author: STOKER, Judge.

text:
    George Ferdinand BENTLEY, Plaintiff-Appellee, v. Paula Daigrepont BENTLEY, Defendant-Appellant.
    No. 83-264.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      Kenneth W. Cole, Lafayette, for defendant-appellant.
    Charles Brandt, Lafayette, for plaintiff-appellee.
    Before FORET, STOKER and YELVER-TON, JJ.
   STOKER, Judge.

This appeal, our number 83-264, concerns child custody. It is consolidated with appeal number 83-413 which concerns making past due child support payments executory. In two judgments signed on November 18, 1982, the trial court (1) awarded permanent custody of all four Bentley children to George F. Bentley, Jr., the plaintiff on the motion for change of custody, and (2) gave judgment for past due child support payments of $3,600 together with attorney’s fees of $250 to Paula D. Bentley, plaintiff on the rule to make past due child support payments executory. Our decision on the child support payments is reported in a separate opinion at 440 So.2d 1365 (La.App. 3rd Cir.1983). For the reasons given below, we affirm the trial court’s award of custody.

PROCEDURAL HISTORY

Four children were born of the marriage between George F. Bentley, Jr. and Paula D. Bentley. The children are: Lara C. Bentley, born on November 18, 1970; George F. Bentley, III, (hereinafter Bubba), born on December 20,1971; Anne H. Bentley, born on March 14, 1973; and Katherine T. Bentley, born on October 22, 1975. In the judgment of divorce between George and Paula Bentley, custody of all four children was awarded to Paula.

On June 18, 1980, Mr. Bentley filed a motion for a change of custody. In a judgment signed on May 5,1981, concerning this issue, the trial judge awarded custody of Lara and Anne to Mr. Bentley and continued custody of Bubba and Katherine in Paula Bentley. The trial judge stated in his reasons for judgment, and the judgment so provided, that these custody arrangements were to be temporary in nature. They were to last for a period of six (6) months from the date of the judgment, during which time both parents and the children were required to obtain regular counseling. The trial judge also ordered Mr. Bentley to pay child support in the amount of $300 per month to Paula Bentley during the six month period of temporary custody. Prior to this judgment Mr. Bentley had been paying $400 per month for child support.

In his reasons for judgment, the trial judge stated that at the end of the six-month period the court would review the progress made by the children and their parents, and at that time, if warranted by the facts, render a judgment of permanent custody. The trial judge further stated that he would re-set child support at that time if it became necessary.

At the end of the six-month period, neither the judge nor the parties took any legal steps concerning the issues of child custody and child support. Mr. Bentley simply retained the custody of Lara and Anne, and Paula Bentley simply retained the custody of Bubba and Katherine. Additionally, Mr. Bentley stopped paying child support at the end of this period. It was not until April 5, 1982, when Mr. Bentley filed a supplemental motion for change of custody, in which he again sought custody of all four children, that any further steps were taken concerning the custody matter. It was not until June 15, 1982, when Paula Bentley filed a rule to make past due child support payments executory, that any further steps were taken concerning the child support matter.

Two separate judgments were signed on November 18, 1982; the first awarded permanent custody of all four children to Mr. Bentley, and the second awarded past due child support payments together with attorney’s fees in the respective amounts of $3,600 and $250 to Paula Bentley. Paula Bentley appeals from the custody judgment. Mr. Bentley appeals from the child support judgment. In this opinion, we are only concerned with the custody judgment.

APPLICABLE LAW

The issue on this appeal is whether or not the trial judge abused his discretion in ruling that it would be in the best interests of the four Bentley children to be in the custody of their father, George Bentley.

The sole criterion applicable in change of custody cases is the best interest of the children. LSA-C.C. art. 157; Bor-delon v. Bordelon, 390 So.2d 1325 (La.1980). The role of the court is to determine the best interest of the children based on the relative fitness and ability of competing parents in all respects to care for the children. Suire v. Jagneaux, 422 So.2d 572 (La.App. 3rd Cir.1982); Thornton v. Thornton, 377 So.2d 417 (La.App. 2nd Cir.1979).

A trial court’s determination of fact will not be upset on appeal unless it is “clearly wrong”. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In performing its function of deciding child custody cases a trial court is vested with much discretion. The determination of the trial court is entitled to great weight and its judgment awarding custody will not be disturbed on appeal absent a clear showing of abuse of discretion. Bordelon v. Bordelon, supra.

ARGUMENT

Paula Bentley urges that the trial court abused its discretion in awarding custody of the children to George Bentley.

The care and custody of the four Bentley children has been the subject of prolonged and bitter litigation between the parents. As the trial judge noted in his reasons for judgment, this has had a detrimental effect on all of the children which has manifested itself in behavioral problems. The voluminous record is replete with allegations and evidence of inadequate supervision, physical abuse and neglect, and psychological suffering, as well as allegations and evidence concerning the character and stability of each of the parents.

In the judgment of May 5,1981, the trial court took the unusual step of separating the four children and awarding custody of Lara and Anne to Mr. Bentley for a period of six months. He took this step based upon the evidence, and also based upon the recommendations of Dr. Kenneth Boullion, Ph.D., the court-appointed clinical psychologist. At this point the bitter and prolonged litigation had already manifested itself in behavioral problems in all of the children. Because the parents demonstrated inability to handle the difficult situation and to cope with the problems of the children, the trial judge followed Dr. Boullion’s recommendation and ordered that both the parents and the children obtain regular counseling.

The matter was not taken up again until Mr. Bentley filed a supplemental motion for change of custody on April 5, 1982. As a result, additional evidence was taken and the court reviewed the progress of the children and their parents since the time of the judgment of May 5, 1981. The matter was taken under advisement on July 28, 1982. After re-evaluating the situation of the Bentley children the court, in its judgment on November 18, 1982, awarded permanent custody of all four children to George Bentley. In reaching this decision, the court was aided by a report prepared by Dr. Boullion, who had been involved with the evaluation of the four children since September of 1980.

Dr. Boullion’s testimony and report indicated that the prior temporary custody award was no longer in the children’s best interest. He recommended that they be reunited in order to establish appropriate sibling relationships in a nurtured, emotionally supportive but consistently structured environment. It was his opinion that the children could best be managed together in the home of Mr. Bentley.

In his reasons for judgment, the court took careful notice of the progress of the four children since the court’s prior ruling. Lara and Anne, who resided with Mr. Bentley were noted to have made substantial academic and emotional improvements. Katherine and George had continued to experience significant problems in both areas while residing with Paula Bentley.

Although none of the evidence indicates that Paula Bentley is an unfit parent, after reviewing all of the evidence we cannot say that the trial judge was clearly wrong in his findings of fact, nor that he abused his discretion in ruling that it would be in the best interest of the four Bentley children to be in the custody of their father, George Bentley, Jr.

For the reasons given above, the ruling of the trial court is affirmed.

AFFIRMED.

      . The name of the plaintiff in caption in case number 83-413, which is consolidated on appeal with this case, reads: “George Ferdinand Bentley, Jr.”. Although the name is different in the two cases, one being qualified as “Jr.,” the name applies to the same person.

      . Subsequent to this trial, LSA-C.C. art. 157 was amended by Acts 1982, No. 307, S1, eff. Jan. 1, 1983. This did not alter the criterion to be used in change of custody cases.


source: Caselaw Access Project

license: Public Domain

text:
    George Ferdinand BENTLEY, Jr., Defendant-in-Rule—Appellant, v. Paula Daigrepont BENTLEY, Plaintiff-in-Rule—Appellee.
    No. 83-413.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Writ Denied Jan. 16, 1984.

      Charles Brandt, Lafayette, for plaintiff-appellant.
    Kenneth Cole, Lafayette, for defendant-appellee.
    Before FORET, STOKER and YELVER-TON, JJ.
   STOKER, Judge.

In this appeal, our number 83-413, we consider the correctness of a judgment making past due child support payments executory. It is consolidated with appeal number 83-264 which is concerned with child custody. In two judgments signed on November 18, 1982, the trial court (1) awarded permanent custody of all four Bentley children to George F. Bentley, Jr., the plaintiff in the motion for change of custody, and (2) gave judgment for past due child support payments of $3,600 together with attorney’s fees of $250 to Paula D. Bentley, plaintiff in the rule to make past due child support payments executory. Our decision on the issue of child custody, together with the procedural history of both the child custody and child support judgments, is reported in a separate opinion at 440 So.2d 1362 (La.App. 3rd Cir.1982).

Mr. Bentley appeals from the judgment rendered on November 18, 1982, making past due child support executory in the amount of $3,600 plus legal interest from the date of each payment together with attorney’s fees in the amount of $250. The child support payments were ordered in a judgment rendered on May 5, 1981, in which the trial court awarded $300 per month in child support payments to Paula D. Bentley.

We reverse.

BACKGROUND RELATIVE TO CHILD SUPPORT JUDGMENT

In order to follow the issues in this matter it is necessary to review some of the previous history. The judgment of May 5, 1981, was an amendment of a prior judgment in which child support payments had been set at $400 per month. On April 15, 1981, the trial court handed down written reasons for judgment in which custody of the four children was split and the child support amount was amended. (See record in the companion case, number 83-264, at transcript pages 126-129.) The rulings in the April 15, 1981 reasons for judgment were embodied in the judgment of May 5, 1981. In those reasons for judgment the trial court explained that the splitting of custody “is to be temporary in nature, to last for a period of six (6) months from the date of this judgment.” Although the trial court’s reasons used the words “from the date of this judgment,” the formal judgment of May 5, 1981, makes the custody arrangement run for six months from that date.

The trial court provided in its reasons for judgment that during the six month period the parties and their children undergo family counseling as a condition of the temporary arrangement.

As an incident of the temporary custody arrangement the trial court provided in its reasons for judgment what it referred to as an amendment relative to child support payments mentioned above. The amendment was made in the following language:

“The judgment setting child support being paid by George Bentley is hereby amended from FOUR HUNDRED AND NO/lOO ($400.00) DOLLARS per month to THREE HUNDRED AND NO/100 ($300.00) DOLLARS per month during the six month period of temporary custody established herein. The court will reset child support at that time if it becomes necessary.”

It is not clear whether the amendment was intended to be limited to the “six month period of temporary custody” at which time the amount would revert to $400. The question is clouded by the fact that in its reasons the trial court stated it would reset the child support payments at the end of the six months period “if it becomes necessary”.

The judgment of May 5, 1981, which embodied the reasons for judgment of April 15,1981, did not clarify the question. After two paragraphs which effect the split custody award, the following order appears:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the above custody arrangements are to be temporary in nature and are to last for a period of six (6) months from the date of the judgment.”

Further in the judgment the following provision setting the child support payments at $300 per month appears:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that GEORGE FERDINAND BENTLEY, JR., be ordered to pay child support in the amount of THREE HUNDRED AND NO/00 ($300.00) DOLLARS per month to PAULA DAIGREPONT BENTLEY during the six month period.”

The prior judgment providing for child support is not mentioned in the May 5,1981, judgment. The child support provision of the May 5,1981, judgment would terminate under its own terms.

EVENTS SUBSEQUENT TO MAY 5, 1981

In compliance with the May 5, 1981 judgment Mr. Bentley paid $300 per month in child support to Paula Bentley for a six month period. He then ceased making payments. The two children awarded to Mr. Bentley remained with him and the two children awarded to Mrs. Bentley remained with her.

On June 15, 1982, Mrs. Bentley filed a rule to make executory past due child support payments, for contempt, attorney’s fees, court costs and for other relief. She based her rule on the May 5,1981 judgment and the fact that Mr. Bentley had made no payments since November 1981, a total of seven months. She prayed that the arrear-age in child support be made executory for the seven months period (December 1981 through June 1982) in the amount of $2,100. In the alternative, Paula Bentley alleged that if the judgment providing child support provided in the May 5, 1981, judgment expired six months from its date, the prior judgment was thereby reinstated. In such event she alleged she was entitled to the seven month arrearage in the amount of $400 per month, that is, $2,800.

Mrs. Bentley’s rule was heard on June 21, 1982, evidence was adduced and the trial court took the matter under advisement. On November 16, 1982, the trial judge handed down written reasons for judgment and the formal judgment was signed on November 18, 1982.

THE JUDGMENT OF NOVEMBER 18, 1982

The appeal of George F. Bentley, Jr. with which we are concerned here was taken from the judgment of November 18, 1982. That judgment made past due child support payments executory in the amount of $3,600. The court also awarded Mrs. Bentley $250 in attorney’s fees.

The trial court’s reasons for judgment handed down on November 9, 1982, are concerned almost entirely with the question of custody and the court’s decision to give Mr. Bentley custody of all the children. The trial court made no allusion to the problem relating to the expiration of child support judgment of May 5,1981. Evidently, the court concluded it remained in effect because the court fixed the amount due at $3,600. At the rate of $300 per month this would cover the amount ($2,100) due for seven months plus the amount ($1,500) due for the following five months.

The trial court gave no explanation for its conclusions in the child support matter. We conclude that the trial court erred.

On the basis of the expressions contained in the reasons for judgment given by the trial court on April 15,1981, we may speculate as to the trial judge’s intentions. However, we do not find any ambiguity in the provision in the May 5, 1981 judgment relating to child support. Taking this provision by itself, it clearly provides that Mr. Bentley should pay child support in the amount of $300 per month “during the six month period of temporary custody”. At the conclusion of that period of six months no action was taken to continue or rearrange the custody provision. Regardless of what the trial court may have intended, it is our opinion that at the conclusion of the six month period there was no provision in effect requiring Mr. Bentley to pay any child support, and, in fact, there was no provision in effect for custody.

In the alternative Mrs. Bentley prayed in her rule filed June 15,1982, that should the provision for $300 in monthly alimony be deemed to have expired after the period of six months, then the prior judgment provision calling for monthly payments of $400 per month should be deemed to have been reinstated. The arrearage should then be computed on the basis of $400 per month for seven months.

As we read the judgment of May 5,1981, the award of custody splitting the custody between the two parents is unequivocable, modified only by a following separate paragraph providing that the arrangement should be temporary and last for six months. The language from the May 5, 1981, judgment referred to reads:

“IT IS ORDERED, ADJUDGED AND DECREED that the control, care, and custody of LARA BENTLEY and ANNE BENTLEY be vested in their father, GEORGE BENTLEY, JR.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the control, care, and custody of GEORGE F. BENTLEY, III and KATHERINE BENTLEY, is to remain with their mother, PAULA DAIGREPONT BENTLEY.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the above custody arrangements are to be temporary in nature and are to last for a period of six (6) months from the date of the judgment.”

This language is clear and unambiguous. The prior judgment giving custody of all children to Mrs. Bentley was replaced by the May 5, 1981, judgment. When the latter judgment expired by its own terms after six months, there was nothing to be reinstated. Therefore, neither parent had legal custody of any of the children. Physically, the children remained with the respective parents to whom they had been given on May 5, 1981. Such physical custody was not illegal, it was simply not legally provided for.

CONCLUSION

We conclude that six months after May 5, 1981, there was in force neither an award of custody to either parent nor any provision for payment of child support to Mrs. Bentley. Had the matter been brought to the trial court’s attention prior to the expiration of the six month period, the trial court could have acted on it and could have made some provision to cover the situation until final disposition of the custody was made. This was not done and the hiatus resulted. Had the matter been brought to the trial court’s attention after the six months, the court could have made provision from that time forward. That is not what plaintiff in rule did. Plaintiff in rule simply sought to have alleged past due child support made executory.

For the reasons we have given the judgment of the trial court signed on November 18, 1982, making past due child support executory in the amount of $3,600 and awarding attorney’s fees and costs, is reversed.

The costs of this rule accrued in the trial court and on appeal are assessed to plaintiff in rule, Paula Daigrepont Bentley.

REVERSED.


author: CUTRER, Judge. DOMENGEAUX, Judge,

text:
    W.T. McCAIN, Judge of the Thirty-Fifth Judicial District Court, Plaintiff-Appellee-Appellant, v. GRANT PARISH POLICE JURY, et al., Defendants-Appellants-Appellees.
    No. 83-288.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    William J. Doran, Jr., Baton Rouge, for defendant-appellant.
    Durrett, Hardin, Hunter, Dameron & Fritchie, Ben W. Lightfoot, Baton Rouge, for plaintiff-appellant-appellee.
    Ernie Lynn Vallery, Pollock, and R. Gordon Kean, Jr. of Kean, Miller, Hawthorne, D’Armond, McGowan & Jarman, Baton Rouge, for plaintiff-appellee.
    Joseph P. Beck, II, Dist. Atty., Parish of Grant, Colfax, for defendants-appellants-appellees.

      Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

The sole issue in this appeal is whether a district court may, by mandamus, require a legislative body (Police Jury of Grant Parish) to budget funds necessary for the effective and efficient operation of the district court. This issue is res nova in Louisiana. After reviewing the most basic concepts of separation of power in our constitution, cases and scholarly articles from other jurisdictions, we, with no difficulty, find that courts have the inherent power to compel the guardians of the public fisc, in this case, the Police Jury of Grant Parish, to budget adequate funds for the operations of the court to insure that the proper independence among our three co-equal branches of government be maintained.

On February 4, 1982, the Honorable W.T. McCain, Judge of the Thirty-Fifth Judicial District Court, submitted to the Grant Parish Police Jury a proposed budget for the district court during 1982. Judge McCain’s proposed budget included four items which totaled $11,400.00. The items were: Judge’s office telephone services— $3,800.00; Maintenance of equipment, typewriters, copier, recording equipment, etc.— $3,600.00; Judge’s office supplies— $2,500.00; and Judge’s office reference materials — $1,500.00. The Police Jury ignored Judge McCain’s request and, without further contact with Judge McCain, budgeted $2,500.00 to the Thirty-Fifth Judicial District Court for “Judge’s Office Expenses” for the 1982 fiscal year.

By June 1982, Judge McCain had received several “past due” notices on bills for services provided to the court. It is not clear from the record exactly when the Judge’s $2,500.00 budget was exhausted but one member of the Police Jury, a Mr. Harrison, testified that the budget was surely exceeded by June and that he was aware of certain unpaid bills from the court. Judge McCain, during his testimony, identified the following past due bills: Telephone (2 months), $418.63; Pitney Bowes (postage meter rental and postage costs), $848.13; Price Office Supply (bookcases for Judge’s office), $688.00; West Publishing Company (Louisiana Revised Statutes and Civil Code updates), $351.00; Lanier Business Products (courtroom recording equipment), $549.95. On June 3,1982, Judge McCain wrote to the Police Jury, with a copy sent to each member personally, detailing the above past due bills. Judge McCain noted that he had hoped funds to cover some of these bills would be generated by the court’s Criminal Court Fund but that sufficient funds were not available from that source. The letter ended with an acknowledgment by the Judge that his office’s budget had long been depleted and with the enclosure of the past due bills for disposition. Shortly thereafter an employee of the Police Jury told Judge McCain that, as his office budget had been exhausted, there were no monies available to pay these bills.

On June 7, 1982, the Police Jury having made no official response to Judge McCain’s letter of June 3rd, Judge McCain filed two suits against the Grant Parish Police Jury in an effort to secure funding sufficient to cover the costs of the reasonable and necessary basic needs of his court. Petitions of mandamus, seeking to compel the Police Jury to pay past due bills and reform its budget to provide for expected future bills, and for declaratory judgment were filed. Exceptions of no cause of action were filed by the Police Jury in both suits. These suits were consolidated for trial. The trial court, with the Honorable Richard B. Williams sitting by appointment of the Louisiana Supreme Court, granted the Police Jury’s exception in the declaratory judgment suit and granted judgment in favor of Judge McCain in the mandamus action. The judgment ordered the Police Jury to immediately pay the reasonable expenses of the district court which were then past due and to reform its budget to provide the amounts specified in Judge McCain’s proposed budget. The Police Jury was allowed a credit for $2,213.73, the amount previously paid out for district court expenses.

Both sides have appealed the rulings which were adverse to them in the respective cases and those appeals have been consolidated. Because of our decision in the Police Jury’s appeal of the mandamus action the issue in the declaratory judgment suit is moot. However, a separate opinion will be rendered in that suit.

SEPARATION OF POWERS

Our government is based on a constitution. One of the most basic and fundamental features of our system is the vesting of power in three “coordinate, independent, coequal and potentially coextensive” branches. Article II of the Louisiana Constitution, entitled Distribution of Powers, could hardly be more precise. It provides:

“§ 1. Three Branches
Section 1. The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.
“§ 2. Limitations on Each Branch
Section 2. Except as otherwise provided by the constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the other.”

Under the provisions of Art. VI, § 7 of the Louisiana Constitution of 1974, the Police Jury of Grant Parish is the local legislative branch of government. Pursuant to this constitutional provision, the legislature has given the Police Jury broad powers, including the power to levy and collect taxes, pass ordinances, incur debts and spend public monies for public purposes. See LSA-R.S. 33:1236. Article VI of the Louisiana Constitution, however, places a limitation on the power of local governments insofar as it may affect the judiciary. Section 25 of Article VI provides:

“§ 25. Courts not Affected.
Section 25. Notwithstanding any provisions of this Article, courts and their officers may be established or affected only as provided in Article V of this constitution.” (Article V pertains to the Judicial Branch.)

The Thirty-Fifth Judicial District Court, for the Parish of Grant, State of Louisiana, was created pursuant to Article V of the Louisiana Constitution. As such, it stands on an independent and equal footing with the Grant Parish Police Jury. Judge McCain, as judge of the Thirty-Fifth Judicial District Court, is charged with administering that court and insuring that the court provides the service to the public as mandated by our constitution.

That the Thirty-Fifth Judicial District Court, represented herein by Judge McCain, has a right to exist, cannot be, and has not been questioned. That the Grant Parish Police Jury is the party primarily responsible for supplying the funds to pay for the operation of this court has not been seriously challenged. The issue presented in this case is whether a court, as an equal member of our governmental triumviate, has the inherent power to compel a legislative body, another of the co-equal branches of government, to budget the reasonably necessary expenses incurred to provide the basic needs of an efficient, effective court. We hold that courts in the state of Louisiana do possess such inherent power.

INHERENT POWER OF THE COURT

The question concerning the existence and scope of an inherent power in the judicial branch, to require the provision of funds necessary to insure its own effective operation, is res nova in Louisiana. However, this question has been raised and decided in many of our sister states. “Courts which have addressed themselves to [this issue] generally have upheld the inherent authority of the courts to compel payment of those expenses necessarily incurred by such courts in the discharge of their duties.” 59 ALR3d 569, 574 (1974).

Two themes which appear time and again in the cases which recognize the inherent power of courts to force certain public officials to spend public funds on the courts are: (1) such power is essential to preserve the independence of courts which are often called upon to rule on the acts of these same public officials, who control public funds, and the courts must be free to act without fear of retaliation; and (2) although the power which exists in the courts is inherent, it is not unlimited; rather it extends to expenses which are reasonably necessary to the functioning and administration of the court and must be exercised in the spirit of mutual cooperation among the various branches of government.

We agree with both of the theories expressed above. Judge Williams, in his opinion at the trial level, grasped the separation of powers argument and succinctly, and correctly, stated:

“In the instant case the [Police] Jury is the Legislative body of the Parish of Grant. The Plaintiff [Judge McCain] is of the Judiciary Body of said Parish. In order for the Judiciary Body through the Judge’s Office to properly function free and untrammeled it cannot be directed, controlled or impeded in its functions by any of the other departments of government. The [Police] Jury by its failure to properly budget funds for the Judge’s Office will reduce the efficiency and independence of same. This is not to be permitted.”

As we stated before, although the power of a court to incur, and compel the payment of, debts for services and supplies reasonably necessary for its efficient and effective operation is inherent, such power is not unlimited. The Grant Parish Police Jury, in its arguments at trial and in its brief to this court, mention possible abuses which could arise if such an inherent power is recognized in this state. No such abuses are present in this case. Judge McCain has requested that his court be provided the very basic services and supplies it needs to operate.

Testimony was elicited at trial from two other district court judges: the Honorable Guy E. Humphries, Jr., retired Judge of the Ninth Judicial District Court, Parish of Rapides, and the Honorable Hiram J. Wright, Judge of the Eighth Judicial District Court, Parish of Winn. Both of these judges testified as to the reasonableness and necessity of the expenses incurred by Judge McCain. Our review of the record convinces us, as it did Judge Williams at trial, that Judge McCain established the expenses he incurred were both reasonable and necessary to the operation of his court. The Police Jury presented no contradictory evidence on these points.

The judgment of the trial court directing the Police Jury to pay all past due bills incurred by the court, and ordering the Police Jury to amend its budget to provide for future expected expenditures of the court shall be affirmed.

MANDAMUS AS A REMEDY

There was much discussion in the briefs to this court concerning the propriety of mandamus in this situation. Clearly, the courts of this state are established by our constitution, as is the legislative branch, and have a right to exist. If the legislative branch (Police Jury), being the only branch of government with the ability to generate operating funds, refuses to provide the necessary money for the operation of the courts, the courts have only one avenue of relief available; i.e., a suit to force the fulfillment of a ministerial duty, mandamus. We hold that mandamus is the proper procedural device in a case such as this.

For the reasons assigned, the judgment of the district court is affirmed. All costs of this appeal are to be paid by the appellant, Grant Parish Police Jury.

AFFIRMED.

DOMENGEAUX, Judge,

concurring.

It should be made clear that the Grant Parish Police Jury’s obligation as ordered by the district court and affirmed by us herein, is limited to the district court’s reasonable expenses over and above those which cannot be paid because of the insuffi-ciencies of the Criminal Court Fund. We express no opinion as to any exigency which might place a police jury into a deficit situation by paying such district court expenses. Such a contingency would entail possible conflicting constitutional provisions which we obviously do not consider here.

      . A total of $2,500.00 was budgeted to the court for 1982, in spite of the fact that the Police Jury knew that in 1981 over $6,000.00 was paid for the court’s various expenses. In 1981 the Police Jury had budgeted only $1,500.00 to the district court and ended up spending approximately four times that amount. If a similar situation arose in 1982, vis a vis the budgeted amount and actual expenses being out of sync by a multiple of four, the Police Jury could realistically have anticipated spending about $10,000.00 on the district court.

      . The Police Jury Association of Louisiana, Inc., appeared at trial and filed in open court a “Petition to Intervene or File Amicus Curiae Brief.” The trial judge allowed the Association to file its brief and to argue against the plaintiffs petition for mandamus. The judgment of the trial court makes no mention of the Association as intervenor and we assume that intervention was denied although the brief, amicus curiae, was accepted. The Association has not participated in this appeal.

      . See generally, 16 Am.Jur.2d Constitutional Law § 210 (1964).

      .LSA-CJP art. 14 provides that the district courts of this state shall have jurisdiction of juvenile cases except in the parishes of Caddo, Orleans, Jefferson and East Baton Rouge. LSA-R.S. 13:1586 provides that the juvenile court may employ stenographic, secretarial and other personnel necessary to provide adequate service. These expenses shall be paid by the parish.
      LSA-R.S. 15:571.11 authorize Grant Parish through its Police Jury to pay all or part of the expenses of the offices of the district judge from the revenues derived from the Criminal Court fund.
      LSA-R.S. 33:4713 provides that the parish shall bear the expense and furnish suitable building and requisite furniture for the district court.

      . See generally, Annot., 59 ALR3d 569 (1974), entitled: Inherent Power of Court to Compel Appropriation or Expenditure of Funds for Judicial Purposes, discussing cases from 27 states and the District of Columbia.

      . See, Smith v. Miller, 153 Colo. 35, 384 P.2d 738 (1963); Carlson v. State, 247 Ind. 631, 220 N.E.2d 532 (1966); Commonwealth ex rel Carroll v. Tate, 442 Pa. 45, 274 A.2d 193 (1971), cert. den., 402 U.S. 974, 91 S.Ct. 1665, 29 L.Ed.2d 138 (1971); O’Coins, Inc. v. Treasurer of County of Worchester, 362 Mass. 507, 287 N.E.2d 608 (Mass.1972).


author: CUTRER, Judge.

text:
    W.T. McCAIN, Judge, Plaintiff-Appellant, v. GRANT PARISH POLICE JURY, et al., Defendants-Appellees.
    No. 83-289.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    William J. Doran, Jr., Baton Rouge, for defendant-appellant.
    Durrett, Hardin, Hunter, Dameron & Fritchie, Ben W. Lightfoot, Baton Rouge, for plaintiff-appellant-appellee.

      Ernie Lynn Vallery, Pollock, and R. Gordon Kean, Jr. of Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, Baton Rouge, for plaintiff-appellee.
    Joseph P. Beck, II, Dist. Atty., Parish of Grant, Colfax, for defendants-appellants-appellees.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

For the reasons assigned in McCain v. Grant Parish Police Jury, 440 So.2d 1369 (La.App. 3rd Cir.1983), the judgment of the trial court dismissing this declaratory judgment is affirmed as it has become moot. Costs are to be paid by the Grant Parish Police Jury.

AFFIRMED.


text:
    CITY COURT OF BREAUX BRIDGE, Plaintiff-Appellant, v. TOWN OF BREAUX BRIDGE, Defendant-Appellee.
    No. 83-326.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Writ Denied Jan. 27, 1984.
    Durrett, Hardin, Hunter, Dameron & Fritchie, Ben W. Lightfoot, Baton Rouge, W. Glenn Soileau, Breaux Bridge, for plaintiff-appellant.
    McHugh & Guidry, Edmond Guidry, St. Martinville, for defendant-appellee.
    Before FORET, STOKER and YELVER-TON, JJ.
   STOKER, Judge.

By this suit the City Court of Breaux Bridge seeks to compel the Town of Breaux Bridge to pay certain expenses of the court including postage, printing of forms, telephone expenses, and the upkeep of the library.

The case arose through the filing of an application for writ of mandamus by the judge of the City Court addressed to the district court for the district in which the City Court is located. The district court ruled adversely to the city court and dismissed the application. The City Court appealed the dismissal. We reverse.

The Town takes the position, and the trial court so found, that its obligation to the City Court is limited by LSA-R.S. 13:2488.-76 which provides:

“The expenses of operation and maintenance of the courtroom and offices shall be paid by the town of Breaux Bridge.”

The trial court held that the expenses referred to in LSA-R.S. 13:2488.76 are confined to those necessary for the physical operation and maintenance of the City Court, not its operation as a court. Such expenses, according to the trial court, would encompass utilities, cleaning, painting, repairs, and upkeep.

The trial court also found, as contended by the Town, that the expenses sought by the City Court in this suit were provided for in LSA-R.S. 13:2488.78 which states:

“A. In all criminal matters, including traffic violation cases, the city judge may assess, in addition to the fine or other penalty imposed, costs of court in an amount not to exceed eight dollars.
“B. The proceeds derived from these costs shall be deposited in a special account which shall be subject to audit and shall be used for the operational expenses of the court, including but without limitation, the use from time to time for the costs of operating the court and for the employment by the judge of secretaries, accountants, stenographers, filing clerks, bookkeepers, reporters and other court employees, and for the purchase of stationery, books, office supplies and such other equipment, all as may be useful or necessary for the proper conduct of the court’s judicial business, and all as may be approved by the court. In addition, the proceeds derived from such costs in excess of that necessary for the proper conduct of the court’s business may, with approval of the judge, be paid in equal proportions into the treasury of the town of Breaux Bridge and into the treasury of the parish of St. Martin.”

The trial court noted that its ruling put the City Court in an awkward position as it now had to find more criminal defendants guilty in order to pay its expenses. The trial court suggested that relief be sought from the legislature.

On appeal the City Court contends (1) that the Town’s obligations to pay City Court expenses are not limited to LSA-R.S. 13:2488.76 but rest upon principles flowing from constitutional separation of powers, and (2) in the alternative, that the expenses provided in LSA-R.S. 13:2488.76 are not limited as found by the trial court.

We do not found our decision on the statutory authority considered and interpreted by the trial court. Rather we think the power of the City Court to require that all its necessary expenses of operating the court be provided by the legislative body of the Town lies in the inherent power of the City Court. A separate panel of this Court of Appeal has considered this same question relative to a district court of this state and the police jury of the parish which the district court serves. In W.T. McCain, Judge of the Thirty-Fifth Judicial District Court v. Grant Parish Police Jury, et al, 440 So.2d 1369 (La.App. 3rd Cir.1983), a panel of Judges Domengeaux, Guidry and Cutrer, in an opinion authored by Judge Cutrer, has held that “we ... find that courts have the inherent power to compel the guardians of the public fisc ... to budget adequate funds for the operations of the court to insure that the proper independence among our three co-equal branches of government be maintained.”

The members of this panel have considered, as a general proposition', the inherent power of courts of law to compel a branch of the same political body as the court serves which is responsible for funding the operations of that political body, to fund the judicial functions and operation of the courts. We arrive at the same conclusions which are expressed in the McCain case and adopt those conclusions as our own for purposes of this case.

We do not regard the statutes referred to above as constituting a limitation or negation of the inherent power possessed by the City Court of Breaux Bridge. The provisions of those statutes simply lay down certain specific directions to the Town and authorize the assessment of court costs and the use of funds derived from such assessment.

The remainder of this opinion will be addressed to the remaining issue raised by the Town. That issue is the contention by the Town that, regardless of inherent power, the City Court of Breaux Bridge in particular is not a court which enjoys such power.

The Breaux Bridge City Court is not one which is expressly established by the Louisiana Constitution. The City Court was established by the legislature pursuant to its authority in the Louisiana Constitution of 1921, Art. VII, sec. 51. The City Court was retained in Art. V, sec. 15 of the 1974 Constitution. Under the new Constitution, the legislature may no longer establish city courts, but has the authority to abolish those in existence.

The Town argues that because the City Court is “statutory” it does not have the inherent power accorded “constitutional” courts, i.e., those expressly provided for in the Constitution. We reject this argument. Art. VII, sec. 1 of the Constitution provides:

“The judicial power is vested in a supreme court, courts of appeal, district courts, and other courts authorized by this Article.”

The Breaux Bridge City Court is one authorized by Article VII of the Constitution; therefore, it is vested with the same inherent power as courts directly and specifically established by the Constitution. We note that at least one other state has taken this same position. In City of North Las Vegas v. Daines, 92 Nev. 292, 550 P.2d 399 (1976), the Nevada Supreme Court stated:

“It is, of course, true that our Constitution does not itself establish municipal courts. (Citations and footnotes omitted.) It authorizes the Legislature to do so. However, once municipal courts are established, they exist as a coequal branch of local government within the judicial department of this state, * * *, and a part of the constitutional judicial system of this state, * *

This position was reaffirmed by the Nevada Supreme Court in Azbarea v. City of North Las Vegas, 95 Nev. 109, 590 P.2d 161 (1979). We find, as did the Nevada court, that city courts are a part of the constitutional judicial system and, as long as they exist, are vested with the same inherent power as courts specifically mentioned in the Constitution.

The evidence regarding expenses of the City Court was admitted without objection. No claim is made that the expenses sought are not reasonable and necessary to the operation of the court, and it appears to us that the requested expenses are for the very basic services and supplies necessary to the operation of the court. Demand for payment of these expenses does not appear to be an abuse of the inherent power of the City Court.

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

IT IS NOW ORDERED, ADJUDGED AND DECREED that a writ of mandamus issue herein ordering the Town of Breaux Bridge, defendant, through its duly elected representatives constituting the governing authority of the Town of Breaux Bridge, to pay all reasonable unpaid expenses for the operation of the City Court of Breaux Bridge to include, although not by way of limitation, expenses for postage and mailing, printing of necessary forms, telephone costs, and upkeep and maintenance of the law library of the City Court of Breaux Bridge and other reasonable operating expenses germane to the operation of that court.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the effect of this order shall extend only to any net balance of expenses owed by the City Court of Breaux Bridge over and above any payments thereon which may have been paid by the City Court of Breaux Bridge itself.

All costs of court in this matter including the costs of this appeal are to be paid by the Town of Breaux Bridge.

REVERSED AND RENDERED; WRIT OF MANDAMUS ORDERED.


author: CURRAULT, Judge.

text:
    Glenn FAUCHEUX v. HOOKER CHEMICAL CORPORATION.
    No. 83-CA-466.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.
    Rehearing Denied Dec. 19, 1983.

      Paul G. Aucoin, Vacherie, for plaintiff-appellee.
    Darryl J. Foster, Lemle, Kelleher, Kohl-meyer & Matthews, New Orleans, for defendant-appellant.
    Before CURRAULT, GAUDIN and GRISBAUM, JJ.
   CURRAULT, Judge.

Plaintiff, Glenn Faucheux, brought an action in worker’s compensation for mental injuries sustained while in the course and scope of his employment with defendant, Hooker Chemical Corporation.

Plaintiff, a cell operator, was injured on or about June 29, 1979, when he was struck by high voltage electricity from a cell block. Plaintiff was taken to the emergency room at a local hospital where he was treated and sent home. He stayed at home for approximately seven days. After returning to work, he was given no duty for a period of about two weeks, at which point in time he returned to the cell block as an operator.

At this point plaintiff discovered that, as a result of the accident, he had developed fear of working in the cell block. He attempted to perform his job as an operator in the cell block for three or four days, but on July 31, 1979, discontinued working. No worker’s compensation benefits were paid as a result of the accident.

This suit was filed on August 22, 1980, alleging total and permanent disability due to fear and anxiety engendered by the accident of June 29, 1979.

Defendant Hooker Chemical Corporation (Hooker) filed an exception of prescription prior to trial on the merits, which was denied by the trial court. The case proceeded to trial on December 9, 1982, at which time the plea of prescription was reurged. After taking the matter under advisement, a judgment was rendered on March 29, 1983, in which the trial court again denied the exception of prescription and, further, found plaintiff totally and permanently disabled.

From that judgment, defendant Hooker perfects this appeal.

Appellant, Hooker, presents the following issues for our consideration:

(1) Whether the trial court erred in overruling Hooker’s plea of prescription; and
(2) whether the trial court erred in finding plaintiff totally and permanently disabled as a result of the June 29, 1979 accident.

Suit in this case was filed on August 22, 1980. Appellant contends that the action prescribed either (1) because the accident occurred on July 29, 1979; (2) because plaintiff’s last working day was July 31, 1979; or (3) because the payroll records reflect the date of termination as August 6, 1979.

Appellee, while admitting the correctness of the date of the accident and the date he discontinued working, claims his employment was not terminated until September 15, 1979. That date under the law, he argues, is the one from which prescription began to run.

The Workermen’s Compensation Act of 1975 in LSA-R.S. 23:1209 provides as follows:

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

More than one year had elapsed between the accident and the date suit was filed; however, since the injury herein did not develop immediately, the issue must be resolved under the “development of the injury” rule.

In determining the date that the injury develops, the Louisiana Supreme Court stated in Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522, 526 (La.1956):

“Development, as applied to a compensa-ble injury, signifies something more than occurrence and pain. It connotes the time when disability to perform work becomes manifest either to the injured employee or his employer.”

See also Mottet v. Libby-Owens-Ford Glass Co., 220 La. 653, 57 So.2d 218 (La.1952); Hobley v. Hartford Insurance Company, 233 So.2d 589 (La.App. 4th Cir.1970); Palmer v. Carter Federal Credit Union, 397 So.2d 50 (La.App. 2d Cir.1981); Gipson v. Dresser Industrial Valve Operations, A Division of Dresser Industries, Inc., 428 So.2d 1338 (La.App. 3d Cir.1983).

In Bolden v. Georgia Casualty and Surety Company, 363 So.2d 419 (La.1978), the Louisiana Supreme Court further discussed the holding in Wallace as follows:

“In context, this statement in Wallace was primarily applicable to the case of the retained employee, who continues to work with symptoms which might have been held to be disabling (if litigated) but which did not become manifestly disabling to the employee until he was forced to quit his work. We held that the disability did not become manifest or ‘develop’ until that date, because to select an earlier date ‘would be dealing in conjecture.’ 86 So.2d 525.
“In subsequent jurisprudence applying Wallace, the intermediate courts, in overruling pleas of prescription, held that the injury or disability did not ‘develop’ until the employee actually becomes unable to perform his former duties. This test is appropriate when, under the facts, the issue is whether the injured employee who returns to work is disabled at some conjectural time before the day when he actually is unable to continue at work due to his disability.” (Citations omitted at pages 421 — 422.)

Thus, when the employee returns to work, but is forced to terminate his employment because of the injury, prescription begins to run from that date. Meche v. Gulf Coast Pre-Mix Trucking, Inc., 383 So.2d 77 (La.App. 3d Cir.1980); Palmer, supra; Burleigh v. Argonaut Ins. Co., 347 So.2d 13 (La.App. 3d Cir.1977); Harris v. Seaboard Fire & Marine Ins. Company, 337 So.2d 262 (La.App. 2d Cir.1976).

Appellant contends plaintiff-appel-lee quit work on July 31,1979 when he gave into his anxiety and did not return to work; or, at the latest, August 6, 1979, the termination date on the payroll records. Appel-lee Faucheux testified, however, that although he physically stopped working for defendant corporation on or about July 31, 1979, at that time, he was asked by his supervisor, Jack Hurst, to get some type of medical report indicating that he was not able to work in the cell block. He testified that he was told that if he obtained such a report he could work in some other area of the plant. Plaintiff then went to see Dr. Phemester who had originally treated him for the electrical shock and Dr. Phemester referred him to Dr. Sidney Montz, a psychiatrist, who saw plaintiff on August 24, 1979. Plaintiff obtained a note from Dr. Montz which stated that he should not work in the cell block at Hooker, but should work in some other area of the plant. Appellee stated that he had to wait until September 15 to present this note to Jack Hurst because Mr. Hurst wasn’t available until then. When he did present the note, appellee testified that Mr. Hurst indicated that the note was meaningless and Mr. Faucheux then quit his job since he felt he would not be able to work again in the cell block due to his fear of electrocution.

The evidence presented by appellant to dispute the sequence of events, as set forth by plaintiff, was the testimony of George Haas, Manager of Employee Relations for appellant. The testimony is clear that he spoke not from personal observation or knowledge, but simply from records in his possession. He stated that appellee had resigned and that the last date of employment for Hooker, according to Payroll, was August 6, 1979. Appellee argues that this is not a contradiction to his testimony, but merely reflects the end of a pay period.

In brief, appellant also argues that a note signed by Dr. Montz which was introduced into evidence without objection is evidence of the implausibility of appellee’s story since the note was dated 1980. However, the testimony of Dr. Montz indicates he in fact did write such a note in August, 1979. On rebuttal, appellee explained that the document introduced was a duplicate requested for trial since the original was given to Mr. Hurst and was not available.

While the record lacks the trial judge’s reasons for finding that the claim had not prescribed, the trial judge apparently believed plaintiff-appellee’s version of the story and our review does not mandate a different result. Appellee apparently was forced to resign due to his anxiety in September, 1979; therefore the legal manifestation of the injury under the jurisprudence was in September, 1979. The suit filed August 22, 1980 was not prescribed.

Appellant submits secondly that the trial court was clearly wrong in finding appellee, Faucheux, totally and permanently disabled as a result of the June 29, 1979 accident. Appellee asserts contrarily that the evidence was sufficient to prove that the electrocution he suffered on July 29, 1979 caused plaintiff to develop anxiety (fear of injury) while working for Hooker which has continued to date and affects him in his present job.

Mental disabilities are compensable under the Louisiana Workmen’s Compensation Law. Victoriana v. Orleans Parish School Board, 346 So.2d 271 (La.App. 4th Cir.1977); Murphy v. Employers Mutual Insurance Company of Warsaw, et al, 248 So.2d 623 (La.App. 3d Cir.1971); Peavy v. Mansfield Hardwood Lumber Company, 40 So.2d 505 (La.App. 2d Cir.1949); Lala v. American Sugar Refining Company, 38 So.2d 415 (La.App.Orl.1949).

In the early Lala case, the court stated: “There is no doubt in our minds that nervousness, neurosis, or emotional disturbances, superinduced by injuries suffered by a workman, can be just as devastating to the ability to return to work as are physical or anatomical injuries, and are equally as compensable under the statute.” At page 421.

The condition, however, must be proven, as in any other disabling injury, by a preponderance of the evidence and the causal relation must be established. Andrus v. Rimmer & Garrett, Inc., 316 So.2d 433 (La.App. 3d Cir.1975); Victoriana, supra; Knight v. Southeastern Chemical Corp., 344 So.2d 67, (La.App. 4th Cir.1977). In Victoriana, the Fourth Circuit Court aptly noted:

“In such cases the court must proceed with utmost caution and exercise extreme care in view of the nebulous characteristics of the condition, and the possibility of the symptoms being easily feigned; the evidence in these cases should be scrutinized carefully and every precaution taken to guard against unjustified claims.” At page 273.

However, the court, in analyzing mental disability cases, must also “guard against the danger of denying recovery to a deserving plaintiff.” Knight, supra; Muse v. Sentry Insurance Co., 269 So.2d 609 (La.App. 3d Cir.1972). In the Knight case, the court also went on to state at page 69 that “awards for mental afflictions are permitted where the record disclosed plaintiff to be honest, sincere and truthful.” In addition, great weight should be given to the findings of the trial court in his evaluation of the credibility of plaintiff, as well as the other witnesses. Knight, supra; Canter v. Koehring, 283 So.2d 716 (La.1973).

In the case herein, appellee’s allegation of an anxiety syndrome was supported by the testimony of a psychiatrist, Dr. Montz, as well as the testimony of Mr. Jim Gros, the safety manager at Colonial Sugars, his present employer. The testimony of both witnesses was uncontradicted as appellants produced no medical testimony on its own behalf.

Dr. Montz examined appellee in August, 1979, and again three months prior to trial. In his opinion, after both interviews, appel-lee was suffering from an anxiety reaction related to the traumatic accident. He defined the anxiety reaction and its effects as follows:

“that a person experiences feelings — anxiety means fearfulness. It can — anxiety can be non-specific or free floating. That means that it is not connected to any one particular thing. Or, it can be specific and connected to one thing. What it means is that a person’s respiration are (sic) the physical symptoms, a person’s respiration increases, the heart beat increases, the hands become cold and clamy (sic) because of the shunking (sic) of the blood, dryness of the mouth. It can progress to becoming shaking and trembling and diminish concentration if the anxiety becomes greater.” (T.T. page 13)

The doctor went on to state that while appellee’s symptoms have diminished, he still suffers fear specifically when around machinery.

Mr. Gros testified to difficulties he has had with appellee in his present job due to appellee’s fear of being injured. At one point, appellee was given a leave of absence at the end of which he was told he would be terminated if he had not resolved the problem. He stated appellee returned to the job still suffering from the anxiety, but did the work as ordered. Mr. Gros testified appel-lee was continuing to have problems at date of trial.

Appellant argues that the testimony shows that three other psychiatrists had examined appellee, and alleges that appel-lee’s failure to call them as witnesses raises the presumption the testimony would have been adverse to plaintiff. Under the jurisprudence, it is well established that an adverse presumption arises upon the unexplained failure of a party to call a witness who possesses peculiar and material knowledge essential to that party’s case, when that witness is available to him, but the presumption is rebuttable. Judice Armature Works, Inc. v. Board of Commissioners of the Port of New Orleans, 410 So.2d 368 (La.App. 4th Cir.1982); Beal v. New Orleans Public Service, Inc., 365 So.2d 1118 (La.App. 4th Cir.1978). However, “This presumption is not sufficient to outweigh or overcome the positive testimony of medical doctors who did testify inasmuch as a litigant is not required to produce all witnesses who might have some knowledge as to the matter in dispute.” Comeaux v. Cameron Offshore Services, Inc., 420 So.2d 1209, 1213 (La.App. 3d Cir.1982); Boutte v. Mudd Separators, Inc., 236 So.2d 906 (La.App. 3d Cir.1970); Theriot v. Transit Casualty Co., 265 So.2d 845 (La.App. 3d Cir.1972), writ denied, 263 La. 106, 267 So.2d 211 (La.1972). The courts have held this to be particularly pertinent where the witness is equally available to the defendant. Comeaux, supra; Rushing v. Insurance Co. of North America, 391 So.2d 864 (La.App. 3d Cir.1980); Crandall v. Scott, 350 So.2d 922 (La. App. 4th Cir.1977).

In this case, both a qualified psychiatrist as well as lay testimony supported appellee’s claim of mental disability. Their uncontradicted testimony was sufficient to rebut the adverse presumption alleged by appellant. Thus, in our opinion, the trial court did not abuse its discretion in finding appellee is suffering from a traumatic anxiety syndrome resulting from the accident. However, appellant’s allegation that the trial court erred in finding appellee totally and permanently disabled does have merit.

LSA-R.S. 23:1221(2) states:

“For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of the injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds percentum of wages during the period of such disability.”

The statutory provision has been interpreted jurisprudentially to provide that a worker who cannot return to any gainful employment without suffering substantial pain is entitled to compensation benefits for total disability. Lattin v. HICA Corporation, 395 So.2d 690 (La.1981); Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981); Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980); Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La.1980). However, it is a further rule of law in Louisiana that substantial pain cases must also be analyzed within the framework of the Odd Lot Doctrine adopted by the Louisiana Supreme Court in Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980); See Bazile v. Pellerin Milnor Corp., 433 So.2d 1058 (La.App. 5th Cir.1983); Field v. Winn Dixie Louisiana, Inc., 427 So.2d 616 (La.App. 5th Cir.1983); Lattin v. HICA Corporation, supra; Wilson v. Ebasco Services, Inc., supra; Calogero v. City of New Orleans, 397 So.2d 1252 (La.1980); Dusang v. Henry C. Beck Builders, Inc., supra; Augustine v. Courtney Const. Co. of Alexandria, Inc., et al, 405 So.2d 579 (La.App. 3d Cir.1981).

The Louisiana Supreme Court, in Lattin v. HICA Corporation, supra, stated that:

“Under the odd lot doctrine, a claimant is considered totally disabled if his injury makes him an odd lot in the labor market, that is, one capable of obtaining employment periodically but one whose services are so limited in quality, dependability or quantity that a reasonably stable market for his services does not exist. An odd lot claimant need not be absolutely helpless to qualify for total disability. If the claimant can prove that his physical condition, mental capacity, education, training age or other factors combine to place him at a substantial disadvantage in the competitive labor market, he has made out a prima facie case for classification in the odd lot category. This satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The employer or insurer must then show that some form of gainful occupation is regularly and continuously available to the employee within reasonable proximity to the employee’s residence.
“The odd lot doctrine is also applicable to substantial pain cases because a worker who, due to his injury, can function only with substantial pain or with the help of fellow workers may not be considered a particularly desirable employee. Thus, if a claimant’s pain appreciably limits the types of work available to him and greatly diminishes his ability to compete in the labor market, he can be treated as an odd lot worker and be awarded total disability, unless there is proof that jobs are realistically available to him. On the other hand, if a worker cannot perform the same work that he did before his injury because it causes him substantial pain, but he has the mental capacity to perform other jobs which are available, he should be considered partially disabled. Dusang v. Henry C. Beck Builders, Inc., supra.” At pages 693-694.

Thus, if a worker cannot perform the same work that he did before his injury since it causes him substantial pain, but he has the mental capacity and physical capability to perform other jobs which are available, he should be considered partially disabled. LSA-R.S. 23:1221. Field v. Winn Dixie Louisiana, Inc., supra; Bazile v. Pellerin Milnor Corp., supra; Martin v. Orleans Parish School Board, 427 So.2d 83 (La.App. 4th Cir.1983); Dusang, supra.

As in the Dusang case, appellee herein has worked steadily since the accident in substantial pain. As in Dusang and Bazile, plaintiff’s present wages exceed those earned while in the employ of appellant Hooker. Little evidence was introduced here to show appellee’s injury diminishes his ability to compete in the labor market. On the contrary, the medical testimony specifically restricted his fear of re-injury to working with or around machinery.

The evidence does not indicate other forms of'gainful employment are unavailable to appellee. Thus, on the evidence before the court, it is our opinion appellee is properly classified as partially and permanently disabled. In that respect, R.S. 23:1221(3) provides:

“For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds percentum of the difference between the wages the employee was earning at the time of the injury and any lessor wages which the injured employee actually earns any week thereafter in any gainful occupation for wages.... ”

In the recent First Circuit case, Kirkley v. DSI Transports, Inc., 416 So.2d 584 (La.App. 1st Cir.1982), the court awarded permanent, partial disability benefits to a truck driver who returned to his former employment at a higher rate of pay than before. The court found him to be in substantial pain and said:

“For this reason, we hold that plaintiff is partially disabled, under La.R.S. 23:1221(3).... Should the pain become so overwhelming that plaintiff can no longer endure driving a truck, or should pain and impairment hinder plaintiffs job performance, causing DSI to dismiss him, then plaintiff will be protected from the loss of his income by his partial disabled status. See Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367, 372 (La.1980).” At page 589. See also Bazile, supra.

Accordingly we affirm, but amend the judgment to provide benefits to Faucheux for partial and permanent disability under LSA-R.S. 23:1221(3) and for worker’s compensation benefits to be paid for the period August 6, 1979 to October 8, 1979 (the months plaintiff-appellee was unemployed), payable weekly during the period of disability, but not beyond a maximum of four hundred fifty weeks, at the rate of sixty-six and two-thirds percentum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns or earned in any week, together with legal interest on each delinquent weekly payment from date of each delinquency until paid, and all medical costs and expenses; subject to credit for weekly payments made and medical expenses paid. Penalties and attorney’s fees are denied. Costs of this appeal are to be apportioned between the parties.

AFFIRMED IN PART, AMENDED IN PART AND RENDERED.


text:
    STATE of Louisiana v. Columbus Lee HOLMES.
    No. 16,082-KH.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 10, 1983.
    David G. Haynes, West Monroe, for defendant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Carl Parkerson, Dist. Atty., Nancy Gilliland, Asst. Dist. Atty., Monroe, for plaintiff.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   WRIT GRANTED AND MADE PEREMPTORY.

It is the ruling of this court that a motion for an appeal, whether timely or untimely, shall initially be filed in the district court in which the conviction is obtained. La.C.Cr.P. Art. 914; State v. Simmons, 390 So.2d 504. We decline to follow State v. Braxton, 428 So.2d 1153. The trial court is ordered to consider petitioner’s filings as a motion for an out of time appeal. The trial court is further ordered to make a determination as required by State v. Simmons, supra, to determine if the applicant is entitled to an out of time appeal. If it is established that the defendant did not make a knowledgeable waiver of his right of appeal the district court is ordered to enter an order of appeal.


author: GUIDRY, Judge. DOMENGEAUX, Judge,

text:
    Raymond JOHNSON, Plaintiff-Appellee, v. INSURANCE COMPANY OF NORTH AMERICA and Louisiana Seed Company, Inc., et al., Defendants-Appellants.
    No. 83-206.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 21, 1983.

      Provosty, Sadler & deLaunay, Albin A. Provosty, Alexandria, for defendants-appellants.
    Ford & Nugent, Howard N. Nugent, Jr., Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY, FOR-ET, CUTRER and DOUCET, JJ.
   GUIDRY, Judge.

The plaintiff, Raymond Johnson, brought this workmen’s compensation suit seeking benefits for total and permanent disability as well as statutory penalties and attorney’s fees. The defendants are his employer, Louisiana Seed Company, and its workmen’s compensation insurer, Insurance Company of North America. The trial court found that the plaintiff was totally disabled at the time of trial, awarding benefits at the maximum rate “until plaintiff is no longer disabled under the provisions of the Louisiana Workmans (sic) Compensation Act.” The plaintiff’s demand for penalties and attorney’s fees was denied. The defendants appeal. The plaintiff answers the appeal, re-urging his demand for penalties and attorney’s fees.

The issues presented by this appeal are (1) the correctness of the trial court’s finding that the plaintiff was disabled at the time of trial; and, (2) whether the defendant was arbitrary and capi’icious in terminating the plaintiff’s benefits, and thus liable for penalties and attorney’s fees.

FACTS

The plaintiff was employed by Louisiana Seed as a forklift operator. On July 23, 1981, the clutch on the forklift being operated by the plaintiff became stuck. While he attempted to correct the situation, the plaintiff’s ankle was pinned between the forklift and a wall. As a result of the accident, the plaintiff suffered a fracture of the right tibia, along with multiple abrasions of the leg and ankle. The plaintiff was hospitalized and placed under the care of Dr. Douglas Gamburg, an orthopaedic surgeon. The plaintiff was discharged from the hospital on July 28, 1981, after which he continued to see Dr. Gamburg. On November 23, 1981, Dr. Gamburg suggested that the plaintiff return to light duty work. Dr. Gamburg saw the plaintiff for the last time on January 8, 1982. In a letter sent on that date to the defendant, Louisiana Seed, Dr. Gamburg stated that the plaintiff had reached maximum medical recovery with no permanent functional impairment, and that the plaintiff was capable of returning to the work he was engaged in before the injury.

On February 10, 1982, the plaintiff was examined by Dr. Thomas C. Laborde, who specializes in physical medicine and rehabilitation. The plaintiff complained at that time of pain in his right ankle and in the right leg above the ankle. In his report, Dr. Laborde stated that while the plaintiff complained of pain, the pain he described was not severe. Dr. Laborde concluded that the pain was related to residual inflammation and fibrosis as well as muscular deconditioning. He recommended a program of vigorous exercise with a physical therapist to stretch and recondition the muscles in the plaintiff’s right leg. Dr. Laborde anticipated no residual physical impairment and/or disability. The plaintiff underwent a program of physical therapy beginning June 23, 1982 and ending with his final visit on July 22, 1982.

The plaintiff received benefits for temporary total disability from the date of the accident until January 8, 1982, the date of Dr. Gamburg’s final report. All benefits were terminated on the basis of this report. This suit was filed on May 4,1982, and tried on November 5, 1982.

DISABILITY

We first consider the correctness of the trial court’s determination that the plaintiff was totally disabled at the time of trial. The trial court based its determination on a finding that the plaintiff was unable to return to work without suffering substantial pain.

A worker who is unable to maintain gainful employment without suffering substantial pain is entitled to compensation benefits for total disability. Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981); Lattin v. HICA Corporation, 395 So.2d 690 (La.1981). A claimant is not disabled solely if he experiences some residual pain and discomfort upon attempting to work. In order for a claimant to be considered disabled due to pain, the pain accompanying routine physical tasks and attempts to return to work must be substantial, serious, intense and/or severe. Culp v. Belden Corporation, 432 So.2d 847 (La.1983).

The claimant bears the burden of proving to a legal certainty and by a reasonable preponderance of the evidence that he is disabled. Whether the claimant has met this burden must be determined by an examination of the entirety of the evidence, including both medical and lay testimony. Augustine v. Courtney Construction Company of Alexandria, Inc., 405 So.2d 579 (La.App. 3rd Cir.1981), writ. denied, 407 So.2d 735 (La.1981); Miller v. Electrical and Pneumatic Services, Inc., 434 So.2d 602 (La.App. 3rd Cir.1983).

On appellate review, the factual findings of the trial court concerning disability are entitled to great weight, and will not be disturbed unless clearly wrong. Culp v. Belden Corporation, supra; Crump v. Hartford Accident and Indemnity, 367 So.2d 300 (La.1979). In the instant case, our careful review of the record convinces us that the trial judge committed clear error in finding the plaintiff totally disabled at the time of trial.

The medical evidence consisted of the medical reports and depositions of Dr. Gam-burg and Dr. Laborde, and the deposition of the physical therapist who worked with the plaintiff, Eugene Noel. Dr. Gamburg’s report of January 8, 1982, stated that the plaintiff had reached maximum medical improvement with no permanent loss of physical function. In his deposition taken prior to trial, Dr. Gamburg restated this impression of the plaintiff’s condition as of January 8, 1982, the last time he saw the plaintiff. He stated that the fracture was minimal in terms of severity, and that if the plaintiff had not reached maximum medical improvement by January 8, 1982, he was certainly approaching maximum improvement.

Dr. Laborde examined the plaintiff once, on February 10, 1982. He testified that upon this examination he noted no significant swelling or atrophy in the plaintiff’s leg, and that the plaintiff made no complaints of significant pain. Rather, the pain was described to him by the plaintiff as moderate, intermittent pain. Other than the plaintiff’s complaints of pain, Dr. La-borde found nothing abnormal in his examination of the leg. In his report issued following the examination, Dr. Laborde expressed no opinion regarding the plaintiff’s ability to return to work. However, in his deposition taken prior to trial, he stated that he didn’t think the plaintiff was capable of returning to work at the time of the examination. Dr. Laborde recommended an aggressive program of physical therapy, and stated in his report that the plaintiff should have no significant residual impairment and/or disability.

Eugene Noel, the physical therapist who worked with the plaintiff from June 23, 1982 to July 22,1982, testified by deposition concerning the plaintiff’s progress during the program of physical therapy. Noel stated that on the last four visits made by the plaintiff, from July 19 to July 22, the plaintiff was performing very strenuous exercises with his leg with no difficulty and with no complaints of pain. Following the last visit, Noel suggested that the plaintiff go back to the referring physician, Dr. La-borde, to ascertain whether further therapy was recommended, because the plaintiff was functionally able to do anything asked of him in the therapy clinic. Johnson did not follow this suggestion.

In addition to his work with the plaintiff, Noel went to the Louisiana Seed warehouse at the request of counsel for appellants and actually engaged the foot pedals on the forklift formerly operated by the plaintiff. Noel stated that it required very little strength to depress the pedals on the forklift, considerably less than the strength required to operate the leg press used by the plaintiff in Noel’s therapy clinic. Noel stated that during his therapy the plaintiff performed between one hundred and one hundred and fifty repetitions per session on the leg press.

The trial judge relied heavily on the deposition of Dr. Laborde, who stated that he didn’t think the plaintiff was capable of returning to work at the time he examined him. The trial judge based his finding of disability at the time of trial on this testimony. In our view, the report of Dr. La-borde and his testimony support a contrary conclusion. In his report, Dr. Laborde stated that the plaintiff would not suffer significant residual physical impairment and/or disability as a result of the injury. This matter was tried over eight months after Dr. Laborde’s examination, and over three months subsequent to the plaintiff’s successful completion of the vigorous physical therapy program recommended by Dr. Laborde. Under these circumstances, Dr. Laborde’s opinion that the plaintiff was unable to return to work on February 10, 1982, is inconclusive with regard to the plaintiff’s condition at the time of trial, November 5, 1982.

We find no medical evidence in the record to support the trial judge’s conclusion that, at the time of trial, the plaintiff was disabled due to substantial pain. On the contrary, we find that all of the medical testimony in the record indicates that the plaintiff was not disabled at the time of trial.

The plaintiff and other lay witnesses who testified on his behalf all testified that the plaintiff’s right leg was constantly swollen and caused him pain every day. We would give this testimony more weight if it corroborated medical testimony showing that the plaintiff was in substantial pain. However, we find that the medical evidence clearly contradicts the lay testimony. While the determination of disability must be made from an examination of the totality of the evidence, including both medical and lay testimony, great weight must be given to uncontradicted medical evidence, almost to the point of exclusion of other evidence. Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975); Gauthier v. Helmerich & Payne Drilling, 401 So.2d 692 (La.App. 3rd Cir.1981). In the instant case, we find that the medical evidence, all of which indicates that the plaintiff was not disabled on November 5, 1982, is entitled to greater weight than the unsupported lay testimony. The trial judge’s finding that the plaintiff was disabled at the time of trial is clearly wrong.

Having concluded that the trial judge was in error, we must next determine the duration of the plaintiff’s disability. Viewing the evidence in a light most favorable to the plaintiff, we conclude that the plaintiff’s disability did not extend beyond July 22,1982. We first observe the conflict between the testimony of Dr. Gamburg and Dr. Laborde. Dr. Gamburg felt that the plaintiff was able to return to work as of January 8, 1982. Dr. Laborde felt that the plaintiff was still unable to return to work on February 10, 1982. Giving the plaintiff the benefit of this conflict, we find that his disability extended beyond February 10, 1982. However, we find that upon the plaintiff’s completion of the physical therapy program recommended by Dr. Laborde, he was no longer disabled from returning to his former employment. The evidence indicates that at that point, the plaintiff’s injury had healed with no significant residual physical impairment and/or disability, as was prognosticated by both Dr. Gamburg and Dr. Laborde. Therefore, we find that plaintiff is entitled to benefits for temporary total disability from the date of the accident until July 22, 1982.

PENALTIES AND ATTORNEY’S FEES

The defendant, Insurance Company of North America, terminated the plaintiff’s benefits on January 8,1982, the date of the report of Dr. Gamburg stating that the plaintiff had reached maximum medical improvement and was able to return to work. The plaintiff contends that this termination of benefits was arbitrary and capricious, entitling him to an award of penalties and attorney’s fees.

An insurer who terminates workmen’s compensation benefits shall be liable for penalties and attorney’s fees when such termination is arbitrary, capricious, and without probable cause. LSA-R.S. 22:658. When an insurer’s decision to terminate benefits is based upon competent medical evidence, the action is not arbitrary and capricious. Carter v. American Mutual Liability Insurance Company, 386 So.2d 1072 (La.App. 3rd Cir.1980); Crawford v. Al Smith Plumbing and Heating Service, Inc., 352 So.2d 669 (La.1977).

If, subsequent to an initial optimistic medical report, an insurer receives medical information showing that the claimant is disabled, the insurer may not avoid penalties for arbitrary nonpayment by blindly relying on the initial report. Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La.1976); Carter v. American Mutual Liability Insurance Co., Inc., supra.

In the instant case, we find no error in the trial judge’s refusal to assess penalties and attorney’s fees against the defendant. The plaintiff’s benefits were terminated on January 8, 1982, the date on which Dr. Gamburg found him able to return to his previous employment. The subsequent report of Dr. Laborde on February 10, 1982, does recommend further treatment of the plaintiff in the form of physical therapy, but in our view, this report falls short of establishing that the defendant was disabled at that time. Nowhere in the report does Dr. Laborde express the opinion that the plaintiff was disabled. On the contrary, the reports seems to indicate that the plaintiff was not in substantial pain, and therefore not disabled. Dr. Laborde found no significant reduction in strength, and stated that no significant pain was noted. Under these circumstances, we find nothing arbitrary and capricious in the defendant’s decision not to resume payment of disability benefits to the plaintiff.

As mentioned at the outset of this opinion, the trial court judgment condemns defendants to pay to plaintiff workmen’s compensation benefits “until plaintiff is no longer disabled under the provisions of the Louisiana Workmans (sic) Compensation Act.” The phraseology of this judgment leaves doubt as to whether the trial court intended to award compensation benefits for total and permanent disability under LSA-R.S. 23:1221(2) or whether it intended to award an “open-ended” judgment for temporary disability under LSA-R.S. 23:1221(1). In this connection, we observe that the trial judge, having determined, although as we have found eiToneously, that the plaintiff was disabled at time of trial, the proper judgment under such finding would have been for permanent disability. As stated in Husband v. Insurance Company of North America, 284 So.2d 787 (La.App. 4th Cir.1973):

“When a claimant seeking workmen’s compensation is disabled at the time of the trial, and the evidence is inconclusive regarding the degree of his recovery, it has been the practice of our courts to apply LSA-R.S. 23:1331 and award compensation for the maximum number of weeks allowed for permanent disability, reserving to the defendant the right to examine the plaintiff and revise the judgment after six months in the event the disability should terminate or lessen.” (footnote omitted)

See also Levine v. Liberty Mutual Insurance Co., 305 So.2d 665 (La.App. 3rd Cir.1974).

For purposes of our judgment, we will consider the trial court award to be one for permanent total disability and accordingly, for the reasons heretofore stated, that portion of the judgment of the trial court is reversed and judgment is now rendered in favor of plaintiff finding him entitled to temporary total disability benefits under the provisions of LSA-R.S. 23:1221(1) for the period beginning on July 23, 1981 and ending on July 22, 1982, subject to a credit in favor of the defendant for all compensation benefits previously paid. In all other respects, the judgment of the trial court is affirmed. Plaintiff-appellee is cast for all costs of this appeal.

REVERSED IN PART; AFFIRMED IN PART; AND RENDERED.

DOMENGEAUX, J., dissents and assigns reasons.

DOMENGEAUX, Judge,

dissenting in part.

I respectfully suggest that the majority errs seriously in two instances: It projects manifest error on the findings of the trial judge and it disregards the guidelines of Tautillo.

Obviously, the fact trier placed much emphasis on the testimony of Doctor Laborde, whose conclusion concerning plaintiffs disability was bolstered and fortified by strong and substantial lay testimony. It is difficult for me to ignore Doctor Laborde’s opinion that the plaintiff was incapable of returning to work at the time he examined him. For the majority to speculate that plaintiff was capable of returning to work at the time of trial, is exactly that,-speculation. This should not be a basis to overturn the trial judge’s conclusions.

We should allow the finding of permanent total disability to stand. It is elementary of course, that should plaintiff’s condition ultimately improve to a point where he is no longer legally disabled, the defendants can reopen the case after six months.

      . We observe that Dr. Laborde’s report of February 10 is somewhat ambiguous. While he opined that the plaintiff was at that time unable to return to work, he found no significant swelling or atrophy in the leg, and stated that plaintiff had no complaints of significant pain.

      . Dr. Laborde did not express the opinion that the plaintiff was disabled until he was deposed on September 30, 1982.


author: DUFRESNE, Judge.

text:
    Norman A. LAMBERT v. COLONIAL SUGARS CO., a Subsidiary of the Borden Corp, and Their Workmans Compensation Insurer, the Insurance Company of North America.
    No. 83-CA-366.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1983.
    Rehearing Denied Dec. 19, 1983.
    Robert R. Faueheux, Jr., Reserve, for plaintiff-appellant.
    Young, McMahon & Richaud, George J. Richaud, New Orleans, for defendants-ap-pellees.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   DUFRESNE, Judge.

Norman A. Lambert, plaintiff, brings this appeal from an adverse judgment in his suit for Workmen’s Compensation benefits brought against his former employer, Colonial Sugars Company, and their insurer, The Insurance Company of North America, defendants. Because we find no manifest error in the trial court’s determination that plaintiff failed to show by a preponderance of the evidence that his present disability was caused by his employment activities or environment, we affirm.

The facts of the case are these. Lambert was employed by Colonial for over 25 years. He was exposed regularly to “bone black” dust, and occasionally to asbestos, during the last seven or eight years of that employment. In 1979, he began suffering from disabling shortness of breath and chest pains. He was diagnosed as having fibrosis or scarring of the lungs, a condition which can be caused, among other things, by asbestos inhalation. When so caused, the condition is known as asbestosis.

Lambert sought workmen’s compensation benefits from Colonial, alleging that his lung condition resulted from exposure to “bone black” and asbestos. When these benefits were denied, this lawsuit followed. After trial on the merits, the district court determined that Lambert had failed to show by a preponderance of the evidence that his lung condition was caused by exposure to either “bone black” or asbestos, and judgment was therefore entered for Colonial. It is from this judgment that Lambert now brings this appeal.

It is settled law that factual determinations made by a trial court will not be disturbed on appeal unless those determinations are manifestly erroneous, Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). It is equally settled that a plaintiff in a workmen’s compensation case bears the burden of proving his claim by a preponderance of the evidence, Juneau v. Tulane Industrial Laundry, 358 So.2d 347 (La.App. 4th Cir.1978). Applying these principles to the case before us, we conclude, as did the trial court, that the plaintiff simply failed to meet his burden of proof.

It is not contested here that Lambert failed to offer any evidence to support his original allegation that his disability may have been the result of “bone black” exposure. Indeed, the results of tests conducted on request of his own treating physician failed to disclose any link between this substance and Lambert’s lung condition.

As to asbestos exposure, being the cause of the disability, there was some testimony in plaintiff’s favor. This testimony, however, was far outweighed by contrary testimony on defendant’s behalf.

Plaintiff’s case was as follows. He was exposed to asbestos pipe insulation some twelve times per year for the last eight years of his employment. His job during those years required him to repair small pipes, and in so doing the asbestos insulation had to be removed. His treating physician, after studying x-rays of Lambert’s lungs, was of the opinion that they revealed classic signs of asbestosis. He further stated, however, that the average minimum latency period between exposure to asbestos and the actual appearance of asbestosis is ten years.

In rebuttal, defendants introduced testimony by two other physicians. The first, a pathologist, had performed an examination of tissue removed from Lambert’s lung during the summer of 1981. His unequivocal finding was that there was absolutely no asbestos present in that tissue. The second doctor, an acknowledged expert on asbestosis, stated that asbestosis cannot be diagnosed without the presence of asbestos fibers m the lungs. His further testimony was that generally the minimum latency period between exposure and onset of the disease is 15 years. He also said that a worker would have to be exposed on an almost daily basis to large amounts of asbestos dust to contract the disease within that period. After examining Lambert twice, and reviewing his medical records, and considering the minimum level of asbestos exposure involved, it was this physician’s firm conclusion that the plaintiff did not have asbestosis.

On this evidence, the trial court concluded that defendant’s evidence was more persuasive, and therefore that plaintiff failed to carry his burden of proof by a preponderance of the evidence. We find nothing manifestly erroneous in this determination.

Plaintiff also alleges here that testimony by an official of Colonial to the effect that no other employee of the company had ever contracted asbestosis was incorrect. While there is nothing in the record to substantiate this allegation, even if it were accepted as true, we fail to see what bearing this fact could possibly have had on the outcome of the present suit, and therefore find this argument meritless.

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

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Janelle HENDRICK, Plaintiff-Appellee, v. W. Ronald HENDRICK, Defendant-Appellant.
    No. 83-186.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      Bernard Kramer, of Kramer & Hammill, Alexandria, for defendant-appellant.
    Trimble, Randow, Percy, Wilson & Foote, Elizabeth E. Foote, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

This is a family law case. On October 19, 1982, Janelle Hendrick filed suit for separation from bed and board against her husband, W. Ronald Hendrick. In her petition, Mrs. Hendrick also sought custody of the minor child of their marriage, child support, alimony pendente lite, exclusive occupancy of the family home, and an injunction against Mr. Hendrick prohibiting him from alienation or encumbrance of community assets.

The trial judge determined that Janelle Hendrick was entitled to alimony pendente lite and child support. In his written reasons for judgment, the trial judge condemned Mr. Hendrick to pay $250.00 per month as alimony pendente lite and $200.00 per month as child support for the minor child. He was granted a devolutive appeal from this judgment, and his wife answered the appeal seeking an increase in both the alimony and child support awards.

The only issue presented for our consideration is whether the trial court erred in finding that Janelle Hendrick was entitled to receive alimony pendente lite and child support payments.

FACTS

On August 24, 1982, W. Ronald Hendrick left the matrimonial domicile. His wife then filed a petition for separation from bed and board on October 19, 1982, based upon grounds of abandonment and mental cruelty. Shortly thereafter, Mr. Hendrick, an insurance company representative, received notice of termination from his employer, effective October 31, 1982. The letter stated reasons for termination due to poor job performance, e.g., excessive lateness, failure to make calls, and refusal to keep office hours. At the time of the suit, Mrs. Hendrick had been employed for two years as a secretary for an insurance company.

At trial, Janelle Hendrick testified that W. Ronald Hendrick had a problem with habitual intemperance. She also revealed that Mr. Hendrick refused treatment for his drinking problem despite repeated efforts by his family, friends, and business associates to help through an “intervention,” and a substance abuse clinic.

Mr. Hendrick testified at trial that he was currently unemployed but that he was actively seeking employment and that he expected to return to work in the near future.

ALIMONY PENDENTE LITE AND CHILD SUPPORT AWARD

Petitioner contends that the trial court committed error of law in granting an award of alimony pendente lite and child support. He argues that the trial judge failed to take into account his means. We find no manifest error in the judgment of the trial court.

In the ruling of the court, the trial judge stated:

“Since the defendant, W. Ronald Hen-drick, is temporarily unemployed, the court will award Janelle Hendrick the amount of TWO HUNDRED FIFTY ($250.00) DOLLARS per month alimony pendente lite and an additional TWO HUNDRED AND NO/100 ($200.00) DOLLARS per month as support for the minor child ...”

It is clear from this reasoning that the trial judge considered the petitioner’s employment situation in making the determination for alimony pendente lite and child support. The trial judge acted under the direct authority of the Louisiana Civil Code.

Civil Code Article 148 grants the trial judge wide discretionary power to award alimony pendente lite:

“If the spouse has not a sufficient income for maintenance pending suit for separation from bed and board or for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse’s support, proportioned to the needs of the claimant spouse and the means of the other spouse.”
“Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.”

We find that the trial judge carefully analyzed the needs of the claimant spouse in proportion to the means of the other spouse. Janelle Hendrick required the amounts awarded in order to meet the family’s essential monthly expenses, e.g., the house mortgage, utilities, food, and medical bills. It is apparent that the trial court assessed appellant’s means, i.e., his ability to pay, his current bank account balance, access to his mother’s savings account, ownership in property, and additional assets. The income of the other spouse is not the sole criterion in determining what his means are with which to satisfy alimentary obligations under La.C.C. Art. 148. Ryan v. Ryan, 401 So.2d 514 (La.App. 2nd Cir.1981). Further, the other spouse has an obligation under La.C.C. Arts. 148 and 227 to provide the support for the claimant spouse and children and when necessary he is required to reduce his expenses or to have the funds to pay these high priority obligations. Kellogg v. Kellogg, 375 So.2d 200 (La.App. 2nd Cir.1979).

The fixing of the amount of alimony pendente lite awarded to the claimant spouse and the amount which a parent is required to contribute towards the support of a minor child is largely within the sound discretion of the trial judge and his conclusions will not be disturbed on appeal unless there has been a clear abuse of that discretion. See Desormeaux v. Brignac, 408 So.2d 32 (La.App.3rd Cir.1981); Gravel v. Gravel, 331 So.2d 580 (La.App.3rd Cir.1976).

It is our opinion that the trial court did not abuse its discretion in awarding plaintiff $250.00 per month as alimony pen-dente lite and $200.00 per month as child support. Massie v. Massie, 436 So.2d 739 (La.App.3rd Cir.1983).

DECREE

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs of this appeal are assessed equally between plaintiff and defendant.

AFFIRMED.

      . Janelle Hendrick and W. Ronald Hendrick were married for twenty-one years, with two children, ages 20 and 16.

      . A hearing pursuant to rule filed by plaintiff was held on November 8, 1982, concerning the issues of child custody, child support, alimony pendente lite, occupancy of the family home, and the injunction against disposition of the community property. Both parties stipulated to a temporary child custody award to Janelle Hendrick (subject to reasonable visitation rights), her right to occupy the family home, and both parties’ right to injunctive relief regarding the community property (as specified in La.C.C. Art. 149).

      . W. Ronald Hendrick’s previous salary had been $30,000.00 per annum plus commissions. At the time of the hearing, he was to receive weekly unemployment compensation benefits of $202.00.

      . She earned a gross monthly income of $1,100.00.

      .Implicit in this determination is that Mr. Hen-drick’s adverse economic condition was not caused by circumstances beyond his control. See Burgett v. Burgett, 390 So.2d 1390 (La.App. 4th Cir.1980).