author: BARRY, Judge.

text:
    Theodore AUFDEMORTE v. DEPARTMENT OF POLICE.
    No. CA-0660.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 13, 1983.
    Felix C. Orsini, New Orleans, for plaintiff-appellee.
    Avis Marie Russell, Deputy City Atty., Douglas P. Wilson, Chief Deputy Atty., Salvador Anzelmo, City Atty., Bruce E. Nac-cari, Asst. City Atty., New Orleans, for defendant-appellant.
    Before BARRY and WARD, JJ., and REMY CHIASSON, J. Pro Tem.
   BARRY, Judge.

Theodore Aufdemorte, a 14-year veteran of the New Orleans Police Department, spent three hours in a coffee shop during his duty shift and falsified his daily trip sheet. He was demoted from probationary status as Police Office II, suspended for 15 days, and transferred from motorcycle duty to district patrol. The Civil Service Commission found mitigating circumstances and reversed the suspension, and the Police Department now argues the Commission erred.

Lt. Kavanaugh, Officer Aufdemorte’s superior, discovered discrepancies between the times on traffic citations issued by Aufde-morte and times and locations on his trip sheet. When confronted Aufdemorte candidly admitted he “spread out” the times to cover up the time at the coffee shop. Aufdemorte testified that on the preceding day he burned his hand on his motorcycle exhaust pipe and the prescribed medication made him drowsy.

Officer Aufdemorte said although police regulations require an officer who becomes ill on duty to report to his superior, there is an “unwritten code that you just don’t bother them.” Lt. Kavanaugh corroborated Aufdemorte’s testimony that a few days before the incident, Kavanaugh warned his men that use of sick leave would be considered in promotions and told Aufdemorte to “go easy” on sick leave.

The Commission found that, while “the intentional falsification of official reports is a serious offense,” there were several mitigating factors. The Commission cited the effects of Aufdemorte’s medication and that he had to stay somewhere until his drowsiness wore off. The Commission felt Aufdemorte should have been out on sick leave, but the Police Department “is partially culpable for discouraging the use of sick leave.” The Commission also found “[ajnother mitigating fact is that appellant voluntarily reported his absence from duty.” The Police Department correctly points out that Aufdemorte did not report his absence from duty until confronted with the discrepancies; however, the Commission obviously felt Aufdemorte’s prompt, honest admission was a mitigating factor. .

The Department contends Aufdemorte’s dereliction constitutes legal cause for some disciplinary action and “the Commission was without authority to substitute its judgment for that of the appointing authority.” The Department relies on Branighan v. Dept. of Police, 362 So.2d 1221 (La.App. 4th Cir.1978) where we discussed the Commission’s authority to alter sanctions imposed by an appointing authority:

The legal basis for any change in a disciplinary action can only be that sufficient cause for the action was not shown by the appointing authority. The protection of civil service employees is only against firing (or other discipline) without cause.
We specifically noted that:
Cause justifying a one-day suspension might not justify a dismissal, and therefore — and in that sense — the Civil Service Commission’s authority “to hear and decide” disciplinary cases, Const. Art. 10 § 12 includes authority to modify (reduce) as well as to reverse or affirm a penalty. See Brickman v. New Orleans Aviation Board, 1958, 236 La. 143, 107 So.2d 422; Bernard v. Louisiana H & H.R.A., La.App. 1 Cir.1976, 336 So.2d 55. But for example, cause justifying a 25-day suspension very probably would also justify a 30 day suspension and the Commission’s authority “to hear and decide” an appeal from a 30-day suspension would therefore very probably not include authority to reduce the 30-day suspension to 25 days. The Commission does not have the authority to reduce a penalty except upon a determination that there is insufficient cause for the greater penalty.

Under Art. 10 § 12 of the La. Constitution, the appointing authority, not the employee, bears the burden of proving the propriety of any disciplinary action taken against the employee. There is no presumption of correctness attached to the sanctions imposed by a governmental department against an employee. Newman v. Dept. of Fire, 425 So.2d 753 (La.1983).

Apparently the Commission, considering all circumstances, felt the multiple penalties were overly harsh and not consonant with Aufdemorte’s offense. In fact, the Commission deemed the Department’s action so inequitable it would have reinstated Aufdemorte to his former rank but was without authority to do so because it was probationary.

We will not disturb the Commission’s decision absent manifest error, arbitrariness or capriciousness and affirm at defendant’s costs.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Shirley DOBARD v. STATE FARM INSURANCE COMPANY.
    No. CA-0719.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 13, 1983.
    John B. Perry, Gertler & Gertler, New Orleans, for plaintiff-appellant.
    C. Gordon Johnson, Jr., Porteous, Haink-el, Johnson & Sarpy, New Orleans, for defendant-appellee.
    Before BARRY and WARD, JJ., and REMY CHIASSON, J. Pro Tem.
   BARRY, Judge.

Plaintiff’s action for damages against her uninsured/underinsured carrier was dismissed even though the release of “... all other persons, firms and corporations” was stricken from the written settlement.

The facts are not in dispute. Plaintiff Shirley Dobard was driving her mother to the Lafon Nursing Home after a family Christmas visit. In order to turn left off Chef Menteur Highway, Ms. Dobard stopped in the “u” turn lane because of oncoming traffic and was rear-ended by a 1979 Ford driven by Mark Wiltz. The Wiltz vehicle was owned by the driver’s father, Claude A. Wiltz, Sr., and was insured by Liberty Mutual Insurance Company. On September 10, 1980, plaintiff signed a written release in favor of Liberty Mutual and both Wiltzes for the $5,000.00 policy limit. The release included the standard printed verbiage “... all other persons, firms and corporations .... ”

On December 28,1981, plaintiff filed this suit against State Farm Mutual Insurance Co., her uninsured/underinsured carrier, urging the settlement failed to fully compensate her. Plaintiff presented her entire case then State Farm moved for a directed verdict. The Trial Judge reserved his ruling and State Farm presented its case which consisted of the introduction of its policy (with a $25,000 uninsured motorist limit) and the deposition of Dr. Harold Stokes. The Trial Judge then dismissed plaintiff’s suit and held that deletion of “.. . and all other persons, firms and corporations ...” did not result in an “express” reservation of plaintiff’s rights against State Farm as required by LSA-C.C. Art. 2203 . Thus he held since the uninsured motorist carrier and the tortfeasor are co-debtors in solido, Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La.1982), the release of one co-debtor in solido without the express reservation against the other resulted in the discharge of State Farm.

Plaintiff urges the Trial Judge erred in:
1. holding that plaintiff’s scratching out of “... and all other persons, firms and corporations ...” was not sufficient to reserve her rights against her own uninsured motorist carrier;
2. applying the Hoefly decision to this case; and
3.allowing the defendant to plead the affirmative defense of “extinguishment of the obligation in any manner” on the morning of trial and over plaintiff’s objections in contravention of LSA-C.C.P. Art. 1005 .

THE RELEASE

Plaintiff argues her scratching out of the phrase "... and all other persons, firms and corporations ...” negated any intent to release the other co-debtor in soli-do (State Farm) and was therefore sufficient to meet the codal requirement of LSA-C.C. Art. 2203. State Farm counters that the deletion was not enough because the Code and cases require a writing or some language from which an express reservation of rights can be inferred and urges that we read the release without reference to the deleted provision.

Our Supreme Court said in Cusimano v. Ferrara, 170 La. 1044, 129 So. 630 (La.1930) at 632:

There is nothing sacramental about the form in which the reservation shall be made, and, since no one is presumed to renounce a right unless it clearly appear that he intended to do so, it follows that it suffices that the intention to reserve the right against codebtors may be inferred from any expression in the release of one codebtor which negatives the intent to release the other codebtors.
⅜ * *: * * *
* * * [A] clearly expressed intention not to abandon a right is a clearly expressed intention to reserve it.

See also Honeycutt v. Town of Boyce, 341 So.2d 327 (La.1977) and cases cited at p. 331.

In Cusimano two separate releases of two co-debtors were reviewed. In one the creditor declared the release was made “with full and complete reservation of all my rights against all other judgment debtors in said suit.” In the other the judgment creditor authorized cancellation of a judicial mortgage only insofar as it affected the second co-debtor’s property and added “in all other respects the said judgment is to remain in full force and effect.” Thus, in both the remaining co-debtors were not specified, but the provisions were held adequate to meet the codal standard.

* * sfs * * *
* * * * * *

We are satisfied that plaintiff clearly intended to restrict her settlement to those specified in the release, and her intent was manifest by her deletion of the words “... and all other persons, firms and corporations ...The altered release does not provide an unconditional discharge of all co-debtors. When plaintiff lined through the catch-all phrase, she expressly limited the release to those specified, thereby making it evident she was not fully compensated by the settlement and would proceed against others.

The insurance statute mandates uninsured motorist coverage unless rejected by the insured. LSA-R.S. 22:1406. Our conclusion is in accord with the logic in the above cases and in furtherance of the avowed legislative aim evidenced by the 1974 Amendment to the uninsured motorist statute: to promote (rather than defeat) full recovery by insureds who have paid premiums for this coverage.

Accordingly, we hold the Trial Judge erred in deciding the release effected a discharge of State Farm.

LIABILITY

There is no dispute as to negligence. “[W]hen a following vehicle collides with the rear of a preceding vehicle, the following vehicle is presumed to be at fault and bears the burden of exculpating himself from the inference of negligence.” Hebert v. Lefty’s Moving Service, 389 So.2d 855, 857 (La.App. 4th Cir.1980). No evidence was adduced to controvert Ms. Dobard’s version of the accident, and defendant, in its Answer, admitted that Wiltz rear-ended the Dobard vehicle. Plaintiff testified she activated her left turn signal, stopped in the “u” turn lane and was rear-ended by the Wiltz vehicle. We are convinced the sole cause of the collision was the negligence of Mark Wiltz and Ms. Dobard was free from fault.

DAMAGES

Under the Louisiana Constitution (Art. 5 § 5) and as directed by Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975), we are to assess appropriate damages.

In 1974 Ms. Dobard fell backwards off a chair and the fall resulted in a herniated cervical disc. In March of 1977 Dr. Kenneth Vogel performed a fusion and discharged her in September, 1977 with a 10-15% permanent impairment. He felt she experienced excellent results from the surgery which left only midline neck pain without radiation and a mild limitation of motion in her neck. Ms. Dobard, her husband and daughter each testified plaintiff had completely recovered from the surgery and was only mildly limited in her activities.

This accident occurred almost three years after the fusion. Ms. Dobard testified she did not suffer immediately but a few hours later she began to feel pain up and down her spine. The next morning she was taken to Flint Goodridge Hospital Emergency Room where she saw Dr. Woods who prescribed pain medication and hot baths for a month. She returned to Dr. Vogel ten times during the two and a half years following the accident.

Dr. Vogel first saw her on February 7, 1980 (6 weeks post-accident). He had not seen her since her discharge in September, 1977 after the disc surgery. Ms. Dobard complained of cervical, bilateral shoulder, as well as right arm pain and headaches. She had mild limitation of motion in all directions, moderate left muscle spasm, moderate left brachial plexus tenderness, hy-palgesia of the second, third and fourth fingers of the hand, reflexes were plus two and there was a point of tenderness on the lower cervical facets bilaterally. He felt she had a probable recurrent herniated cervical disc and recommended physical therapy consisting of moist heat, massage and traction. He prescribed Darvon for pain and told Ms. Dobard to return in one month.

During February plaintiff had physical therapy 13 times. Her next visit to Dr. Vogel was on March 6, 1980. (10 weeks post-accident). Her pain had diminished but she continued to have headaches, cervical and fight arm pain. Her neurological exam was unchanged but the muscle spasm was now considered mild. On April 10, 1980 the exam was basically the same and Dr. Vogel prescribed a cervical collar. On May 8, 1980 she was slightly improved but still had mild muscle spasm and pain and Dr. Vogel told her to return when needed.

Over the next two years, Ms. Dobard saw Dr. Vogel six times: August 19, 1980; October 28,1980; November 17, 1981; May 4, 1982; June 10,1982 and July 15,1982. Her condition remained relatively unchanged through her discharge on July 15, 1982. She continued to have mild muscle spasm, neck pain, intermittent right hand and arm pain, mild limitation of motion, mild brachial plexus tenderness, reflexes plus two, hy-palgesia of second and third fingers of the right hand. Dr. Vogel felt she had a herniated cervical disc but stated he could not be certain without a myelogram. He stated the discomfort she was having would be permanent and her disability the same as after the 1977 surgery, but her “functional impairment” more severe.

Her condition in September, 1977 was very different from in February, 1980. In 1977 she had only midline neck pain without radiation (into arms and shoulders), only mild limitation of motion in her neck, and the rest of the neurological exam was normal. By comparison, in February, 1980, she had neck pain that radiated into both shoulders and her right arm, and she had inter-scapular pain and headaches. The neurological exam was not normal. She had mild limitation of motion, moderate muscle spasm, moderate left brachial plexus tenderness, hypalgesia of the second, third and fourth fingers of the right hand and tenderness of the lower cervical facets bilaterally.

Ms. Dobard was also seen by Dr. Harold Stokes at the request of Liberty Mutual (Wiltz’s liability insurer). Dr. Stokes, an orthopedic surgeon, examined her only once on April 9, 1980. (15 weeks post-accident). He found neither muscle spasm nor neurological abnormalities and concluded that any aggravating factors had passed and she could resume pre-accident activities.

Several witnesses testified that plaintiff could not engage in the same activities after the accident. Plaintiff’s husband, Hubert Dobard, testified plaintiff was extremely upset, but prior to the accident she had participated in normal family activities. He said that two months before the accident they had moved into a new home and she assisted in the move. She used to dance, play ping pong, sew and cook. In his opinion she had recovered from the 1977 surgery. She never complained of pain until the accident. Now her activities are severely limited and she is not as “amou-rous” and their relationship has suffered. Before she was “so congenial with everything and so patient” — now even insignificant remarks aggravate her. Plaintiff’s daughter, Valli Truehill, testified that before the accident she and plaintiff visited often and they would meet for lunch downtown, take the children skating and to the zoo. She stated after the accident her mother did not participate in any activities and she did not sew or prepare food for holiday dinners. She could not do the grocery shopping or more than one or two loads of laundry. Ms. Truehill was aware plaintiff suffered headaches and neck pain and that she occasionally needed a neck brace (always when in the car). Ms. Nettie Bundy, a friend for ten years, corroborated that plaintiff was not able to participate in the same activities after the accident as before. She related the first time she saw plaintiff after the accident was at Schweg-mann’s and stated: “I could not believe what I saw .... I saw a different Shirley .... I was really stunned .... ”

Ms. Dobard testified that after the 1977 surgery she could do everything but lifting. She could sew, garden, play ping pong, piano, skate and dance. She stated that in the move to their new home she packed and unpacked everything. Just before the accident she had the whole family over for Christmas dinner and had done all her own Christmas shopping. She stated she was in good shape, felt like a normal person, and was free of pain. After the accident she lost her rosebeds because she could not keep them up. She could only sit at the piano for a half hour before feeling pain in her neck and shoulders. She stated she rarely drives, no longer makes long car trips, and must rely on her husband for grocery shopping. She stated she has pain “most of the time,” particularly after over-exerting or sleeping in the wrong position. The pains are in her head, neck, shoulders and intermittently her right arm.

The observations of Dr. Vogel, the treating physician, should be accorded greater weight than those of a physician who has examined the plaintiff only once and then only for the purpose of litigation. Rodriguez v. American International Ins. Co., 394 So.2d 621 (La.App. 3d Cir.1981).

Considering this plaintiff’s circumstances and her injuries, we feel she is entitled to Twenty-Five Thousand ($25,000) Dollars for past and future pain and suffering, minus $5,000 paid by Liberty Mutual, plus compensable medicals of Six Hundred Fifty-Six ($656) Dollars.

The judgment of the district court is reversed and judgment is now rendered in favor of plaintiff in the amount of Twenty Thousand Six Hundred Fifty-Six ($20,-656.00) Dollars with legal interest from judicial demand, plus all costs including an expert fee of $200 for Dr. Vogel.

REVERSED AND RENDERED.

      . LSA-C.C. Art. 2203 provides in pertinent part:
      The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.

      . LSA-C.C.P. Art. 1005 provides in pertinent part:
      The answer shall set forth affirmatively * * extinguishment of the obligation in any manner ....

      . Act 154 of 1974 in effect made uninsured motorist coverage “excess” coverage.

      . The uninsured carrier is entitled to an offset for any recovery from the legally responsible party. LSA-R.S. 22:1406(D)(4).

      . The therapy bill for $450 was paid by Liberty Mutual but included $180 for the prior accident. The bill adds up to $414, minus $180, for thirteen treatments at $18 each. Dr. Vogel had two conferences with plaintiffs attorney which cannot be included, leaving a balance of $360 for office visits. X-rays cost $62.


author: LOBRANO, Judge.

text:
    Melanie Ann Leavitt, wife of John Alan MEUNIER v. John Alan MEUNIER.
    No. CA-0630.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 13, 1983.

      Barbara G. Danos, Kierr, Gainsburgh, Benjamin, Fallon & Lewis, New Orleans, for defendant/appellee.
    Rudolph R. Schoemann, New Orleans, for plaintiff/appellant.
    Before REDMANN, GULOTTA and LO-BRANO, JJ.
   LOBRANO, Judge.

Melanie Ann Leavitt (Melanie), and John Alan Meunier, (John) were divorced by judgment of the Civil District Court, Parish of Orleans, on July 14, 1980. Melanie was awarded custody of their only minor child, Adam, and child support of $40.00 per week to be increased annually by $5.00 per week beginning June of each succeeding year.

On February 9, 1982, Melanie delivered physical custody of the minor child to John, and subsequently went to Honduras with her new husband. Prior to Melanie’s departure, John filed a rule for child custody which was personally served on February 16,1982. On March 10,1982 he also filed a rule for child support. Service of same was attempted on Mr. Schoemann who was still Melanie’s attorney of record at that time. He refused service, however, indicating he no longer represented her. Both rules were set for March 22, 1982 at which time Gray-mond Martin appeared on Melanie’s behalf as she was still in Honduras. A consent judgment was agreed to by both parties in which John was given custody of the minor, and child support in the amount of $45.00 per week to be increased by $5.00 per week beginning June 1st of each year.

Subsequently in July of 1982, John filed a rule for increased child support, as well as a rule for contempt and for judgment making past due child support executory. Melanie responded by filing a “Motion to Terminate, Suspend and/or Reduce Child Support and For Visitation Rights”. In that pleading, she claimed the March 22nd judgment was agreed to by her counsel without her approval or consent. In response thereto, John filed an exception of unauthorized use of summary proceeding to collaterally attack the March 22nd judgment.

All of these various rules and motions were heard by the trial court on September 9th and 10th 1982 at which time the rules for increase and decrease of child support were both denied, as well as the motion to terminate child support. The rule for past due child support was made executory, and judgment was rendered against Melanie in the amount of $1,200.00, plus $350.00 attorney fees and all costs. She perfects this appeal raising the following issues:

1. The validity of the March 22nd consent judgment.
2. whether the original rule for child support filed by John was properly served upon her to satisfy due process.
3. whether she carried her burden of showing a change in circumstances to warrant a decrease in child support.
4. whether the amount awarded John for back support is mathematically correct.
5. whether the trial court abused its discretion in its determination of the amount of child support awarded John.

1.The March 22nd Consent Judgment.

Only certain matters are authorized by the Code of Civil Procedure for disposition by summary proceeding. The validity of a judgment is not one. La.C.G.P. Art. 2592.

The law is clear that a judgment may only be attacked in an ordinary proceeding. LA.C.C.P. Articles 2001-2006; Thibodeaux v. Duos, 343 So.2d 441 (La. App.3rd Cir.1977); Sizeler v. Sizeler, 375 So.2d 122 (La.App. 4th Cir.1979); Columbia Radio and Supply Co. v. Jordan, 215 So.2d 553 (La.App. 4th Cir.1968). Melanie is thus precluded from collaterally attacking the March 22nd judgment by the use of summary proceedings.

2. Proper Service

Melanie’s argument that she was not properly served with the rule for child support is without merit. Where personal jurisdiction over a party has been obtained, service on that party’s counsel of record is good and valid. La.C.C.P. Art. 1314. This holds true even when the party lives outside of Louisiana even for a lengthy period of time. Imperial v. Hardy, 302 So.2d 5 (La.1974); Chaplin v. Chaplin, 402 So.2d 795 (La.App. 4th Cir.1981); Goldstein v. Goldstein, 409 So.2d 1245 (La.App. 4th Cir.1982). Personal service is effected when the citation or other process is tendered to the person to be served by the process server, officer or deputy. La.C.C.P. Art. 1232. Service was tendered to Melanie’s counsel of record, Mr. Sehoemann. Thus, service was effected on her and due process was satisfied. Even assuming proper service had not been effected, Mr. Graymond Martin appeared on Melanie’s behalf and therefore any objection to lack of service was waived by appearance thru counsel. La.C.C.P. Art. 7; Bunge Corp. v. Emmons, 320 So.2d 230 (La.App. 3rd Cir.1975); LeBlanc v. Landry, 371 So.2d 1276 (La.App. 3rd Cir.1979).

3. Burden of Proof

The law requires that a party seeking any modification of a prior support judgment must show a change in circumstances justifying -the modification. The change in circumstances must take place during the period of time between the date of the judgment and the date of the rule for modification. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973); Gennaro v. Gennaro, 306 So.2d 756 (La.App. 4th Cir.1975); Howell v. Howell, 391 So.2d 1304 (La.App. 4th Cir.1980). In the instant case, Melanie argues she is entitled to the termination or decrease in her child support obligation because she is unemployed. The record clearly reflects that she was unemployed at the time the judgment was rendered, not because of any fortuitous event but through voluntary action on her part. Melanie does not contend that she became unemployable at the time of filing or trial of her rule to terminate or reduce. In fact, the record shows she was not physically disabled and was actively seeking employment which she subsequently secured with the Orleans Parish School Board. Therefore, her argument is without merit. There was no change in circumstances between rendition of the judgment and the trial of her rule to terminate or reduce. Neither was there any substantial change in John’s income that would warrant a termination or decrease in support.

4. Mathematical Certainty

Melanie contends that the amount of the judgment should have been $50.00 less because one period in question, June 1 to September 7, 1982 is only 14 weeks instead of 15 weeks. She asserts the correct amount of arrearage is $1,150.00. John asserts the correct amount is $1,184.99, based on 14 weeks and 4 days. Both agree that the $1,200.00 amount is incorrect. We hold that the correct amount due is $1,150.00. The amount owed for the 4 days of the 15th week is not due until the full week is passed. We will therefore correct the judgment to reflect the correct amount of $1,150.00.

5. Abuse of Discretion

A trial court’s award of alimony and child support is not to be disturbed in the absence of a clear showing of abuse of that discretion. Howell v. Howell, 391 So.2d 1304 (La.App. 4th Cir.1980); Nicolle v. Nicolle, 308 So.2d 377 (La.App. 4th Cir.1975). We find ample evidence in support of the trial court’s denial of Melanie’s request for termination in child support. She failed to prove any change in circumstances to warrant a modification or termination of the judgment. Her argument that the trial court erroneously apportioned the child support equally between her and John is without merit. John first estimated the cost of supporting the minor child to be $400.00 per month, but later amended that estimate to approximately $750.00. The record supports the conclusion that the cost of supporting the child is substantially greater than $400.00. Melanie was ordered to contribute $216.00 per month, less than one-half of the child’s needs. She also has failed to consider the non-monetary support provided by John. Louisiana has long recognized and credited the day-to-day care and nurturing given by the custodial parent as a significant portion of their support obligation. Ducote v. Ducote, 339 So.2d 835 (La.1976); Neel v. Neel, 365 So.2d 34 (La. App. 4th Cir.1978). In addition, the evidence convinces us that Melanie is employable. She has a B.A. Degree in secondary education, and is presently attending law school at night. Prior to her leaving the country in February of 1982, she voluntarily resigned her position with the Louisiana Department of Health and Human Resources where she was earning $1,145.00 per month, while John was earning approximately $900.00 per month.

The judgment of the trial court is amended to reflect the correct amount of back child support to be $1,150.00. In all other respects, the judgment is affirmed.

AMENDED, AND AS AMENDED AFFIRMED.


author: LOBRANO, Judge. REDMANN, Chief Judge,

text:
    Edwin A. O’NEAL, et al. v. BOARD OF REGENTS OF HIGHER EDUCATION, et al.
    No. CA-0385.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 13, 1983.

      William J. Guste, Jr., Atty. Gen., Winston G. DeCuir, Asst. Atty. Gen., Baton Rouge, for defendants/appellees.
    Dorothy F. Waldrup, New Orleans, for plaintiffs/appellants.
    Before REDMANN, C.J., and GULOTTA and LOBRANO, JJ.
   LOBRANO, Judge.

This is a suit by Edwin A. O’Neal, Kent A. Matulich and Darrel Griffin (appellants) against Delgado University, Board of Trustees for State Colleges and Universities and Dr. Harry J. Boyer (appellees) seeking recovery under the Teacher Tenure Act, (R.S. 17:471), and damages for changing their employment status from a 12 month employee to a 9 month employee. After trial on the merits, the lower court dismissed appellants’ claim. We affirm.

Prior to September 9, 1979 appellants were faculty members at Delgado Community College. On September 10, 1979 a faculty meeting was called by Dr. Boyer, acting president, at which time appellants were informed that as of September 9,1979 they were being employed on a 9 month basis instead of a 12 month basis. At the same time each was presented with a document entitled “FULL WAIVER AND SETTLEMENT OF ANNUAL LEAVE”. This document provided that appellants would waive their rights to accrue annual leave after September 9, 1979 in return for an increase in their monthly pay based on a 9 month term. The annual leave that had been accrued prior to September 9, 1979 was not lost but could be (1) used for retirement, (2) used in accordance with Board of Trustee Policy and (3) used as provided by State law upon separation or transfer. After careful consideration each signed the agreement indicating acceptance. By doing so, the trial court found that appellants waived their rights to claim accrued annual leave, as well as any other damages.

Appellants argue that they were forced or threatened into accepting the agreements. They allege their consent was lacking, thus vitiating the contract citing Civil Code Articles 1819, 1850 and 1851. The facts clearly show that each had the document in his possession for up to two weeks prior to signing same. Each appellant testified that they were urged to accept the agreement, but were never threatened with physical harm or forced in any way. Ken Matulich placed an asterisk by his name indicating he reserved his rights under the Teacher Tenure Act. O’Neal and Griffin placed an asterisk by their names indicating they had not sufficient time to secure legal counsel. All three appellants testified that they were under the impression that they would lose further benefits if they did not sign, a fact which the trial judge concluded was not proved.

Once an expressed consent is communicated it can only be attacked by showing that it was not freely given because a party was laboring under error, fraud, violence or threats. La.C.C. Art. 1819. The degree of fear, violence or threats necessary to void a contract is set forth in Article 1851 as follows:

“Article 1851. It is not every degree of violence or every kind of threats that will invalidate a contract; they must be such as would naturally operate on a person of ordinary firmnéss, and inspire a just fear of great injury to person, reputation or fortune. The age, sex, state of health, temper and disposition of the party, and other circumstances calculated to give greater or less effect to the violence or threats, must be taken into consideration.”

We agree with appellant’s argument that mere consent in writing will not automatically make an agreement valid. See, Tobin v. Louisiana Board of Education, 319 So.2d 823 (La.App. 1st Cir.1975). However, when a party’s consent is expressly given, the burden is upon him to prove a lack of consent sufficient to vitiate the contract similar to the situation where fraud is alleged to vitiate a contract. See, Hall v. Arkansas-Louisiana Gas Co., 368 So.2d 984 (La.1979); Long v. Foster and Associates, Inc., 129 So.2d 601 (La.App. 2nd Cir.1961); American Guaranty Co. v. Sunset Realty and Planting Co., Inc., 208 La. 772, 23 So.2d 409 (1945). This the appellants failed to do, and therefore they are not entitled to any accrued annual leave benefits from September 9, 1979.

Additionally, appellants argue that they are entitled to damages because they were reduced from a 12 month employment period to a 9 month employment period. As a result they claim loss of various benefits, including retirement benefits, in amounts of $91,308.00 for O’Neal, $67,500.00 for Matulich and $22,000.00 for Griffin. The trial judge concluded in his oral reasons for judgment that appellants did not prove by a preponderance of the evidence that they had a binding contract with Delgado for a 12 month period. In fact, the trial judge stated, “I would think that the school probably has every right to say we are going to make this a nine month school or a six month school or anything else.” We agree with trial court’s findings. Even assuming arguendo that the “WAIVER AND FULL SETTLEMENT OF ANNUAL LEAVE” were held to be invalid, the appellants still have not proven that Delgado did not have the right to reduce their employment term from 12 months to 9 months. Further, the testimony of Mrs. Evelyn Sis-trunk who is head of the benefit department of the Teacher’s Retirement System of Louisiana, and Robert E. West, Jr. comptroller of Delgado, convince this Court that appellants have failed to prove any loss in benefits as a result of the change in their status, except for the fact that they were working for 9 months instead of 12.

Finally, the trial court dismissed as premature appellants’ claim that their rights under the Teacher Tenure Act had been violated. The trial court held that the administrative procedures required by R.S. 49:950 had not been complied with. We do not decide this issue since appellants are not clear as to the exact relief they seek. This factor apparently caused concern throughout the trial because the trial judge repeatedly questioned appellants’ counsel as to just what it was they were seeking. We conclude that appellants’ claim is one for monetary damages and accrued annual leave from September 9, 1979. We hold that they compromised their accrued annual leave in return for an increase in pay, and that they failed to prove Delgado could not change their status to a 9 month employee, or that they sustained any damages because of said change.

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

AFFIRMED.

REDMANN, C.J., concurs.

REDMANN, Chief Judge,

concurring.

Plaintiffs’ petition’s complaint is that, although previously they enjoyed 12-month contracts as teachers, they have now been tendered only nine-month contracts annually-

Disregarding the “waivers” as inadmissa-ble to deprive plaintiffs of any rights secured to them by the law, I nevertheless conclude that defendants have the authority to fix teaching terms at nine rather than 12 months, to reduce salaries, to limit “leave” to that of tenured teachers (none of whom can get paid leave during vacation time, any more than an ordinary employee can get paid leave on weekends), etc., and that none of these actions amounts to a demotion prohibited by the teacher tenure law. See Mouras v. Jefferson Parish Sch. Bd., 300 So.2d 540 (La.App. 4 Cir.1974), writ refused 302 So.2d 619 (La.1974).

Nor was there any showing, as charged, that 1970 salaries, protected by La.Acts 1970 No. 446 § 5 against reduction by the transfer from city to state control, were reduced by that transfer (or even that the 1979 reduction in 1979 salaries was a reduction “by the transfer”).

I therefore concur in affirming the dismissal of plaintiffs’ claims.


text:
    CONTINENTAL INSURANCE COMPANY v. FAIRFIELD TEMPORARIES, INC., Formerly Olsten’s of New Orleans, Inc.
    No. CA-0641.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 13, 1983.

      Alonzo T. Stanga, III, and William R. Mustian, III, Metairie, for defendant/appel-lee.
    Clarence F. Favret, Jr., New Orleans, for plaintiff/appellant.
    Before REDMANN, GULOTTA and L0-BRANO, JJ.
   LOBRANO, Judge.

The sole issue in this appeal is whether the three year prescriptive period provided in La.C.C. Article 3538 or the ten year period for breach of contract is applicable. Plaintiff-appellant, Continental Insurance Company, filed suit against defendant-ap-pellee, Fairfield Temporaries, Inc., for $19,-165.00 allegedly due on account for insurance premiums. The trial court upheld the three year prescriptive period and dismissed appellant’s suit. This appeal followed.

Appellant contends that the trial court erred in concluding that this was a suit on open account. Rather, they argue their claim is one sounding in contract and is therefore governed by the ten year prescriptive period of L.C.C. Art. 3544.

On March 1, 1976 appellant issued two policies of insurance for the account of ap-pellee. One was a general liability policy and the other was a workmen’s compensation policy. They were originally issued for a 3 year term running March 1, 1976 through March 1, 1979, but both policies were terminated on March 1, 1977 for nonpayment of premiums. Suit was filed on August 23, 1982 more than three years after cancellation of the policies.

Louisiana jurisprudence considers an insurance policy as a contract between the insurer and insured. American Hardware Mutual Ins. Co. v. Stine, 341 So.2d 1301 (La.App. 3rd Cir.1977), and the cases cited therein. Furthermore, in an action by the insurer, or his subrogated agent, against the insured for premiums due, the weight of authority is that the ten year prescriptive period is applicable. American Hardware, supra; Commercial Insurance Agency, Inc. v. Wilson, 293 So.2d 246 (La.App. 3rd Cir.1974); Calvert v. Harper, 205 So.2d 193 (La.App. 2nd Cir.1968); Great American Indemnity Co. v. Laird, 73 So.2d 6 (La. App. 2nd Cir.1954); McElroy v. Parry, 152 So. 793 (La.App. 2nd Cir.1934).

Appellee counters with LeBoeuf v. Riera, 176 So.2d 216 (La.App. 4th Cir.1965), and argues that LeBoeuf held the three year period applicable. We disagree with that interpretation. The issue in LeBoeuf was whether two payments interrupted the three year prescriptive period. It was never argued, nor discussed by the Court whether the three or ten year period was applicable. Furthermore the subsequent 4th Circuit case of Cusimano, Inc. v. Cusimano, 216 So.2d 344 (La.App. 4th Cir.1968) recognized the ten year prescriptive holding of McElroy and Great Indemnity, supra, by stating:

“The cases cited by plaintiff stand for the proposition that where an insurance agent is liable to the insurer for the payment of premiums on policies issued by him as agent for the insurer and pays such premiums to the insurer, the agent becomes subrogated under the provisions of L.S.A.-C.C. Art. 2161(3), to all the rights of the insurer against the insured with respect thereto. The cases further hold that since the rights of the insurer to collect premiums from the insured are governed by the prescription of ten years it follows that the prescription of ten years instead of three years is applicable to an action by the subrogated agent against the insured for reimbursement of the amount paid for his account.” Cusi-mano, Inc. supra at 345.

Appellee further argues that both policies were retrospective, and since the total premium due on such policies is determined by periodic audits we should characterize the amount due as an open account. We disagree. The determinative factor in choosing which prescriptive period applies is the underlying nature of the debt owed. The fact that a periodic accounting is rendered indicating when the debt is due does not change the character of the obligation. Commercial Ins. Agency, Inc. v. Wilson, supra. In a case involving a suit for amounts due under a gas sales contract, our Supreme Court held that the character of the obligation is not changed because of the fact that the amount due is to be determined by the occurrence of certain stipulated conditions. The obligation existed because of the contract, and thus the prescriptive period of ten years was applicable. United Carbon Company v. Mississippi River Fuel Corp., 230 La. 709, 89 So.2d 209 (1956).

We are convinced that the three year prescriptive period of Article 3538 for open accounts is not applicable to the instant case. The action of appellant is one for premiums due on two specific insurance contracts. The fact that the policies provide for a specific method of determining the amounts due thereunder do not change the nature of the obligation to an open account status as contemplated by Art. 3538. “This prescription [open account] has always referred to ‘accounts for goods sold, and merchants accounts against their customers and generally to those business or other relations in which accounts are usually rendered,’ ... a classification into which the plaintiff here obviously does not fall.” United Carbon Company, id. at 212. Accordingly we reverse the ruling of the trial court, and remand for further proceedings.

REVERSED AND REMANDED.


text:
    David RODRIGUEZ v. DEPARTMENT OF SANITATION.
    No. CA-0659.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 13, 1983.
    Salvador Anzelmo, Douglas P. Wilson, Chief Deputy City Atty., Bernette J. Johnson, Asst. City Atty., New Orleans, for defendant/ appellee.
    Alan F. Schoenberger, Kirchberg & Scho-enberger, New Orleans, for plaintiff/appellant.
    Before REDMANN, GULOTTA and LO-BRANO, JJ.
   LOBRANO, Judge.

The sole issue of this appeal is whether or not the Civil Service Commission of the City of New Orleans (Commission) can dismiss the appeal of an employee when that employee fails to attend the hearing after being properly notified.

Appellant was terminated as an employee of the Department of Sanitation, with forfeiture of his accrued annual and sick leave for the following alleged reasons:

1) Violating the city’s residency requirements;
2) Stealing fuel from the city vehicle entrusted to his care;
3) receiving wages for hours not worked;
4) collusion and the attempted intimidation of witnesses;

After notifying the Commission that he intended to appeal his termination and forfeiture of leave, appellant’s case was set for hearing on three occasions. On the first occasion, June 3, 1982 the matter was continued on motion of the City. On the other two, September 9th and August 3rd appellant failed to appear, and on the latter date the City’s motion to dismiss for failure to prosecute was granted.

Appellant argues that the Civil Service Commission is without authority to dismiss an appeal when no evidence has been presented by the appointing authority, solely on the basis that a petitioner has failed to prosecute the appeal. We agree. It is well settled that on appeal to the Civil Service Commission the burden of proof is upon the appointing authority to prove by á preponderance of the evidence the misconduct of the employee. LSA Const. Art. 10 See. 8; Newman v. Dept of Fire, 425 So.2d 753 (La.1983); Viator v. City of New Iberia, 428 So.2d 1329 (La.App. 3rd Cir.1983); Thornton v. D.H.H.R., 394 So.2d 1269 (La. App. 1st Cir.1981). The rules and regulations of the Commission do not provide for dismissal for lack of appearance by the aggrieved employee, nor is there any provision for failure to prosecute an appeal.

Appellee (City of New Orleans) could have proceeded, despite appellant’s absence, to-produce evidence to substantiate the actions taken against appellant and the Commission could then have affirmed those actions. But we hold that, at the very least, a prima facie case should be made to satisfy due process requirements.

We therefore reverse and remand this matter back to the Commission for further proceedings consistent with this opinion.

REVERSED AND REMANDED.


author: REMY CHIASSON, Judge Pro Tem.

text:
    SUCCESSION OF Emile A. FLACH.
    No. CA 0609.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 13, 1983.

      John A.E. Davidson, Metairie, for plaintiff-appellant.
    Campbell & Campbell, William M. Campbell, Metairie, for defendant-appellee.
    Before BARRY and WARD, JJ., and CHIASSON, J., pro tem.
   REMY CHIASSON, Judge Pro Tem.

This is an appeal from the district court’s denial of an executor’s claim as a succession creditor.

Emile A. Flach died on December 13, 1980, naming in his will Emile F. Fuhrmann as his executor. Mr. Flach’s succession was opened on April 3, 1981 and was administered by Fuhrmann, who during the course of the administration paid certain debts and charges of the succession.

On November 12, 1981, Mr. Fuhrmann and his wife filed a petition for notice of filing of tableau of distribution, alleging that they were creditors of the succession. Said tableau of distribution was filed by the attorney for the succession on March 23, 1982, and following the recapitulation contained the following statement:

“IV. This succession has been advised of various unliquidated claims by Mr. and Mrs. Emile F. Fuhrmann, the total, estimated in the sum of $10,000.00, which may be presented by way of an opposition to this account; accordingly, the net amount available for distribution to the heirs and the inheritance tax computation cannot be determined with accuracy until a final decision is made by the court.”

Mr. and Mrs. Fuhrmann subsequently filed their opposition to the tableau of distribution on March 31,1982 claiming a total sum of $10,129.37, which they claimed could be broken down as follows:

“1. Loans of money, beginning 6/11/80 through 12/9/80 as indicated on the attached schedule 1, said sums totaling $9,100.00; that said sums are evidenced by checks payable to the order of Emile Flach and deposited to his account and further said sum is also comprised of $75.00 in checks made payable to ‘cash’ and inscribed with the memo to Flash, (sic) loan which were used for petty cash and also indicated by the attached schedule 2; and further as indicated on schedule 3 the sum of $234.38 for rental of hospital bed and pads from Abbel Rents and Sells. And miscellaneous cash expenditures relating to the purchase of medicine and other expenses of last illness, totaling $95.10 as indicated on schedule 4 and finally schedule 5 which is the costs of an appraisal on the Flach residence in order that a proper sale price can be arrived for the property located at 2534 Sage Street."

The matter came to trial on the opposition on November 15, 1982, at which time the trial judge denied the Fuhrmanns’ claims, with the exception, as stipulated by counsel, of the costs of appraisal of the Flach residence ($50.00) and certain funeral related expenses ($574.89). The judgment in effect denied the Fuhrmanns’ claim of $9500.00 against the estate which they alleged they had loaned the decedent for the expenses of his last illness.

Mr. and Mrs. Fuhrmann appeal that portion of their claim which was denied and contend, primarily, that the trial court erred in disallowing the testimony of Emile Fuhrmann to establish the .indebtedness claimed. We find no such error, and affirm the trial court judgment for the following reasons.

The controlling law in this case is La.R.S. 13:3721, which provides:

Parol evidence shall not be received to prove any debt or liability of a deceased person against his succession representative, heirs, or legatees when no suit to enforce it has been brought against the deceased prior to his death, unless within one year of the death of the deceased:
(1) A suit to enforce the debt or liability is brought against the succession representative, heirs, or legatees of the deceased;
(2) The debt or liability is acknowledged by the succession representative as provided in Article 3242 of the Code of Civil Procedure, or by his placing it on a tableau of distribution, or petitioning for authority to pay it;
(3) The claimant has opposed a petition for authority to pay debts, or a tableau of distribution, filed by the succession representative, on the ground that it did not include the debt or liability in question; or
(4) The claimant has submitted to the succession representative a formal proof of his claim against the succession, as provided in Article 3245 of the Code of Civil Procedure.
The provision of this section cannot be waived impliedly through the failure of a litigant to object to the admission of evidence which is inadmissible thereunder.

The record clearly shows that the Fuhrmanns neither brought suit against the estate to enforce the alleged debt nor filed an opposition to the tableau of distribution within the one-year period set forth in the statute. Further, the debt was not acknowledged by the succession representative (here, presumably the attorney for the succession, since Mr. Fuhrmann as executor can hardly acknowledge his own claim), as required by La.C.C.P. Art. 3242. Nor does the record contain any evidence that the claimant submitted to the succession representative any formal proof of his claim.

Because plaintiff failed to comply with any of the requirements of R.S. 13:3721, the trial court correctly ruled that parol evidence was inadmissible to prove the Fuhrm-anns’ claims. Therefore, Mr. Fuhrmann’s testimony was properly .excluded.

Moreover, even if we were to find that the trial judge erred in disallowing parol evidence, R.S. 13:3722 states that when pa-rol evidence is admissible under § 3721, the debt of the decedent “must be proved by the testimony of at least one creditable witness other than the claimant, and other corroborating circumstances.” Both the statute itself and the jurisprudence which interpret it clearly state that the “creditable witness” whose testimony is used to prove the existence of the debt must be someone other than the claimant, so as to eliminate the possibility of fraud or perjury by witnesses who have a direct pecuniary or proprietary interest in the claim. Savoie v. Estate of Rogers, 410 So.2d 683 (La.1981).

In the instant case, the only testimony offered was that of Emile Fuhrmann, the claimant himself. The only corroborating evidence was the series of checks tendered by plaintiff, which show only that claimant wrote a number of checks to Emile Flach and which had the notation “loan” on the bottom. This is insufficient to prove the indebtedness of the decedent to Fuhrm-ann. The First Circuit dealt with a similar situation in Succession of Otts, 400 So.2d 1175 (La.App. 1st Cir.1981). In that case the decedent’s sister filed a claim against the succession more than one year after the decedent’s death. At trial she attempted to introduce both her oral testimony as to her claims against the succession and documentary evidence showing that she wrote checks for $3000.00 and $60.00, ostensibly used by the decedent to purchase a car and as a deposit for an oxygen tank used during his last illness. After holding plaintiff’s oral testimony inadmissible, the appellate court addressed the issue of documentary evidence:

“We must still determine, however, whether the documentary evidence submitted in the record substantiates the claims made by Mrs. Campbell. We find that it does not. The documentary evidence shows only that she wrote a $3,000.00 check to her brother which ostensibly was used in the purchase of a car. Whether this was a loan, a gift, or other disposition is simply unknown. No written promise to pay or other acknowl-edgement of the debt by the deceased was introduced into the record, presumably because such evidence was not available. See Succession of Dean, 375 So.2d 162 (La.App. 2nd Cir.1979), writ refused 376 So.2d 1272 (La.1979).” 400 So.2d at 1178. (Emphasis added).

In the instant case, there is no evidence of a written promise to pay or other ac-knowledgement of the debt by the deceased. Despite the notation “loan” on some of the checks in question, we do not believe the documentary evidence by itself is sufficient to prove the existence of a valid claim.

We find the trial court was correct in its application of the law to the facts of the case. Accordingly, we affirm.

AFFIRMED.

      . Article 3242 provides that the succession representative must in writing either acknowledge or reject a claim submitted against the succession within 30 days of its submission, and that failure to either acknowledge or reject a claim within that time operates as a rejection of the claim.

      . La.C.C.P. Art. 3245 sets forth the proper way in which formal proof is to be submitted:
      “A creditor may suspend the running of prescription against his claim by delivering personally or by certified or registered mail to the succession representative a formal written proof of the claim, sworn to by the claimant, setting forth:
      (1) The name and address of the creditor;
      (2) The amount of the claim, and a short statement of facts on which it is based; and (3)If the claim is secured, a description of the security and of any property affected thereby.
      If the claim is based on a written instrument, a copy thereof with all endorsements must be attached to the proof of the claim. The original instrument must be exhibited to the succession representative on demand, unless it is lost or destroyed, in which case its loss or destruction must be stated in the claim. The submission of this formal proof of claim, even though it be rejected subsequently by the succession representative, shall suspend the running of prescription against the claim as long as the succession is under administration.”


text:
    DEWITT CORPORATION v. Richard RAYDER.
    No. 53844.
    Supreme Court of Mississippi.
    Aug. 10, 1983.
    Rehearing Denied Oct. 5, 1983.
    Fraiser, Burgoon & Abraham, James W. Burgoon, Jr., Greenwood, for appellant.
    Jon M. Barnwell, Greenwood, for appel-lee.
   Appeal from Circuit Court, Leflore County; Webb Franklin, Judge.

Before PATTERSON, C.J., HAWKINS and ROBERTSON, JJ., and SUGG, Retired Justice.

REVERSED AND REMANDED FOR A NEW TRIAL UNDER REFORMED PLEADINGS.

WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, DAN M. LEE and PRATHER, JJ., concur.


text:
    Thellie B. WAGGONER, et ux. v. John E. OTT, Sr. and John E. Ott.
    No. 54072.
    Supreme Court of Mississippi.
    Aug. 10, 1983.
    Rehearing Denied Oct. 5, 1983.
    Gillis & Gillis, Norman B. Gillis, III, McComb, for appellants.
    William Ben Regan, Magnolia, for appel-lees.
   Appeal from Circuit Court, Pike County; Joe N. Pigott, Judge.

Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.

AFFIRMED.


text:
    R.D. RIPPETOE, a/k/a Bob Rippetoe v. STATE of Mississippi.
    No. 53870.
    Supreme Court of Mississippi.
    Aug. 17, 1983.
    Rehearing Denied Oct. 5, 1983.
    Norman Breland, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hancock County; Kosta Vlahos, Judge.

Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.

AFFIRMED.


author: PATTERSON, Chief Justice,

text:
    Cora Lee CHAFFIN v. John R. CHAFFIN, Jr.
    No. 53837.
    Supreme Court of Mississippi.
    Aug. 17, 1983.
    Rehearing Denied Oct. 5, 1983.

      Harry L. Kelley, Jackson, for appellant.
    Johnston, Adams & Younger, Michael P. Younger, Brandon, for appellee.
   PATTERSON, Chief Justice,

for the Court:

John R. Chaffin, Jr., filed suit in the Chancery Court of Rankin County, seeking a divorce on the ground of habitual cruel and inhuman treatment. His wife Cora Lee Chaffin denied the cruelty in her answer and filed a cross-complaint for separate maintenance. The court granted Mr. Chaffin a divorce and awarded Mrs. Chaffin $250.00 per month child support, the custody of their younger son, and the use of the family home until the younger son should reach majority or become self-supporting or until Mrs. Chaffin should remarry or abandon the property for a period of time longer than one month.

Mrs. Chaffin appeals and assigns the following as error:

I. Did the trial court err in granting a decree in vacation without having previously taken the case under advisement for a ruling in vacation?

At the conclusion of the trial, which was near the end of the regular December 1981 term, appellant requested additional time to present argument to the court. The court granted the request but instructed appellant to prepare an order so that the case could be taken under advisement, as required by Mississippi Code Annotated, § 93-5-17 (1972), for decree in vacation. Either through oversight or inadvertence appellant did not follow this instruction and the order was never entered. She now argues the nunc pro tunc decree entered in vacation did not cure the defect and is, by virtue of the absence of the order, null and void.

The court addressed this issue in Callicott v. Horn, 137 Miss. 693, 102 So. 850 (1925), “Power to sign decrees and try causes in vacation on the part of judges and chancellors must be derived from the statute, or by consent of the parties, and a decree entered in vacation not in conformity therewith or not so authorized is void.” While this case reversed the chancellor’s decree because there was no order on the minutes, the court implied that the decree would have been upheld had the record disclosed consent of the parties to take the decree in vacation. The record in the present case expressly reflects such an agreement. The chancellor directed appellant to put on an order; and while appellee initially requested a decree during term time, he did not object to the chancellor’s instruction.

We are of the opinion the understanding to take the decree in vacation had the effect of retaining jurisdiction in the court until the decree nunc pro tunc was entered. Since the necessity for the decree nunc pro tunc was prompted by appellant’s oversight, we think that stated in Green v. Myrick, 177 Miss. 778, 171 So. 774 (1937), is apropos, “[C]ourts may by nunc pro tunc orders supply omissions in the record of what had previously been done, and by mistake or neglect not entered.”

We distinguish Lanham v. Lanham, 194 Miss. 872, 14 So.2d 215 (1943), on the point that the decree in that case was entered in vacation over appellant’s objection. In the case at bar appellant not only failed to object, but her request for time helped create the necessity of the entry of the decree in vacation.

II. Did the trial court err in finding that the evidence supported appellee’s ground for divorce?

This Court will not reverse a chancellor’s decree of divorce unless it is manifestly wrong as to law or fact. Humber v. Humber, 109 Miss. 216, 68 So. 161 (1915); Dubois v. Dubois, 275 So.2d 100 (Miss.1973). Appellee presented evidence, corroborated by others, that appellant’s continual nagging and absence from their home caused him physical and psychological distress and finally forced him to leave the house. This was a much stronger case for divorce than was required by this Court in Wires v. Wires, 297 So.2d 900 (Miss.1974). Additionally, appellee testified that appellant threatened to kill him and this prompted him to remove all the guns from the house. On similar facts this Court in Sandifer v. Sandifer, 215 Miss. 414, 61 So.2d 144 (1952), upheld the decree, finding the conduct satisfied the pronouncements in Russell v. Russell, 157 Miss. 425, 128 So. 270 (1930). We take complainant’s testimony at its best, as suggested in Burnett v. Burnett, 271 So.2d 90 (Miss.1972), and find that it does establish the grounds set out in the complaint.

III. Did appellee condone the alleged habitual cruel and inhuman treatment?

Habitual cruel and inhuman treatment is an offense of a continuing nature and is not condoned by the mere continuance of cohabitation. Manning v. Manning, 160 Miss. 318, 133 So. 673 (1931). But con-donation of cruelty has been found where the parties separated and then resumed their marital relationship. Thames v. Thames, 233 Miss. 24, 29, 100 So.2d 868, 870 (1958); Stribling v. Stribling, 215 So.2d 869, 870 (Miss.1968).

The record shows the parties separated in December, 1980, but resumed cohabitation in late July, 1981. According to Thames and Stribling, appellee condoned all pre-resumption offenses. The parties again separated, however, after Mr. Chaffin learned that his wife had again committed one of the acts of cruelty charged to her: that she had left the marital residence and spent a good deal of time with another man. We are of the opinion that this post-condonation offense revived the previous offenses for consideration by the court. Smith v. Smith, 205 Miss. 794, 40 So.2d 156, 157 (1949). Therefore, the chancellor did not err in finding that appellee had not condoned the habitual cruel and inhuman treatment.

IV.Did the chancellor make inadequate financial provisions for the appellant?

Appellant first contends that the divorce should be set aside and that she should be awarded separate maintenance. It is, of course, improper to award separate maintenance to a wife whose conduct was a material factor in the separation at least equal to that of the husband. Rodgers v. Rodgers, 349 So.2d 540 (Miss.1977); Cox v. Cox, 279 So.2d 612 (Miss.1973). The trial court found from the evidence that appellant’s conduct was the sole cause of the separation and thus this contention is without merit. In the alternative, appellant prays for alimony. While the general rule is that alimony will not be awarded to a wife where the divorce is granted to the husband, the trial court is not precluded from awarding alimony to a wife who is at fault. Yelverton v. Yelverton, 200 Miss. 569, 28 So.2d 176 (1946). However, such an award was reversed where the wife was able to earn her own living, had not contributed to the accumulation of her husband’s property, and where the husband was not partially at fault. Russell v. Russell, 241 So.2d 366 (Miss.1970).

We think appellant’s situation is analogous to that of the wife in Russell on all of these points. Therefore, we opine the chancellor did not err in refusing alimony.

Our cases which have reversed denials of alimony where the wife was at fault may be distinguished. Appellee earns a salary of $800 per month and is not a substantial landowner as was the husband in Bond v. Bond, 355 So.2d 672 (Miss.1978). In Gatlin v. Gatlin, 248 Miss. 868, 161 So.2d 782 (1964), the wife was seriously ill; here the appellant is not.

Appellant also contends the award of $250 per month for the support of the parties’ younger son is inadequate. Based on the criteria set out in Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147 (1955), we find this contention without merit. Appel-lee pays approximately $350 per month for apartment rent and utilities. He also must support the parties’ older son who lives with him. Appellant has the use of the marital residence until the younger son reaches majority or becomes self-supporting. We find that in light of these facts, the award of $250 per month, almost one-third of appel-lee’s salary, is adequate. We therefore affirm.

AFFIRMED.

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


author: DAN M. LEE, Justice,

text:
    Lawrence & Betty LITTEN v. GRENADA COUNTY, MS.
    No. 54410.
    Supreme Court of Mississippi.
    Aug. 17, 1983.
    Rehearing Denied Oct. 5, 1983.
    Stewart Guernsey, Cambridge, Mass., Carl E. Guernsey, Jackson, for appellants.
    Gore, Gore & Purdie, Jay Gore, Jr., Car-others, Fedric & Laster, W.H. Fedric, Grenada, for appellee.
    Before WALKER, P.J., and DAN M. LEE and ROBERTSON, JJ.
   DAN M. LEE, Justice,

for the Court:

This action was commenced on December 21, 1981, when Grenada County filed a bill to confirm title to three parcels of land. Public notification to unknown claimants was accomplished by publication the same day. The only persons to respond were the appellants, the Littens, who filed an answer and cross-bill on February 12, 1982, claiming fee simple ownership of a portion of one of the parcels involved. On March 10,1982, the County made a motion for summary judgment alleging that the Littens were not abutting landowners in the position to' question the use of property the County intended to use for right of way easements. The chancellor took the matter under advisement until April 2,1982, when he issued a decree sustaining the motion “in conformity with Rule 56(e) of the Mississippi Rules of Civil Procedure.”

The Littens then petitioned the chancery court for an emergency injunction to prevent continued activity on the part of Grenada County in digging trenches and laying water pipes. From a reading of the record it is unclear exactly what transpired except that the chancellor entered an order dismissing the petition. Subsequently the attorneys for the County filed a motion for the allowance of attorneys’ fees alleging that prior to the hearing on the injunction the Littens’ attorney notified them of such hearing. The motion further alleges that at the time of the hearing the County’s attorneys were present and that co-counsel for the Littens’ attorney appeared and requested a continuance. The chancellor granted the motion and awarded $400 in attorneys’ fees.

The first issue is whether the chancellor erred in granting a summary judgment. The record is clear that the chancellor intended to act in conformity with Rule 56(e) of the Mississippi Rules of Civil Procedure. However, it must be remembered that this action was filed before the rules became effective. Because the rules apply only to those actions “filed on or after January 1, 1982,” the chancellor was in error in attempting to apply them in this action. There being no summary judgment available, the chancellor’s order must be reversed.

As to the matter of attorneys’ fees we must say the chancellor was in error. In the absence of statutory authority attorneys’ fees are available only in special circumstances. Aetna Casualty and Surety Company v. Steele, 373 So.2d 797 (Miss.1979). Because the record is void of any showing of special circumstances we conclude that the award of attorneys' fees was also error.

We therefore reverse the granting of summary judgment and the award of attorneys’ fees.

REVERSED AND REMANDED.

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