served to interrupt ... prescription.” Here, the builder, Coleman, is presumed to know the defects in the house, and here, he attempted the repair and believed the repair succeeded. In these circumstances, prescription was interrupted or began to run anew when the defect reappeared in October 1979. Brown, Hermeling, supra. McKneely’s action, filed on February 28,1980, was timely. Under CC Art. 2503, McKneely is subrogat-ed to his vendor’s rights and actions in warranty against others. DeSoto, supra; McEachern v. Plauche Lumber & Construction Co., 220 La. 696, 57 So.2d 405 (1952). Ebler’s third party demand against Coleman, filed on April 16, 1980, was also timely-

MOHR’S PLEA OF PRESCRIPTION

Coleman’s liability and Ebler’s liability result from the fault of Mohr. These claims against Mohr are for indemnity.

“The rule of indemnity ... is founded upon the general obligation to repair the damage caused by one’s fault (La.Civ. Code Art. 2315) and the moral maxim that ‘no one ought to enrich himself at the expense of another.’ La.Civil Code Art. 1965. More specific authority is found in La.Civ.Code Articles 1930, 2106 and 2767.” Bewley Furniture Co., Inc. v. Maryland Casualty Co., 285 So.2d 216, 220 (La.1973).

Prescription on a claim for indemnification does not begin to run until the party seeking indemnification (Coleman, Ebler) has been cast in judgment. Blue Streak Enterprises v. Gulf Coast Marine, 370 So.2d 633 (La.App. 4th Cir.1979).

ATTORNEY FEES

Attorney fees are allowed under CC Art. 2545.

This trial occurred on September 8, November 16, and November 17,1982. The record contains about 70 pages in pleadings and about 400 pages in transcript of testimony. About 30 exhibits were introduced and expert testimony was adduced. As this opinion reveals, the critical issues primarily relate to the third-party demands. Under the circumstances and considering the amount awarded and the other factors mentioned, we deem $3,000 to be a reasonable attorney fee.

DECREE

We reverse the judgment insofar as it rejected the third party demands and hereby render judgment overruling the pleas of prescription. We amend the judgment to award McKneely the cost of repair ($6,860) against Ebler and Coleman, in soli-do; to award Ebler judgment against Coleman and Mohr for all amounts which Ebler may be required to pay under this judgment to McKneely; to award McKneely the amount of $3,000 in attorney fees under CC Art. 2545, against Coleman; and to award Coleman judgment against Mohr for all amounts which Coleman may be required to pay under this judgment to either McKneely or to Ebler. The judgment is further amended to cast Mohr for all costs, including the costs of this appeal. We affirm the judgment insofar as it awarded the cost of repair against Ebler and insofar as it set expert witness fees. We reverse and amend the judgment in the respects mentioned.

AFFIRMED in part, REVERSED in part, AMENDED, and RENDERED.


author: SEXTON, Judge.

text:
    In re MAY, Applying For Adoption.
    No. 15859-CAJ.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.

      John C. Blake, Jonesboro, for appellee.
    Appellant, in pro. per.
    Before PRICE, MARVIN and SEXTON, JJ.
   SEXTON, Judge.

The natural father of the two minor children who are the subject of this adoption proceeding appeals the ruling of the trial court which severed his legal ties to his children who are six and seven years old. The names of the parties involved have been omitted in the title and in this opinion in accordance with LSA-R.S. 9:437. We affirm.

In pursuing this appeal, appellant presents six specifications of error. Specifications I and IV and VI present basically the same issue which is the most serious in the case, and will be discussed subsequently.

In specifications II and III, appellant respectively complains that the trial court failed to issue requested subpoenas duces tecum, and also complains that he was denied the opportunity to cross-examine his former wife, the mother of the two children who are the subject of the proceeding.

Appellant contends that he requested issuance of a subpoena requiring the Rapides Parish Jail to produce his arrest and incarceration records, and also that he requested that a subpoena be issued to the Huey P. Long Hospital for all records relating to any admittances he might have had there. The record does contain three requests for subpoenas duces tecum by appellant which are not stamped filed and contain no date. These requests seek incarceration information from the Rapides Parish Jail, and admittance information from Huey P. Long Memorial Hospital in Pineville, Louisiana and Central State Louisiana Hospital in Pineville, Louisiana. The only subpoena we were able to locate in our review of the record is one sent to Wade Correctional Center, where appellant is incarcerated, seeking records of appellant’s earnings during incarceration and all records pertaining to any current or previous incarcerations related to him. Also contained in the record, labeled as Exhibit F — 1, is a Louisiana Department of Correction Master Prison Record containing two sheets which relate to this appellant. We find no hospital records in this appellate record.

However, the appellant does not indicate in what fashion the prison record of his incarcerations is incomplete, nor does he tell us how he was prejudiced by the lack of hospital records. Also, with respect to this issue, and particularly with respect to the complaint about the disallowance of cross-examination of appellant’s former spouse, we are unable to determine what occurred during the trial of the cause, as the proceedings were not transcribed.

While Article 1, Section 19 of the Louisiana Constitution of 1974 would seem to require that the proceedings be transcribed, appellant apparently did not complain of the failure of the trial court to transcribe the evidence. In his extensive brief to us, he has not indicated that he requested that the evidence be transcribed in accordance with LSA-C.C.P. Art. 2130. We presume that his failure to object operates as a waiver of the transcription. Rights of judicial review and free access to the courts are not totally without legislative regulation. Thus, the Legislature has authority to prescribe reasonable rules governing the exercise of certain rights. Something Irish Co. v. Rack, 333 So.2d 773 (La.App. 1st Cir.1976). The Legislature has done so with respect to the transcription of civil appeals and we do not find that the Article is in contravention of the constitutional provision.

Where there is no transcript the trial court’s judgment is presumed to have been supported by competent evidence. Clark v. Clark, 411 So.2d 548 (La.App. 1st Cir.1982). Where as here, there are extensive reasons for judgment, those reasons may be used in lieu of the transcribed testimony. Robinson v. Jackson, 255 So.2d 846 (La.App. 2d Cir.1971), writ denied, 260 La. 700, 257 So.2d 155 (1972).

Therefore, in summary, we find no merit to appellant’s contentions concerning failure of the subpoenas to issue, or with respect to the alleged denial of cross-examination. While we are not able to precisely judge appellant’s contentions in this respect because of the lack of a transcript, that lack is attributable to him. Moreover, and just as importantly, appellant does not complain of what it is that he wished to prove by the subpoenas which were not issued. He does not tell us how any lack of hospital or incarceration records has prejudiced his case.

Furthermore, with respect to the issue of cross-examination, appellant only complains that he wanted to cross-examine his former wife in an effort to prove that he lived with her after the divorce and, as a result, was both visiting with and supporting the children at that time. Even accepting appellant’s contention in this respect as a fact for the sake of argument, we are unable to discern that this fact would have assisted him in this cause. These parties were divorced in 1977, some six years ago, and it is only the relatively recent period of the last two years which are of real importance here. Since petitioner and the natural mother have been married for over three years, it is apparent that this circumstance, even if true, occurred so long ago as to be of no assistance to appellant. •

Appellant’s Specification of Error No. V complains that appellant was denied the assistance of an inmate as his counsel at this civil proceeding. Appellant is currently incarcerated at the Wade Correctional Institute as a result of a burglary conviction, and is indigent. Appellant is not entitled to assistance of an inmate as his counsel in a civil proceeding. He is not even entitled to an appointed attorney. See State v. Stafford, 394 So.2d 1287 (La.App. 1st Cir.1981). Furthermore, there is no allegation that appellant was denied counsel of his choosing or that he was prevented from obtaining the assistance of civil indigent counsel.

The principal issue in the cause is presented by appellant’s Specifications of Error Nos. I, IV and VI. Specification of Error No. I essentially contends that the stepfather seeking this adoption had no authority to proceed under LSA-R.S. 9:422.1. No. IV contends that nothing in the aforementioned statute requires the court to grant the adoption simply because the technical conditions are met. Specification No. VI asserts that the court erred in not considering appellant’s involuntary incarceration as a just cause for failure to provide support. Thus all of these complaints essentially assert that the trial court was in error in its application of LSA-R.S. 9:422.-1.

The statute clearly provides that where, as here, the party seeking adoption is the spouse of a legitimate parent that the consent of the other legitimate parent to the adoption is unnecessary if that parent has refused without just cause to comply with a court order of support for a period of one year, or if the other parent has failed to communicate or visit with the children without just cause for a period of two years.

In written reasons for judgment, the trial court found that appellant and the children’s mother were divorced in April of 1977 with the mother being granted custody and appellant ordered to pay $250 per month for support of the children. Appellant was incarcerated in the Rapides Parish Jail from March of 1978 until sometime in September of 1979. He was reincarcerated in June of 1980 and has so remained. The trial court also found that the mother and petitioner were married in June of 1980 and have had continuous custody of the children since that time.

The trial court noted that the children’s mother testified that appellant had only paid a total of $250 in child support since April of 1977, the last payment being $50 in December of 1979. The children’s mother and petitioner also testified that appellant had not communicated, visited or attempted to communicate with the children for over two years. There have been no cards, letters, or gifts sent the children during that period of time.

Appellant conceded that he did not pay any personal support for the children in excess of that testified by his. former spouse, but urged his incarceration as an excuse. The appellant also conceded that he had not communicated or attempted to communicate with the children for over two years. He stated, however, that he had “just cause” for not doing so in that in 1980 his mother had tried to visit the children and had received a cool reception from their mother and the petitioner.

The trial court found that appellant’s involuntary incarceration was not just cause for his failure to provide support because his commission of the offense for which he was incarcerated was not shown to be involuntary. While the trial court recognized that appellant was unable to visit the children because he was in jail, his failure to communicate was not thereby excused. The court labeled the failure to communicate because of the alleged treatment of appellant’s mother as “a feeble excuse.” The trial court noted that the petitioner was at liberty for nineteen months between the divorce in April of 1977 and his second incarceration in June of 1980, and only paid $250 during that entire period of time. The court thus held that he had failed to provide support for a period of one year.

The trial court further found that the adoption was clearly in the best interest of the children, noting that petitioner is an attorney, a regular church member, and that the report of the Department of Health and Human Resources reflects that petitioner’s home is “exemplary.”

As we appreciate it, the three specifications of error of the appellant previously referenced with which we now deal, can be summarized as contending that LSA-R.S. 9:422.1 is in derogation of natural rights and should be strictly construed; that adoption is not in the best interest of the children; and that appellant was justified in his failure to communicate and to pay support.

Of course, appellant is correct that the statute in question is to be strictly construed. Adoption of Rapp, 348 So.2d 107 (La.App. 4th Cir.1977). It is also correct that even if failure to support has been proven, the court still must determine that adoption, and thus the severance of- the filial ties with the natural parent, are in the best interest of the children. In Re Hinton, 390 So.2d 972 (La.App. 2d Cir.1980). Furthermore, it is not sufficient to simply examine the love and home environment provided by the petitioner. It is also necessary to determine the closeness of the child’s ties with the non-custodial parent and the effect this loss would have on the child. In Re Glass, Applying for Adoption, 424 So.2d 383 (La.App. 2d Cir.1982).

It is clear from the opinion of the trial court that the home environment provided for the children by petitioner is excellent. While the trial court did not examine the relationship between the children and the natural father, it is also clear that there is no relationship to evaluate. It is apparent that it is in the children’s best interest to be adopted by petitioner. We must therefore determine whether appellant’s failure to communicate or support was justified — for if not, his consent is unnecessary.

Appellant has been convicted of the offenses of forgery and burglary and has been at liberty only 19 months since his divorce from the children’s mother. The circumstance of his incarceration is certainly detrimental to his relationship to the children. Of course, his failure to visit the children since his incarceration cannot be attributed to him. However, his failure to communicate with the children is certainly chargeable to him. We would think that a father situated such as this who had a real concern for his children would recognize that, in order to maintain a relationship under these circumstances, an extra effort is necessary. It is obvious that petitioner has indeed failed to communicate with the children for over two years, and there is no just cause for that failure.

Furthermore, it is apparent that the father was not justified in failing to support these children. Support in the context of LSA-R.S. 9:422.1, which the parent must provide in order for his consent to adopt to be necessary, is termed as “significant” support. While each case must be viewed in light of its particular circumstances, significant support has been defined as being something only in the range of twenty to thirty percent of the alimentary obligation. Haynes v. Mangham, 375 So.2d 103 (La.1979); DeRosier v. Dean, 378 So.2d 588 (La.App. 3d Cir.1979).

Furthermore, in In Re Brannon, 340 So.2d 654 (La.App. 2d Cir.1976), this court held that extended incarceration for a serious offense is not just cause for failure to support. We are aware that Fourth Circuit distinguished Brannon in Adoption of Rapp, supra, which was a burglary conviction with a sentence of eight years incarceration. However, Brannon admonishes that each case is to be judged on its own particular circumstances. We thus hold that under the circumstances here presented the appellant has not provided significant support in accordance with LSA-R.S. 9:422.1 such that his consent is required for adoption. Some 79 months have elapsed from the date of the divorce of these natural parents until now. The defendant has been incarcerated for two separate offenses for about 60 of these months, or approximately 75% of the time. His last payment was only $50. It was made in December of 1979 and raised his total payments since the divorce to only $250, which is the total support awarded for only one month. He was not jailed on the second occasion until some seven months after the last payment. Under these circumstances we have no difficulty finding that the defendant has not provided significant support for one year, nor is his failure to do so excused by his incarceration.

Therefore, in summary, we find that the record shows that the appellant has neither communicated with or supported the children who are the subject of this cause within the periods required, and that these failures are without justification. His consent to the adoption is therefore unnecessary under the provisions of LSA-R.S. 9:422.1 and the adoption of the children by the stepfather/petitioner is in their best interest. For these reasons the judgment appealed from is affirmed.

AFFIRMED.

      . Article 1, Section 19 of the Louisiana Constitution of 1974 states:
      “No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived. The cost of transcribing the record shall be paid as provided by law.” LSA-R.S. 9:437, which requires adoption proceedings to be heard in Chambers with no persons present other than the parties; attorneys, and officers of the court, is not inconsistent with this constitutional provision.

      . However, note that it is well-settled that in a criminal proceeding, waiver of the right to transcription will not be presumed. State v. LeBlanc, 367 So.2d 335 (La.1979).

      . LSA-R.S. 9:422.1 states:
      “If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child then the consent of the other legitimate parent is not necessary when the spouse of the petitioner or the grandparent or grandparents or the mother or the father have been granted custody of the child by a court of competent jurisdiction, and if any one of the following conditions exist:
      (1) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year.
      (2) The other legitimate parent is a nonresident of this state and has failed to support the child for a period of one year after judgment awarding custody to the mother or father or grandparent or grandparents.
      (3) The other legitimate parent has refused or failed to visit, communicate, or attempt to communicate with the child, without just cause, for a period of two years.”


text:
    Melinda Mathis MAGOWN, Plaintiff-Appellee, v. Charles Stephen MAGOWN, Defendant-Appellant.
    No. 15870-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.
    Farrar & Jefferson by Bennie Mac Far-rar, Monroe, for defendant-appellant.
    Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for plaintiff-appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

From a judgment reducing monthly alimony pendente lite from $1,350 to $1,000 and child support from $500 to $350, the husband appeals, contending that we should amend to further reduce these obligations because he is no longer employed.

The parties were married in 1977 and had one child, a son, born in April 1980. They separated about a month before the wife petitioned for separation on November 12, 1982. They were legally separated by a judgment on February 14, 1983.

The husband was an independent lease broker-landman, who had worked for Exxon since his graduation from college. He earned about $40,000 per year until his relationship with Exxon was terminated effective about April 1, 1983, because of the economic recession. He was $700 in arrears when the termination was announced. He testified that he had not been able to find other work as a lease broker since that time and that he was not trained to do other work.

The wife earned about $17,000 annually before her son was born but has not worked since. The record only indicates, but does not clearly show the status of the former community estate. When the $1,350 alimony award was made, the wife was ordered to pay a $500 house note. At the time of the separation the community owned vehicles worth about $75,000. After the separation, the husband sold one Porsche for $24,000 and a Corvette for $12,-000 and applied some or all of the proceeds from the sale of these vehicles to community debts. The husband is now enjoined from alienating any of the former community property. For alimony purposes, a husband’s alimentary obligations, however, are deemed to have priority over his obligations to creditors. Galbraith v. Galbraith, 382 So.2d 1042 (La.App. 2d Cir.1980).

The trial court found that the situation we have summarized had existed only for about a month and noted the dilemma presented in such a situation where the husband is without “means” to pay. CC Art. 148. The husband’s “means” cannot be determined without examining his entire financial condition. Ryan v. Ryan, 401 So.2d 514 (La.App. 2d Cir.1981). The judgment appealed was signed on May 25, 1983.

A husband’s “capacity to earn” is a proper consideration. Viser v. Viser, 179 So.2d 672 (La.App. 2d Cir.1965); Lewis v. Lewis, 329 So.2d 778 (La.App. 2d Cir.1976), and cases cited therein. The trial court has much discretion when faced with such a dilemma. If the husband’s financial straits continue he may seek relief from an impossible burden. Time may further diminish his capacity to earn.

We find no abuse of discretion at this juncture. AFFIRMED, at appellant’s cost.


author: NORRIS, Judge.

text:
    Franklin Huey JENKINS, Plaintiff-Appellee, v. Judy Dianne Bennett JENKINS, Defendant-Appellant.
    No. 15871-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.
    Writ Denied Jan. 27, 1984.

      Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for plaintiff-appellee.
    McLeod, Verlander & Dollar by Robert P. McLeod, Monroe, for defendant-appellant.
    Before PRICE, SEXTON and NORRIS, JJ.
   NORRIS, Judge.

Judy Dianne Bennett Jenkins appeals a judgment of the trial court awarding a separation on the basis of mutual fault. Finding the ruling of the trial court to be erroneous as a matter of law, we reverse.

Franklin Huey Jenkins petitioned the court for a separation from his wife based on abandonment. Mrs. Jenkins reconvened against her husband seeking a separation on the grounds of constructive abandonment, habitual intemperance, and cruelty, both physical and mental. After hearing all of the evidence, the trial court in written reasons for judgment stated:

... The Court, in reviewing all the evidence and all the facts of the case and the pleadings, feels that this is a situation in which both parties, through their actions have caused a dissolution of the marriage and that neither party is free from fault in causing the dissolution and breakup of this marriage. The Court finds that neither party prevailed to that degree of assurance which would convince this Court that they had met their burden of proof by preponderance of the evidence. The Court does find that there is a genuine dispute existing between these parties and that irreconcilable differences exist and will grant the separation on the basis of mutual fault in that both parties equally or nearly equally participated in the dissolution of this marriage and that neither party is free from fault.

After reading the brief reasons of the trial court, we conclude that it made the following findings: Although the trial court found neither party to be free from fault, it was found that neither party had proven their case by a preponderance of the evidence. Viewing the reasons as” a whole, we can only conclude that the “fault” which the court attributed to each of the parties was of a nature and degree less than “legal fault.” This conclusion is evident from the court’s finding of a genuine dispute existing between the parties which is characterized as “irreconcilable differences.”

Although the trial court made factual findings which support a conclusion that there was an absence of proof of “legal fault”, a separation was awarded to the parties on the basis of mutual fault.

La.C.C. Art. 141 provides:

A separation from bed and board shall be granted although both spouses are mutually at fault in causing the separation ...

This article does not create a new ground for separation but the fault contemplated within this article is fault which constitutes an existing independent ground for separation under La.C.C. Art. 138. Dixon v. Dixon, 357 So.2d 856 (La.App. 4th Cir.1978). While the fault of the parties need not be equal, it must be sufficient standing alone to award the other a separation. Harrington v. Campbell, 413 So.2d 297 (La.App. 3d Cir.1982). A party seeking a separation must prove his right to the separation by a preponderance of the evidence. Ryan v. Ryan, 422 So.2d 239 (La.App. 4th Cir.1982). Where neither party establishes independent entitlement to a separation, the standard for a mutual fault separation is not met because in order for a mutual fault separation under La.C.C. Art. 141 to be properly granted, each party must be guilty of conduct sufficient to constitute an independent ground for separation under La.C.C. Art. 138. Blackwell v. Blackwell, 413 So.2d 1331 (La.App. 1st Cir.1982).

In a divorce or separation proceeding, the trial court’s finding of fact on the issue of fault is entitled to great weight and will not be disturbed on appeal absent a finding of manifest error. Harrington v. Campbell, supra; Douglas v. Douglas, 385 So.2d 402 (La.App. 1st Cir.1980); Aguillard v. Aguillard, 380 So.2d 104 (La.App. 1st Cir.1979).

After reviewing the record, we cannot say that the trial court was clearly wrong in its finding that the fault which it found to be present was of a nature which does not constitute legal fault. It is clear from our reading of this record, that the parties have irreconcilable differences. Under Louisiana law and jurisprudence, a continued pattern of mental harrassment, nagging and griping by one spouse directed at the other can constitute cruel treatment; however, mutual incompatibility, fussing and bickering cannot. Loyd v. Loyd, 336 So.2d 912 (La.App. 2d Cir.1976). During this fairly short lived marriage, the parties’ discord has resulted in numerous physical separations. However, after each occasion of separation, the parties resumed their marital relationship until Mrs. Jenkins removed herself and her minor child from the matrimonial domicile on January 25, 1982.

The events giving rise to this separation are vigorously disputed. Mr. Jenkins testified that Mrs. Jenkins left home on January 25, 1982 without prior notice and without cause. He stated that she removed herself, their minor child and some of their belongings while he was at work. He had no conversation with her regarding why she left and she has not returned. He simply stated that prior to the time this suit was filed that she was welcome to return if that is what she wanted. However, he never testified that he constantly desired his wife to return nor that he even contacted her prior to filing this suit for separation only 11 days after she left. He did not even try to find out where she was much less ask her to return. On cross examination, he recalled that the parties had been arguing and fussing during the week-end immediately preceding Mrs. Jenkins’ moving, stating that it was a normal situation like every other time she decided to leave. He specifically denied any incidents of physical abuse and cursing, further denying that he ordered his wife to take the baby and leave.

On the other hand, Mrs. Jenkins testified that she left because Mr. Jenkins had thrown their child at her during a week-end replete with arguments and vile language on his part and had told her to take the baby and leave. She stated that her husband told her to leave so she left the next day. She further testified that Mr. Jenkins had told his son Vance to come back home because Mrs. Jenkins and the baby would be out of the house and that this reinforced her reason for leaving. Vance was never called to testify to verify the actual facts surrounding this alleged occurrence.

In fact, each party emphatically denies the other’s version of the events which occurred immediately prior to their physical separation. No other witnesses were presented to corroborate either party’s version of any of these events.

Mere uncorroborated testimony of one spouse as to the other spouse’s alleged acts, contradicted by the accused spouse, where the credibility of neither is attacked will not constitute a preponderance of. the evidence required to justify a judgment of separation absent an ability of the trial court to determine the truth of what occurred by weighing credibility. See Gilber-ti v. Gilberti, 338 So.2d 971 (La.App. 4th Cir.1976); Johnson v. Johnson, 296 So.2d 470 (La.App. 2d Cir.1974).

Based upon the conflicting testimony contained within this record, the trial court obviously concluded that neither party had proven by the required preponderance the fault of either party in the principal cause of the separation; thus, there was a mutual failure of proof of the requisite “legal fault”. From our review of the record, we conclude that the trial court was justified in determining that Mr. Jenkins did not constantly desire his wife’s return and that there was no proof that she constantly refused to return. Furthermore, the trial court was justified in finding that Mrs. Jenkins had failed to prove that the events which transpired over the weekend preceding her actually leaving constituted cruel treatment or constructive abandonment. See and compare Harrington v. Campbell, supra; Bergeron v. Bergeron, 372 So.2d 731 (La.App. 4th Cir.1979). Viewing the record as a whole, a conclusion supported by the record which was obviously reached by the trial court was that the separation of January 25,1982, was in reality a consensual separation based on the parties’ history of irreconcilable differences and general marital discord. If the evidence in a suit does not establish fault on the part of each party but merely shows mutual incompatibility or general dissatisfaction with a relationship, then there is no codal authority for rendition of a judgment of separation. Dixon v. Dixon, supra; Du- gas v. Dugas, 424 So.2d 1189 (La.App. 1st Cir.1982).

Accordingly, because the trial court found that neither party had proven conduct sufficient to constitute an independent ground for separation under La.C.C. Art. 138, the trial court was legally in error in awarding the parties a separation on the basis of mutual fault. Therefore, the judgment of the trial court is reversed and judgment is rendered dismissing the claims of both parties. Costs are to be divided equally.

JUDGMENT REVERSED AND RENDERED.

      . La.C.C. Art. 138 provides in part:
      Separation from bed and board may be claimed reciprocally for the following causes:

      10. When the spouses have lived six months separate and apart, voluntarily and without reconciliation; provided that both spouses shall execute an affidavit attesting to and testifying that they have so lived separate and apart and that there exists irreconcilable differences between the spouses to such a degree and nature as to render their living together insupportable and impossible. In all such cases, the proceedings shall be entitled

        “In the matter of _ (petitioner) and his (or her) spouse_”.
      While we are mindful of this statutory authority for the granting of separations on the basis of irreconcilable differences, it is inapplicable to cases such as the instant one which are contested because it requires an agreement on the part of both spouses; therefore, it cannot be a ground for one spouse’s obtaining a judgment against another. Furthermore, it may only be brought after the parties have voluntarily lived separate and apart for six months.


text:
    Marilyn M. GUMM, Plaintiff-Appellant, v. James B. WELLS, Defendant-Appellee.
    No. 15896-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.
    Loridans & Loridans by Henri Loridans, Bossier City, for plaintiff-appellant.
    James B. Wells & Assoc, by James B. Wells, Bossier City, for defendant-appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   PRICE, Judge.

Plaintiff appeals the judgment of the trial court sustaining defendant James B. Wells’s exception of prescription and dismissing her claims against him. The sole issue on appeal is whether this suit is governed by the one-year prescriptive period applicable to delictual claims or the ten-year period of actions in contract.

It was stipulated at the hearing on the exception that if the applicable time limit is one year the claim has prescribed, but it remains viable if the ten-year limit applies.

Plaintiff’s petition states the following factual allegations. She engaged defendant as her attorney in August 1979 to represent her in divorce proceedings. She gave him gold jewelry worth $1,300 as security until she could raise the money to pay defendant’s fee of $825. Defendant did obtain a divorce for Mrs. Gumm, making seven contested court appearances in her behalf from August 1979 to March 1980. On April 25,1980, plaintiff still did not have sufficient money to pay the fee owed at that time, so defendant persuaded her to transfer to him her interest in the former community home so he could have it sold at partition sale, deduct the fees owed him from the proceeds of the sale and give her the balance. Defendant, through partition proceedings, had the house sold, netting the sum of $16,682.08. He also brought garnishment proceedings on plaintiff’s behalf against her former husband, recovering $9,032.62. Of the total monies collected by defendant, he has disbursed to her $2,218.83 and has never returned the jewelry given as security. She claims he owes her the proceeds of the stated transactions after deduction of defendant’s fee and the funds already disbursed to her.

This suit was filed November 2, 1982. Defendant’s exception of prescription was sustained by the trial court on the grounds that plaintiff’s suit is a claim for conversion, thus sounding in tort and prescribed in one year from the date of the alleged misconduct. The court further held that the prescription of one year would apply even if the suit could be classified a legal malpractice action against plaintiff’s attorney under the rationale of the First Circuit in Cherokee Restaurant, Inc. v. Pierson, 428 So.2d 995 (La.App. 1st Cir.1983). We find the trial court erred in sustaining the exception of prescription and reverse the judgment for the following reasons.

We need not decide whether the trial court was correct in characterizing this action as one setting forth the elements of the tort of wrongful conversion, which has been defined by the Louisiana jurisprudence as a distinct act of dominion wrongfully exerted over another’s property in denial of or inconsistent with the owner’s rights therein. Wrongful conversion is recognized as an offense or quasi offense under La.C.C. Article 2315 and would seem to be subject to the prescriptive period of one year under La.C.C. Article 3536. See Madden v. Madden, 353 So.2d 1079 (La.App. 2d Cir.1977). Wrongful conversion is not the only cause of action, however, that is stated by plaintiff’s petition when the petition is construed in the most favorable light.

When we consider the contractual attorney-client relationship alleged to have existed between these parties, the more critical question is whether plaintiff’s action against her attorney may also be classified as one based on contract or whether it is to be limited to a malpractice claim based on negligence. There is an apparent conflict among the appellate courts of this state concerning the law of prescription applicable to clients’ claims against attorneys.

In Cherokee Restaurant, Inc. v. Pierson, supra, the First Circuit concluded that the ruling of the Louisiana Supreme Court in Sciacca v. Polizzi, 403 So.2d 728 (La.1981), involving medical malpractice should also be applied to legal malpractice claims. In Sciacca, the Supreme Court noted that, unlike other professions and vocations, the physician does not, simply by undertaking the treatment of a case, contract with a patient for a specific result. It concluded that a medical malpractice action is delictual in nature, unless the physician warrants or promises a specific result, expressly overruling decisions of the First and Fourth Circuits holding a negligent act of malpractice by a physician could constitute either a tort or a breach of contract for services, even when there was no guarantee of a specific result by the physician. The First Circuit in Cherokee Restaurant found no reason to differentiate between medical malpractice and legal malpractice and applied the Sciacca holding to their petitioner’s claim against its former attorney for failure to draft a valid lease. In so holding the court stated:

... A malpractice action against an attorney will now normally be subjected to the one year prescriptive period of La. Civ.Code Art. 3526. However, when an attorney expressly warrants a particular result, i.e., guarantees winning a lawsuit, guarantees title to property, guarantees or warrants the ultimate legal effect of his work product, or agrees to perform certain work and does nothing whatsoever, then clearly there would be an action in contract and the ten year prescriptive period of La.Civ.Code Art. 3544 would apply.

Cherokee Restaurant, Inc. v. Pierson, supra, at p. 999.

More recently, the Third Circuit considered the applicability of Sciacca to malpractice actions against attorneys in Wingate v. National Union Fire Insurance Co., 435 So.2d 594 (La.App. 3d Cir.1983), involving a plaintiff’s claim for his former attorney’s failure to timely file suit on his behalf. In contemplating the effect of Sciac-ca on legal malpractice the court stated:

... In respect to the application of prescription, we find no indication that attorneys are to be placed in the same position as physicians. The Legislature has enacted special legislation pertaining to prescription of malpractice actions against physicians. No such legislation has been enacted as to suits against attorneys. Under these circumstances, we feel that we must adhere to our rulings in Ambrose and Johnson.

The cases referred to, Ambrose v. Roberts, 393 So.2d 132 (La.App. 3d Cir.1980), writ denied 394 So.2d 1234 (La.1980), and Johnson v. Daye, 363 So.2d 940 (La.App. 3d Cir.1978), hold that a malpractice action against an attorney may state a claim both ex delicto and ex contractu, even though the petition be couched in language asserting a claim based on negligence of the attorney.

Looking to the circumstances of the instant case, it is not necessary for this court to speak to the issue of whether there should be a distinction between medical malpractice and legal malpractice. Taking the allegations of plaintiff’s petition as true, we find that she has stated a definite contractual cause of action. This claim is not related to the result of the litigation undertaken by defendant on Mrs. Gumm’s behalf, but to their ancillary agreements regarding payment of defendant’s fee and defendant’s collection of monies due plaintiff by her former husband. Specifically, she has alleged a security agreement with regard to defendant’s possession of her gold jewelry under which he would be obligated to return her jewelry upon collecting his fee. She further alleged a definite promise by the defendant to give to her any balance from the proceeds of the sale of the former community home after deduction of his fee. Finally, she has alleged that he has received funds in his capacity as her attorney and agent from garnishment proceedings which he is obligated to disburse to her as a component of the underlying employment contract between them. In fact, the attorney’s obligation with respect to such funds is set forth in detail in the Code of Professional Responsibility, DR 9-102.

Thus, this is not a malpractice claim based on negligence, but a claim for money due the plaintiff pursuant to specific agreements between client and attorney. Since we find that plaintiff has alleged specific guarantees or promises by the defendant attorney, this case would fall within the exception to the general rule stated in Sci-acca and Cherokee Restaurant. See also Julien v. Wayne, 415 So.2d 540 (La.App. 1st Cir.1982) and Cummings v. Skeahan Corp., 405 So.2d 1146 (La.App. 1st Cir.1981). While we express no opinion on the merits of the litigation, we find the allegations of the petition clearly set forth a cause of action sounding in contract and the claim against defendant is therefore governed by the prescription of ten years provided by La.C.C. Article 3544.

For the foregoing reasons, the judgment of the trial court is reversed, and defendant’s plea of prescription is overruled. This matter is remanded for further proceedings. Costs of this appeal are assessed against defendant-appellant.

REVERSED, RENDERED, and REMANDED.


author: MARVIN, Judge. SEXTON, Judge,

text:
    STATE of Louisiana In the Interest of DEM.
    No. 15909-CAJ.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.
    Smith & Hingle by Gilmer Hingle, Monroe, for appellant parent.
    J. Carl Parkerson, Dist. Atty., Joe Wray, Brenda M. Howell, Asst. Dist. Attys., Monroe, for State, appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

In this action under LRS 14:403, the mother of DEM, born October 18, 1979, appeals a judgment which “continued” the custody of DEM, as a “child in need of care” in the Ouachita Parish Department of Health and Human Resources of the state. We reverse and render judgment ordering the return of custody to the mother.

The mother first surrendered the temporary custody of DEM on October 13, 1981, to DHHR, by signing an affidavit which said in part:

“I am presently suffering emotional problems of my own and am not able to provide my child with the care and protection he needs. I am fearful of doing bodily injury to my child. I believe that I am presently verbally abusive to him.
“I, therefore, am in agreement that [DEM] be adjudicated a child in need of care and be continued in the temporary legal and physical custody of the [DHHR], and continue in his foster home placement.”

She thereafter periodically signed 60-day and 90-day agreements for DHHR’s continued care of the child. Each agreement stated that its objective was to reestablish the mother’s relationship with DEM and to have him return to her home to live. When the mother began to insist that DEM be returned to her and when she began to visit DEM at times which were not authorized by DHHR, this action was filed on May 6, 1983. DHHR sought to have DEM adjudicated a child in need of care.

“[A] ‘child in need of care’ means a child:
“(a) Whose parent inflicts, attempts to inflict, or, as a result of inadequate supervision, allows the infliction or attempted infliction of physical injury or sexual abuse upon the child which seriously endangers the physical, mental or emotional health of the child;
“(b) Whose physical, mental or emotional condition is substantially threatened or impaired as a result of the refusal or neglect of his parent to supply the child with necessary food, clothing, shelter, medical care, counseling or education, or as a result of the parent’s neglect or imposition of cruel punishment; or
“(c) Who is without necessary food, clothing, shelter, medical care, education, or supervision because of abandonment by, or the disappearance or prolonged absence of, his parent, or because of any other reason.” Art. 13. (14), CJP

LRS 14:403 is designed for the protection of children who are subjected to abuse or neglect within the meaning of parts B(3) and (4) of that statute.

“(3) ‘Abuse’ is the infliction, by a person responsible for the child’s care, of physical or mental injury or the causing of the deterioration of a child including but not limited to such means as sexual abuse and/or the exploitation or overwork of a child to such an extent that his health, moral, or emotional well-being is endangered.
“(4) ‘Neglect’ is the failure, by a person responsible for the child’s care, to provide the proper or necessary support, education as required by law, or medical, surgical, or any other care necessary for his well-being. No child who is being provided treatment in accordance with a recognized religious method of healing in lieu of medical treatment shall for that reason alone be considered to be neglected or abused.”

Juvenile authorities are given the discretion to quickly remove the child from such circumstances and eventually, through the district attorney, to have the child formally adjudicated as a child in need of care under Art. 14 ff, CJP. § 403(G)(9). See State in interest of Brown, 387 So.2d 1366 (La.App. 4th Cir.1980).

While juvenile laws are designed to protect a juvenile in need of care, these laws do not allow the state to usurp parental authority at its whim. See Dillon v. State, 336 So.2d 1066 (La.App. 2d Cir.1976). The law does not guarantee perfect parents or children. The burden is on those resisting the parent’s demand for custody to show by legal and competent evidence that the parent is disqualified or unfit to have custody, or is incapable of caring for the child, or that it is detrimental to the child’s welfare to place him or her under the care of the parent. State v. Department of Public Welfare, 170 So.2d 549, 552-553 (La.App. 3d Cir.1965). This burden must be met by competent evidence. State in Interest of Prestridge, 323 So.2d 868 (La.App. 2d Cir.1975). That evidence must be clear and convincing. State, in Interest of Thompson, 372 So.2d 1255 (La.App. 3d Cir.1979).

This mother testified that she temporarily placed DEM with the foster care program of DHHR because of financial and emotional problems, wanting to “get herself together in order to be a better mother ...” She said she did not realize that she would have so much trouble in getting him back. She said that after she saw a Shreveport psychiatrist (Dr. Stockard) in July 1982, her visitation privileges with her son were “stopped” or “curtailed.” The mother said she signed the several 60-day and 90-day agreements to maintain her employment and place of residence because she understood that if she did not so agree, she would “lose” her visitation rights.

The affidavit of October 18, 1981, which the mother signed was prepared by a DHHR worker. Testimony of other workers and counselors for DHHR established that the mother did have emotional problems and felt anxieties and inadequacies because of past circumstances in the mother’s life. There is no factual evidence that the mother physically, mentally, or verbally abused the child during the first two years of his life or during any visit with the child after he was placed in foster care. Abuse under LRS 14:403(B)(3) must be such that it fits that statutory definition. The Shreveport psychiatrist, who saw the mother on one occasion and reported that she had a severe mental illness, was not called to testify and was not cross examined. Other professionals, for DHHR, who saw the mother with some regularity over many months presented more flattering reports that the mother was improving and “finding” herself. Compare Prestridge, supra. The counselor who had continued contact with the mother stated that “I have seen no evidence of abuse. From what she has told me, I know of nothing she has done. In fact, one reason she gave for placing the child was to prevent abuse, which would seem to say to me that if she felt she was going to abuse the child, she would do something to prevent it. I’m not convinced that she would have abused the child, if she had not placed it.”

Under these circumstances, we must conclude that the juvenile court was clearly wrong in adjudicating DEM as a child in need of care.

The purpose of LRS 14:403 is stated in part A of the statute:

“The purpose of this section is to protect children whose physical or mental health and welfare are adversely affected by abuse and/or neglect and may be further threatened by the conduct of those responsible for their care and protection by providing for the mandatory reporting of suspected cases by any person having reasonable cause to believe that such case exists. It is intended that as a result of such reports the protective services of the state shall be brought to bear on the situation in an effort to prevent further abuses, and to safeguard and enhance the welfare of these children. This section shall be administered and interpreted to provide the greatest possible protection as promptly as possible for such children.

We cannot find that the physical or mental health and welfare of DEM are “adversely affected by abuse ... or neglect” by the mother.

Under these circumstances we shall reverse the judgment below which orders custody of DEM continued with DHHR and hereby order that the custody of the child, DEM, be returned to his mother. Costs, here and below, to the extent that they are legally assessable to DHHR, shall be paid by DHHR.

REVERSED AND RENDERED.

SEXTON, J., concurs and assigns written reasons.

SEXTON, Judge,

concurring,

I concur simply to express distress that under the circumstances of this case, LSA-R.S. 14:403 and the Juvenile Code do not állow removal. While this record shows a strong potential for abuse on the part of this parent, it does not show the required actual abuse.


author: ROY NOBLE LEE, Justice,

text:
    Martha H. McILWAIN v. Cecil McILWAIN, Jr.
    No. 54545.
    Supreme Court of Mississippi.
    Nov. 23, 1983.
    Thomas L. Goldman and Goldman, Dreyfus & Primeaux, Meridian, for appellant.
    Charles M. Leggett, Waynesboro, for ap-pellee.
    Before BROOM, ROY NOBLE LEE and HAWKINS, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Cecil Mcllwain, Jr. filed suit for divorce against Martha H. Mcllwain, his wife, in the Chancery Court of Wayne County, Honorable M. Wyatt Collins, special chancellor, presiding, on the grounds of habitual cruel and inhuman treatment and irreconcilable differences. Mrs. Mcllwain denied the averments of the bill of complaint and filed a cross-bill seeking separate maintenance, alimony, support for two teen-age children, and attorney’s fees. Her cross-bill was amended to ask for divorce on the ground of habitual cruel and inhuman treatment, and, after a full hearing, the special chancellor granted Mrs. Mcllwain a divorce, custody of, and support for, the children, including a housing allowance, and certain items of personal property. Mrs. Mcllwain has appealed that part of the decree fixing child support and denying alimony.

The assignments of error are four in number, but they all go to the principal questions of inadequacy of support, housing and alimony.

The parties were married March 22,1964, and two children were born: Neil Allen, age 15, and Steven Kent, age 13. The parties separated June 21, 1982, and the divorce decree was entered November 5, 1982.

The pertinent parts of the lower court decree relating to the questions presented appear as Appendix I.

This case follows the usual pattern involving support and alimony. The appellant contends that the amounts of child support awarded and the inadequacy of alimony are manifestly erroneous and that she and the children are unable to survive with those allowances. The appellee argues that, because of his financial responsibilities, he is unable to pay any larger amounts than those awarded; that he would lose the property he owns, if required to pay more; and that he could not exist in the event of an increase.

The proof indicates that appellee is vice president and a member of the Board of Directors, Bank of Shubuta. He had income in the year previous to the divorce of approximately $40,000, although it is recognized that the amount fluctuates.

Appellee inherited property from his parents, consisting of a home and 25 acres of land, the value of which is not disclosed by the record. However, in 1979 and 1980, he borrowed $65,000 from the Bank of Shubu-ta (his employer) and used same to improve and refurbish the home. Both parties’ schedules of expenses are set forth in Appendix II.

Appellant is repaying the $65,000 loan to the Shubuta bank at the rate of $1,275.00 per month or $14,000 per year. The promissory note is from year-to-year and the loan would be repaid over a period of approximately five (5) years. No effort was made to obtain a long-term loan in order to finance the indebtedness. If repayments were approved or permitted in such amounts, the appellant could divest himself of practically all monthly and yearly income and forfeit his responsibilities to a dependent wife and children.

The special chancellor apparently was of the opinion that it would be inequitable to deprive appellee of his inheritance. Howsoever a husband and father acquires a home and property is of no consequence in a proceeding such as this. The paramount question is the children’s best interest. Ap-pellee was temporarily living in a furnished mobile home at a rental cost of $225 per month. Appellant testified that a home suitable for her and the two children in Waynesboro would rent for $300 to $350 per month.

We are of the opinion that the special chancellor should have ordered that appellant and the children have the use of the home, certainly until the children attained their majority or until the appellant may marry again, whichever occurs first. The special chancellor abused his discretion in not doing so. Clark v. Clark, 293 So.2d 447 (Miss.1974); Judge v. Judge, 370 So.2d 833, 834 (Fla.1979). We recognize that use of the home by appellant is in the nature of continuing monthly alimony. Rhodes v. Rhodes, 336 So.2d 1315 (Miss.1976); Saveli v. Saveli, 290 So.2d 621 (Miss.1974).

In addition, the appellee will be required to refinance the home indebtedness with a long-term loan, if he cannot make the present monthly payments and provide adequate support indicated herein. Child support may or may not be increased and reasonable alimony will be allowed on a retrial, after considering all facts and circumstances then existing.

The decree of the lower court is affirmed as to the divorce, custody of children, medical, drug, dental and hospital expenses for the children, allocation of personal property and attorney’s fees. It is reversed and rendered as to use and possession of the home, increase of child support, and an allowance of alimony, and is remanded for determination of the issues mentioned herein, consistent with this opinion.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART AND REMANDED TO THE LOWER COURT.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

APPENDIX I

1. The Court has jurisdiction of the parties and the subject matter.

2. The defendant, Martha H. Mcllwain, is granted a divorce ... on the ground of habitual cruel and inhuman treatment;

3. Martha H. Mcllwain is awarded the custody of the minor children of the parties:

4. Cecil Mcllwain shall pay ... the sum of $400.00 per month child support to begin November 5,1982 and a like payment to be due and payable on the 5th day of each month thereafter;

5. Martha H. Mcllwain shall have the use, possession and ownership of the 1979 Datsun automobile ... and Cecil Mcllwain, Jr. shall make the monthly payments thereon and keep them current;

6. Cecil Mcllwain, Jr. shall have the use and possession of the home of the parties in Wayne County, Mississippi and shall pay unto Martha H. Mcllwain the sum of $175.00 per month as reasonable living expenses for the minor children of the parties, said amount to be due and payable on the same day as the child support payments. Cecil Mcllwain, Jr. shall have the option of allowing Martha H. Mcllwain and the minor children of the parties to remain at the property and the said $175.00 per month shall be waived by Martha H. Mcllwain by her living on the property; should Cecil Mcllwain, Jr. elect to take possession of the home property the said Martha H. Mcllwain shall be allowed to remain on the property until January 15, 1983.

7. Cecil Mcllwain, Jr. shall provide such furniture and household items as shall be necessary for Martha H. Mcllwain to establish a home for the minor children of the parties;

8. Cecil Mcllwain, Jr. shall be responsible for all reasonable medical, drug, dental and hospital expenses which shall be incurred by the minor children;

9. Cecil Mcllwain, Jr. shall pay unto Thomas L. Goldman, attorney for Martha H. Mcllwain, the sum of $750.00 attorney fees in this matter.

APPENDIX II

APPELLANT’S EXPENSES

Item Amount Per Month

Groceries $ 400.00

Utilities 200.00

Medicine 125.00 (includes personal hygiene items)

Telephone 50.00 (acknowledged by appellee’s testimony)

Gasoline 100.00

School 85.00 (includes supplies and lunches)

Monthly Total $ 960.00

Auto Insurance-$170.00/year Clothing-$100.00/mo. (For the two boys)

Appellant states that $868.00 would be adequate child support

APPELLANT’S EARNINGS

Part-time Job — $2,671.50 (during tax season only)

Alimony Suggestion —$200.00 per month in alimony

APPELLEE’S INDEBTEDNESS

(1) Home mortgage or promissory note— $59,510 (Home improvement loan balance paid annually — $14,000)

(2) 1979 Datsun (which appellant would use) — $2,500

APPELLEE’S EXPENSES

(1) Rented mobile home, furnished— $235.00

(2) Business expense over per diem— $300.00 (1981)

APPELLEE’S INCOME

(1) $50,000 in 1981 - A.G.I. for tax purposes - $49,893.00

(2) Gross salary $3,000/mo.)

Fees 250/mo.) $40,800/year

Travel expense 125/mo.)

Take-home after deductions - $26,400/yr. (special chancellor’s calculations)

ASSETS

Mineral rights — $11,000 (one-time lease, 1981) Record does not state when they could be leased again.

Fishing camp property — Value unknown (Buckatunna Creek)

1976 Truck and Jeep — Paid For

Certificates of Deposit — $8,000 to $10,000 (1981) (For children’s education — Appellee retains signature rights)

      . One source of income was an $11,000 oil, gas and mineral lease which probably will not occur again.

       Appellee would not have this expense if he were in his home now and appellant were leasing. It would decrease to $175 per month as ordered by the special chancellor.