author: JASPER E. JONES, Judge.

text:
    STATE of Louisiana, Appellee, v. Donald Ray MORRIS, Appellant.
    No. 16415-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    Rehearing Denied Oct. 26, 1984.

      Evans, Feist, Auer & Keene by Frank M. Auer, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Richard Carney .and Catherine Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

The defendant, Donald Ray Morris, was charged by bill of information with simple burglary (LSA-R.S. 14:62) of the Shreveport Refrigeration store located at 7600 Youree Drive in Shreveport. He was found guilty as charged by a six member jury. The trial judge sentenced defendant as a second felony offender under LSA-R.S. 15:529.1 to eighteen years at hard labor. Defendant appeals his conviction and sentence relying on seven assignments of error. We affirm.

FACTS

At approximately 3:00 a.m. on March 30, 1983 Officer Johnny Lanear of the Shreveport Police Department, while responding to a call over the police radio stating that a silent alarm had been tripped at the Shreveport Refrigeration store on Youree Drive, saw an automobile matching the description of a car that had been observed leaving the scene of a burglary that occurred earlier the same morning. The car was headed west on Bert Kouns; a short distance from Shreveport Refrigeration. Lanear attempted to stop the car and investigate.

When Lanear turned on his flashing lights the car, a light green Plymouth, accelerated to a high rate of speed. Lanear pursued the Plymouth. The chase continued westerly down Bert Kouns until the driver of the Plymouth lost control of his vehicle and ran off the road into a wooded area near the New Castle Road. By the time Lanear arrived at the spot where the Plymouth came to rest, its driver had disappeared into the woods.

When Lanear began pursuing the Plymouth, he called on his radio for assistance. After the Plymouth ran off the road he relayed the location to the backup units and they surrounded the area. One of the backup officers, Tom Shumake, observed defendant running through the woods. He gave chase and arrested defendant. Shu-make noted that defendant was wearing a black leather looking coat and dark pants. Defendant was subsequently taken to the Shreveport City Jail in a paddy wagon and the Plymouth was towed to the police impound lot.

Bob Peden, an employee of Shreveport Refrigeration, was notified that the alarm had been tripped shortly after it occurred and he went immediately to the store. When he arrived he noticed that a window had been broken out and three television sets were missing from a display case. He notified officers on the scene that a video camera mounted inside the store was filming the area where the window was broken and the display case was set up. Peden played the tape for the officers. The tape showed a person matching defendant’s general description wearing a dark leather looking coat, a light colored shirt and dark pants enter the store three times through the broken window. Each time, the person carried a television set out through the window.

Later the same morning defendant was questioned by. Detective Gary Lindsay. Defendant denied any involvement in the burglary and stated he did not know anything about the car. Lindsay obtained a search warrant for the Plymouth and executed it with the aid of Officer L.L. Jackson. During the search the officers found two television sets on the back seat and another in the trunk. Serial numbers on the televisions matched those supplied by Shreveport Refrigeration. Jackson dusted the televisions for fingerprints and lifted a partial print matching defendant’s from the bottom of one of the sets. When Lindsay confronted defendant with the information obtained in the search, defendant admitted the car was his and confessed to the burglary. The confession was not recorded.

ASSIGNMENTS NO. 1 AND 3

By these assignments defendant contends the trial court erred in admitting the video tape made at Shreveport Refrigeration and the clothes he was allegedly wearing at the time of his arrest into evidence. Defendant argues the state failed to lay a proper foundation in that no continuous chain of custody was shown.

In order to introduce demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is the one connected with the case; lack of positive identification or a defect in the chain of custody goes to the weight of evidence rather than to its admissibility. State v. Taylor, 422 So.2d 109 (La.1982); State v. Sam, 412 So.2d 1082 (La.1982); State v. Downing, 451 So.2d 1221 (La.App. 2d Cir.1984).

Peden testified he handed the video tape of the burglary to a police officer at the store. Officer Jim Derrick testified he received the tape from a Shreveport Refrigeration employee, placed his initials and the date on it and took the tape to the Identification Division at the Shreveport Police Department. Officer L.L. Jackson testified that he obtained the tape from a locker in the Identification Division and brought it to court for the trial. Derrick positively identified the tape introduced at trial, from his initials and the date written upon it, as the one given him by the Shreveport Refrigeration employee on the morning of the burglary.

Defendant complains the chain of custody was not established because Peden and Derrick did not identify each other and because there was some indication that other officers in the Identification Division viewed the tape after Derrick brought it in. These matters go to the weight to be given the tape and not to its admissibility. There was sufficient evidence for the jury to conclude that more probably than not, the tape introduced at trial was the one made at Shreveport Refrigeration.

Officer Daniel Meriam, the driver of the paddy wagon which transported the defendant to the jail, testified that after he booked defendant and turned him over to a jailer, he requested the jailer to secure for him the defendant’s clothes. The jailer took defendant to a dressing area and required him to put on a jail uniform. The jailer took the defendant’s street clothes and delivered them to Meriam in a paper bag. Meriam took the bag to the Identification Division without looking inside the bag and turned it over to Officer Derrick. Officer Jackson testified that he picked the bag of clothes up from the Northwest Crime Lab and brought it to trial. At trial Meriam positively identified the coat as the one defendant was wearing the night of his arrest. Shumake, the arresting officer, said it appeared to be the same coat. Officer McKellar, who viewed the video tape, testified the coat removed from the bag was similar to the one worn by the man in the tape. We therefore have Officers Meriam, Shumake and McKellar who substantially identified the coat taken from the bag as the one worn by the defendant on the night of the crime. There is a defect in the chain of custody on the bag from the time it left the Shreveport Identification Division until it was picked up by Officer Jackson at the Northwest Crime Lab. There is substantial evidence that the coat removed from the bag was the one worn by the man who burglarized Shreveport Refrigeration. The weakness in the chain of custody goes to the weight of the evidence rather than its admissibility. We find this assignment of error without merit.

ASSIGNMENT NO. 2

By this assignment defendant contends the trial court erred in allowing the state to show the video tape made at Shreveport Refrigeration to the jury twice. The record reveals the tape was first shown at regular speed and then frame by frame. Defendant argues the second showing was merely cumulative and had no probative value.

Photographs which illustrate any fact, shed any light upon any factor at issue in the ease, or reliably describe the person, place or thing depicted are admissible, provided their probative value outweighs any prejudicial effect. State v. Lindsey, 404 So.2d 466 (La.1981). The same rule applies to the admissibility of video tapes. State v. Burdgess, 434 So.2d 1062 (La.1983); State v. Garrison, 400 So.2d 874 (La.1981). In weighing the relative probative value of proffered evidence against its probable prejudicial effect, whether the evidence is merely cumulative is a factor to be considered. State v. Manieri, 378 So.2d 931 (La.1979); State v. Redwine, 337 So.2d 1041 (La.1976).

The video tape in question had probative value on two issues in this case: (1) whether a burglary was in fact committed; and (2) the identity of the perpetrator. The record reveals that the tape, when ran on regular speed, does not clearly reveal the identity of the person pictured. By reducing the speed and showing the tape frame by frame, the prosecution was attempting to enhance its identification value. We conclude that the second showing of the tape at the reduced speed was not merely cumulative.

There can be no doubt that the second showing was prejudicial to defendant; however, its probative value on the issue of identity outweighed its prejudicial effect.

This assignment of error lacks merit.

ASSIGNMENT NO. 4

By this assignment defendant contends there was insufficient evidence to support his conviction. He argues the state failed to prove: (1) his entry into Shreveport Refrigeration was unauthorized; (2) ownership of the televisions; and (3) that he was the one who committed the offense.

The standard of appellate review of the sufficiency of the evidence is to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Edwards, 420 So.2d 663 (La.1982).

In support of his contention that the state failed to prove unauthorized entry defendant points out that only two employees from Shreveport Refrigeration were called to the stand. Both men testified they did not know defendant and that he had never been authorized to enter the store after business hours. Defendant argues that another employee or the store owner could have given him permission to enter.

We find that the testimony of the two employees was sufficient to establish this element of the offense. It would have been an undue burden on the state to require it to call every person that had any connection with the store to the stand. In making this determination we note that entry into the store occurred at about 3:00 a.m. during non-business hours and was accomplished by breaking out a window. A contention that the entry at that hour and in that manner was authorized is totally without merit.

Defendant argues the state failed to prove the televisions did not belong to him because the two Shreveport Refrigeration employees called to the stand were not asked who owned them. We find this contention to be without merit because there is sufficient circumstantial evidence in the record to establish the ownership element of the offense.

In order to meet the Jackson v. Virginia test for sufficiency of evidence, circumstantial evidence must exclude every reasonable hypothesis of innocence. LSA-R.S. 15:438; State v. Willis, 446 So.2d 795 (La.App. 2d Cir.1984); State v. Chism, 436 So.2d 464 (La.1983).

The evidence shows that the televisions were placed for sale in a display case inside Shreveport Refrigeration. Entry into the store was made through a broken window. The two employees were able to tell which televisions were missing by looking at the display case. A list containing the serial numbers of the merchandise on hand was maintained in the store and the serial numbers from the missing sets were supplied to the police from this list. The serial numbers on the sets recovered matched those supplied by the store and the televisions were returned to Shreveport Refrigeration. These circumstances exclude a finding that the televisions belonged to defendant.

Defendant’s argument that there was insufficient evidence to link him to the offense is totally without merit. Officer La-near pursued the car containing the missing televisions until it wrecked. Defendant was found within a few minutes running through the woods a short distance from the wreck during the early hours of the morning. He attempted to flee from the arresting officer. The general area was searched with the aid of bloodhounds after defendant’s arrest and no other suspects were found. Defendant’s appearance was similar to the perpetrator seen on the video tape and he was wearing the same type clothing. His fingerprint was found on one of the televisions found in the wrecked car. He confessed to the commission of the offense. This evidence excludes every reasonable hypothesis of innocence.

This assignment of error lacks merit.

ASSIGNMENT NO. 5

By this assignment defendant contends the trial court erred in denying his motion for a new trial. Two issues in addition to those discussed previously are raised for our determination.

Defendant first contends the trial court erred in admitting Detective Lindsay’s testimony as to his alleged confession because the state failed to prove he was confessing to the charged offense rather than to a burglary that occurred earlier the same morning at another Shreveport Refrigeration store. During the earlier burglary two television sets were taken. Defendant was suspected of having committed that offense but there is no indication in the record that he was formally charged with it.

Defendant’s complaint arises because the state’s response to a discovery motion stated he admitted to, “burglarizing Shreveport Refrigeration and removing two T.V.’s.” There is no further indication in the record that there was any doubt as to the offense defendant confessed to having committed. At the preliminary hearing Lindsay specifically stated that defendant confessed to burglarizing the 7600 Youree Drive store, the offense for which he was tried, and that he denied any involvement in the earlier offense. At trial no evidence was admitted concerning the earlier offense. On direct examination Lindsay stated, “He (referring to defendant) advised that he was responsible for the offense on Youree Drive ...” We conclude the state’s discovery response that defendant admitted to taking two televisions while the charged offense involved the theft of three sets was not an indication that defendant confessed to a different offense than the one for which he was charged.

Defendant next contends the jury improperly considered extraneous information during its deliberations. In the application for a new trial defense counsel alleges that after the verdict was rendered the jury foreman informed him of the following:

a. The jury considered and deliberated over why the Defendant, Donald Ray Morris, did not take the stand in his on (sic) defense.
b. The jury was convinced that Donald Ray Morris was a multiple offender because he was unable to make bond for the offense of simple burglary.

The trial judge stated he was satisfied that the jury complied with his instructions and denied the motion without hearing evidence. LSA-R.S. 15:470 precludes a juror from testifying as to what occurred during the jury’s deliberations. Defendant contends the court should have at least heard evidence on the allegation.

R.S. 15:470 provides:

No juror, grand or petit, is competent to testify to his own or his fellows’ misconduct, or to give evidence to explain, qualify or impeach any indictment or any verdict found by the body of which he is or was a member; but every juror, grand or petit, is a competent witness to rebut any attack upon the regularity of the conduct or of the findings of the body of which he is or was a member.

The prohibition contained in this article is not absolute and must give way when there is a reasonable possibility that a defendant’s constitutional right to a fair trial has been violated. State v. Sinegal, 393 So.2d 684 (La.1981); Durr v. Cook, 589 F.2d 891 (5th Cir.1979).

The policy behind 15:470 is to preserve the finality of jury verdicts and the confidentiality of discussions among jurors. State v. Charles, 377 So.2d 344 (La.1979); State v. Marchand, 362 So.2d 1090 (La.1978).

Well pleaded allegations of prejudicial juror misconduct violating the defendant’s constitutional rights require the court to. hold an evidentiary hearing, at which jurors shall be required to testify. In the event the testimony establishes that a constitutional violation occurred and a reasonable possibility of prejudice exists, a new trial must be ordered. Durr v. Cook, supra; State v. Graham, 422 So.2d 123 (La.1982); State v. Adams, 446 So.2d 355 (La.App. 3d Cir.1984).

Where the defendant fails to plead with particularity the juror’s misconduct in his motion for new trial members of the jury are not competent to testify under the provisions of 15:470. State v. Nathan, 444 So.2d 231 (La.App. 1st Cir.1983), writ denied 445 So.2d 1232 (La.1984).

In Durr v. Cook, supra, the defendant alleged in detail the juror’s misconduct and there the court held the juror was competent to testify. In State v. Nathan the defendant alleged only that a juror had been subjected to undue force by other jurors. The defendant called the juror to testify regarding these allegations. The trial court sustained the state’s objection to the juror testifying on the basis of 15:470 for the reason that the defendant failed to allege the nature or extent of pressure applied upon the juror by other jurors. The Nathan court approved the trial court’s action finding the defendant failed to present a substantial claim his rights had been violated.

The appellant here states only that the jury foreman said “that the jury considered and deliberated” over why the defendant did not take the stand. Defendant does not allege that the foreman said all of the jury or any one of the jurors disregarded the judge’s instructions and concluded the failure of the defendant to testify was an indication of his guilt or was a factor considered by them in concluding that the defendant was guilty.

The defendant only alleges that the jury foreman stated the jury considered him to be a multiple offender because he was unable to make bond. There was no evidence at trial that the defendant had failed to make bond. The defendant failed to allege where the jury obtained this information and further failed to state the reason why this information indicated to the jury that the defendant was a multiple offender; nor does the defendant allege that the jury or any of its members determined defendant’s guilt based upon their conclusion that he was a multiple offender.

The factual allegations do not meet the test of “well pled allegations of prejudicial juror misconduct.” The defendant fails to allege with particularity the basis for his contention that there has been jury misconduct in the nature of constitutional violations that created a reasonable possibility of prejudice.

We hold the defendant has not presented a substantial claim that his rights have been violated and for this reason the trial court’s action of denying a hearing wherein the members of the jury would be required to testify was correct based upon the requirements of LSA-R.S. 15:470.

The assignment of error related to the denial of the motion for new trial is without merit.

ASSIGNMENT NO. 6

By this assignment defendant contends the bill of information was substantively defective because it failed to indicate that the Shreveport Refrigeration store burglarized is some type of “other structure.” See LSA-R.S. 14:62 quoted in pertinent part in footnote # 4.

The bill of information originally stated that defendant, “did with intent to commit a theft therein, make an unauthorized entry of Shreveport Refrigeration ...” Prior to the close of the state’s case the prosecutor moved to amend the bill to read, “... make an unauthorized entry, a building owned by Shreveport Refrigeration ...” Defendant objected to the amendment contending the amendment altered the substance of the bill and for this reason the bill could not be amended under LSA-C. Cr.P. art. 487 A since the trial was in progress. The trial judge ruled that the amendment was one of form and allowed the state to amend.

After doing further research the trial judge decided he erred in his earlier ruling and declared a mistrial on the basis that the bill contained a defect of substance and could not be amended during trial. Defendant and the state objected to the declaration of a mistrial. A stay was granted on the court’s ruling to allow the state to apply for writs. A panel of this court granted the writ and ruled that the declaration of a mistrial was error in light of defendant’s objection. The trial judge was ordered to continue the trial.

The trial judge relied on the case of State v. McDonald, 178 La. 612, 152 So. 308 (1934) to support his decision that the bill of information was substantively defective. There it was charged that the defendants, “unlawfully did break and enter, in the night time, the American Hat Company ...” The court found the bill of information was fatally defective because it did not state that the defendants entered a dwelling, building or other structure.

The supreme court expressly overruled McDonald in the case of State v. James, 305 So.2d 514 (La.1974). See also State v. Turner, 337 So.2d 1090 (La.1976). The rule announced in James is:

... [WJhere in fact an accused has been fairly informed of the charge against him by the indictment and has not been prejudiced by surprise or lack of notice, the technical sufficiency of the indictment may not be questioned after conviction where, as here, no objection was raised to it prior to the verdict and where, without unfairness, the accused may be protected against further prosecution for any offense charged by it through examination of the pleadings and the evidence in the instant prosecution.

Defendant does not contend he was surprised or prejudiced by the alleged defect in the bill of information. The information contained in the bill was sufficient to place defendant on notice of the crime charged. Furthermore, defendant never formally objected to the sufficiency of the bill. His objection at trial was not that the bill was substantively defective; rather it was that the amendment was one of substance. He thereafter objected to the trial court’s declaration of a mistrial on the grounds that the bill was defective. The defendant first attacks the bill of information as defective in a motion in arrest of judgment filed after verdict.

This assignment of error lacks merit.

ASSIGNMENT NO. 7

By this assignment defendant contends the trial judge gave inadequate weight to two mitigating circumstances in determining the sentence to be imposed and the sentence imposed is excessive. The mitigating circumstances to which defendant refers are, the burglary involved no physical violence and he has two dependent children in need of his financial support.

The maximum sentence to which defendant was exposed on the simple burglary conviction is twelve years. This sentence could have been doubled for a total of twenty-four years under the multiple offender bill filed against defendant. LSA-R.S. 15:529.1 A(l). The eighteen years defendant received is well within the statutory maximum.

The sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Hammonds, 434 So.2d 452 (La.App.2d Cir.1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir.1983); State v. Square, 433 So.2d 104 (La.1983).

A sentence is constitutionally excessive in violation of Louisiana Constitution of 1974 Art. 1, § 20 if it is grossly out of proportion to the severity of the offense or nothing more than a needless and purposeless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983).

The sentencing guidelines of LSA-C. Cr.P. art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983); State v. Sepulvado, 367 So.2d 762 (La.1979).

The presentence investigation report compiled at the direction of the trial judge shows that defendant has an extensive history of criminal behavior including several theft type charges and convictions. He had a prior felony conviction for simple burglary. The report shows he has a prior conviction for criminal neglect of family. The support provided his children by defendant is at best sporadic.

At defendant’s sentencing hearing the trial judge thoroughly complied with 894.1. The judge determined defendant’s criminal record far outweighed any mitigating circumstances and he noted defendant has persisted in this criminal behavior despite his repeated confrontations with the law. We find no abuse of discretion in the sentence imposed.

This assignment of error lacks merit.

Defendant’s conviction and sentence are AFFIRMED.

      . Before questioning defendant on both occasions Lindsay read him his Miranda rights and defendant signed waiver of rights forms.

      . Defendant makes much of the fact that Derrick stated he never handled the clothing. The record reveals that Derrick was never asked if Meriam handed him a paper bag.

      .Apparently the shirt and pants are standard type apparel. These items were tentatively identified.

      . Simple burglary is defined as, "the unauthorized entering of any dwelling, vehicle, watercraft, or other structure ... with the intent to commit a ... theft therein ...” R.S. 14:62. Theft is defined in part as the taking of anything of value which belongs to another. LSA-R.S. 14:67.

      . The earlier burglary occurred at the Shreveport Refrigeration store located in the Shreve City Shopping Center which is on the Shreveport-Barksdale Highway.

      . C.Cr.P. 487 A provides:
      A. An indictment that charges an offense in accordance with the provisions of this Title shall not be invalid or insufficient because of any defect or imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling, or improper English, or because of the use of any sign, symbol, figure, or abbreviation, or because any similar defect, imperfection, omission, or uncertainty exists therein. The court may at any time cause the indictment to be amended in respect to any such formal defect, imperfection, omission, or uncertainty.
      Before the trial begins the court may order an i idictment amended with respect to a defect of substance. After the trial begins a mistrial shall be ordered on the ground of a defect of substance, (emphasis supplied)


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Charles E. OWENS, Appellant.
    No. 16417-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    Rehearing Denied Oct. 26, 1984.
    Jones & Jones by Benjamin Jones, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Geary S. Aycock, Asst. Dist. Atty., Monroe, for appellee.
    Before HALL, MARVIN and NORRIS, JJ.
   MARVIN, Judge.

In this sentence appeal, defendant Owens complains that the trial court abused its discretion by requiring that he serve six months in jail as a condition of probation on a suspended sentence of three years at hard labor for distribution of marijuana. LRS 40:966. He contends that the trial court “violated” the sentencing guidelines because a “probationary sentence” should have been imposed. CCrP Art. 894.1. We find no error and affirm.

This 30-year-old defendant is married and is the sole proprietor of a restaurant business, a college graduate, and a first felony offender. He was once employed as a guard by the State Department of Corrections. On three occasions during a four week period defendant sold a bag of marijuana for $25 to a “friend,” who was working as an undercover narcotics officer. The sales were made at or near defendant’s restaurant and on one occasion the marijuana was obtained from defendant’s personal automobile. Defendant was charged with three counts of distribution which exposed him to a 10 year sentence on each count.

Defendant agreed to plead to one count and to forfeit his automobile. The State agreed to dismiss the other two counts. A PSI report is contained in the record of the sentencing hearing.

At the sentencing hearing, the trial court mentioned all of the facts which we have recited but did not expressly relate or check off these facts to the particular factors listed in CCrP Art. 894.1. We find this articulation sufficient. The record also shows sufficient consideration of the CCrP Art. 894.1 factors. State v. Smith, 433 So.2d 688 (La.1983); State v. Hammonds, 434 So.2d 452 (La.App.2d Cir.1983), writ denied. The sentence is particularized and may be characterized as “lenient,” notwithstanding the trial judge’s comment that neither he nor the law was lenient in drug cases. Six months in jail as a condition of probation on a suspended three year hard labor sentence for distribution of marijuana is not constitutionally excessive. LSA-Const., Art. 1, § 20.

AFFIRMED.


author: SEXTON, Judge.

text:
    STATE of Louisiana, Appellee, v. David Ray BAILEY, Appellant.
    No. 16423-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    Smith & Hingle by J. Randolph Smith, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Earl Cox, Asst. Dist. Atty., Monroe, for appellee.
    Before JASPER E. JONES, FRED W. JONES, JR., and SEXTON, JJ.
   SEXTON, Judge.

The defendant, David Ray Bailey, age 23, was charged in a single bill of information with three counts of Simple Burglary in violation of LSA-R.S. 14:62, and Theft or, in the alternative, Receiving Stolen Things of a Value Over One Thousand Dollars in violation of LSA-R.S. 14:67/14:69. The defendant pled guilty to one count of simple burglary and one count of unauthorized use of a movable of a value in excess of one thousand dollars, a felony offense which carries a maximum punishment of a five thousand dollar fine and/or imprisonment with or without hard labor for not more than three years. The defendant received ten years at hard labor of a possible twelve years hard labor on the simple burglary charge, and received the maximum sentence of three years hard labor on the unauthorized use charge. The sentences were ordered to be served concurrently. He now appeals, urging the excessiveness of his sentences. We affirm.

It is well-settled that the sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Square, 433 So.2d 104 (La.1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir.1983); State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir.1983), writ denied 439 So.2d 1074 (La.1983).

The sentencing guidelines of LSA-C.Cr.P. Art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Hammonds, supra; State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983); State v. Smith, 433 So.2d 688 (La.1983).

The instant offense resulted from the defendant’s unauthorized entry into a car dealership from which the keys to a 1981 automobile were taken. The defendant was arrested several hours later after running a red light while driving the stolen vehicle. The defendant complains that the sentences imposed upon him are excessive because he is not a “worst offender” nor is the offense committed by him a “worst offense.” Further, the defendant complains that there was inadequate articulation of LSA-C.Cr.P. Art. 894.1 factors to justify the sentence actually imposed upon him.

A pre-sentence investigation prepared at the direction of the trial court indicated that the defendant is at least a third felony offender having been twice convicted of burglary. The pre-sentence investigation further indicated that the defendant, having been placed previously on probation, was revoked because of the commission of another burglary offense. The pre-sen-tence investigation further indicated that the defendant has a good relationship with his family and had completed the ninth grade, but has no job skills.

While the ten year hard labor sentence imposed upon the defendant is a severe penalty, we cannot and do not find that this constitutes a constitutionally excessive sentence in light of the offense committed and the defendant’s prior history of criminal conduct and his inability to maintain a crime-free life while subject to probation or parole. We find adequate articulation of LSA-C.Cr.P. Art. 894.1 factors in sentencing the defendant and further find no abuse of discretion in the imposition of these two sentences for the offenses committed. Accordingly, the defendant’s sentences are affirmed.

AFFIRMED.


author: NORRIS, Judge.

text:
    Frager FORD and Betty Ford, Appellants, v. PLAIN DEALING CHARCOAL CO., INC., et al., Appellees.
    No. 16428-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.

      Davis Law Office & Legal Clinic, Inc. by S.P. Davis, Shreveport, for appellants.
    Cook, Yancey, King & Galloway by Herschel E. Richard, Jr., Shreveport, for appel-lees.
    Before PRICE, HALL and NORRIS, JJ.
   NORRIS, Judge.

In this worker’s compensation proceeding seeking death benefits, penalties and attorney’s fees, Betty Ford and her minor children appeal the granting of defendant’s motion to dismiss at the close of plaintiff’s case at trial.

This proceeding was instituted on September 2, 1981 by Frager Ford and Betty Ford, the father and mother of the deceased minor child Michael Ford, against Plain Dealing Charcoal Co., Inc., its insurer; Arkansas Charcoal Co., Inc., its insurer; Arrow Industries, Inc., d/b/a Campfire Charcoal Co., Inc., and its insurer for worker’s compensation benefits allegedly owed as a result of the death of Michael on September 6, 1979. Michael’s death occurred when he was backed over by a truck owned by Plain Dealing Charcoal Co., Inc., and driven by Frager Ford, its employee, while unloading unfinished materials utilized in the manufacture of charcoal at the Plain Dealing Charcoal plant in Plain Dealing.

A prior suit had been instituted by Mr. and Mrs. Ford against Campfire Charcoal Company, Inc., seeking the identical relief sought herein. It was dismissed with prejudice after testimony adduced at trial revealed that neither Frager Ford nor Michael Ford was an employee of Campfire Charcoal at the time of Michael’s death. The dismissal of that suit was affirmed by this court in an unpublished opinion.

Earlier in this proceeding, all defendants filed exceptions of prescription and defendant Campfire Charcoal filed an exception of res judicata. All of these exceptions were sustained by the trial court and this proceeding was dismissed. The Fords appealed that judgment and this court affirmed the sustaining of the exception of res judi-cata and the exceptions of prescription filed by all defendants with the exception of Plain Dealing Charcoal. That portion of the judgment was reversed and the matter returned to the district court for further proceedings. See Ford v. Plain Dealing Charcoal Co., Inc., 419 So.2d 120 (La.App. 2d Cir.1982).

Thereafter, trial on the merits commenced. At the close of the plaintiff’s case, Plain Dealing Charcoal filed a motion to dismiss pursuant to La.C.C.P. Art. 1810 alleging that there had been a failure to produce any evidence to support the contention that Michael was employed by Plain Dealing Charcoal at the time of his death and that there had been a failure to prove the dependency of the Fords upon Michael for support, both elements being essential to the proof of the Fords’ case.

The Fords’ evidence can be summarized as follows:

Earl Riley, a supervisor at Plain Dealing Charcoal, testified that he hired Frager Ford, Sr. as a truck driver at the Plain Dealing plant to haul “slabs,” an unfinished product used to make charcoal, in June, 1979. Riley testified he informed Ford at that time that riders were not allowed in company trucks and that he could not hire helpers to assist him in loading and unloading the slabs. He distinguished the employees who were hired to haul slabs from those who were hired to haul finished products, i.e., charcoal, because the company allowed charcoal haulers to hire additional help to load and unload. Riley admitted that he had observed Ford and his sons on one occasion at the Plain Dealing plant loading and unloading slabs and that he had notified the actual plant manager to inform Ford that his sons were not allowed to engage in those activities or to be on the trucks. Riley further testified that he was not aware that Ford had “hired” his sons to assist him. He reiterated that company policy did not allow employees to hire help to load and unload slabs and that the only person whom he ever observed utilizing help for this purpose was Ford. Riley stated that he had never consented to allow Michael to work for the company, that Michael was never subject to his control, that he never gave Ford permission either for his sons to work with him or to ride in the company truck, and that he expressly informed Ford when he was hired in June that he could not use helpers to assist him with his work.

The Fords called a number of other witnesses who had been employees with the defendant company at the time. In essence, they stated that they knew Frager, Sr. and that they had seen him being assisted by his sons on the truck, with varying degrees of frequency. They all emphasized that they themselves had never secured help to load or unload slabs, but they denied ever having received any specific instructions not to do so. One of them said the plant supervisor and manager had observed Ford’s operation and had taken no action.

Betty Ford, the widow of Frager Ford, Sr., and Frager Lee Ford, Jr. testified at trial on both the employment and dependency issues. Because Frager Ford, Sr. died of unrelated causes prior to trial on the merits, his deposition was introduced in lieu of his testimony. In substance, the family members’ testimony was as follows: Frager Ford, Sr. was employed by Plain Dealing Charcoal as a truck driver to haul slabs with related duties, which sometimes included loading and unloading the slabs. All of the expenses incidental to operating the truck he used were paid directly by Plain Dealing and he was compensated by the mile and by the load. His employment with the company commenced in June, 1979. At the time of Michael’s death, Michael was 14 years of age and Frager, Jr. was 10 years old. Michael and Frager, Jr. did assist Frager, Sr. in loading and unloading slabs from his truck; each week Frag-er, Sr. would cash his check, pay his two sons $40 each in cash; the two boys would give the $40 to their mother who would then return $10 apiece to them for spending money and the remaining $30 would be commingled with the money Mrs. Ford received from Frager, Sr. and used by her to meet the entire needs of the family. No one outside of the immediate Ford family knew about this arrangement. Neither of the boys received money from Plain Dealing Charcoal for any alleged activities engaged in connection with working with their father. No checks or receipts for either the money received from the minors or by them exist. Frager, Sr. did not withhold social security for his sons, he made $7416 from June 26, 1979 to the end of 1979, and he claimed both Michael and Frager, Jr. as dependents on his 1979 state and federal income tax returns.

The testimony of Frager, Sr. and his son Frager, Jr., reveals that on September 6, 1979, Frager, Sr. picked up his sons at home and took them with him to pick up a load in Arkansas. With their help, Ford loaded the truck at an Arkansas mill and brought it back to the Plain Dealing plant. While backing up to unload 4 x 4’s at the plant he heard one of the boys scream. When he stopped the truck and got out, Ford discovered that Michael had been crushed to death by the truck.

In oral reasons, the trial court stated:

* * ⅜ —[i] don’t believe there’s been any showing that there was any direct employee-employer relationship and the only way that the Court could find any relationship would be whether or not its statutory employ, [sic] * ⅛! [Statutory employees are employees who do the same type of work that other employees that are hired by the company do. In this particular case, Mr. Ford and the other drivers were required to load and unload and was paid for that service. For that reason, these young boys could be statutory employees under the law as I appreciate it, especially with the knowledge — may have not been direct or specific consent of the employer, but with at least the tacit consent because there has been no showing that anyone ever told him that they could not be with him in the truck. " ⅜ * [A]nd for the purposes of this motion, I’m going to consider that Michael Ford was a statutory employee and that his parents would have been entitled, or would be entitled to recover if the dependency could be shown. ⅛ ⅞ s I don’t, however, believe in this particular case that any dependency has been shown. I think the dependency shown is that the children depended on their father and mother for everything that they had and — changing money from one hand, and to be honest with you, I don’t believe that there was ever this exchange of money that the Fords testified to — giving $4-0.00 to their mother and getting $10.00 back is — is a ludicrous situation — I don’t believe that that occurred.... I don’t believe there has been showing of dependency * * *. [Emphasis supplied.]

Therefore, the trial court granted the motion to dismiss resulting in this appeal, which assigns as error the granting of the motion to dismiss based on the factual findings that (1) the plaintiffs had failed to prove an employer-employee relationship between Michael Ford and Plain Dealing Charcoal and (2) the plaintiffs had failed to prove dependency.

First, we note that the trial court did not expressly find that the Fords had failed to prove an employer-employee relationship between Michael and Plain Dealing Charcoal. Rather, it concluded there was insufficient evidence to prove a direct employer-employee relationship, and seemed to concede that there was statutory employee relationship for purposes of the motion to dismiss. Thus, the trial court’s judgment was based on whether or not the Fords had proven the requisite dependency under La. R.S. 23:1252.

For the purpose of this opinion, we will pretermit any discussion of the correctness of the trial court’s approach to the employer-employee relationship. The only issue presented by this appeal is whether the plaintiffs who claimed death benefits proved the requisite dependency necessary for them to prevail. Finding that the trial court was not in error in this regard, we affirm its holding.

La.R.S. 23:1251 provides:

The following persons shall be conclusively presumed to be wholly and actually dependent upon the deceased employee:
(1) A surviving spouse upon a deceased spouse with whom he or she is living at the time of the accident or death.
(2) A child under the age of eighteen years (or over eighteen years of age, if physically or mentally incapacitated from earning) upon the parent with whom he is living at the time of the injury of the parent, or until the age of twenty-three if enrolled and attending as a full-time student in any accredited educational institution.

Clearly, the Fords do not fall within the ambit of this statute. Accordingly, in order for them to recover, their proof must show that they are entitled to recover under La.R.S. 23:1252 which provides:

In all other cases, the question of legal and actual dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of the accident and death; in such other cases if there are a sufficient number of persons wholly dependent to take up the maximum compensation, the death benefit shall be divided equally among them, and persons partially dependent, if any, shall receive no part thereof.

In considering the effects of this statute, the court in Hurks v. Bossier, 367 So.2d 309, 310 (La.1979), stated:

Dependency is discussed in The Law of Workmen’s Compensation by Arthur Larson, Matthew Bender, Volume 2, 1976, § 63.11:
The general test of dependency may be stated as follows: A showing of actual dependency does not require proof that, without decedent’s contributions, claimant would have lacked the necessities of life, but only that decedent’s contributions were relied on by claimant to maintain claimant’s accustomed mode of living.
It follows that there can be no absolute dollar standard by which to test either the magnitude of claimant’s need or the magnitude of decedent’s help in meeting that need. What counts is the relation between the two. So, although ordinarily the receipt of only $65 could scarcely be expected to establish dependency, dependency was indeed found in a case involving a claimant who was living in extreme poverty with virtually no income.
As for partial dependency, the standard is stated in Larson’s work at § 63.12:
Partial dependency may be found when, although the claimant may have other substantial sources of support from his own work, from property, .or from other persons on whom claimant is also dependent, the contributions made by the decedent were looked to by the claimant for the maintenance of his accustomed standard of living.

Further discussion of this issue is found in Durbin v. Argonaut Insurance Company, 393 So.2d 385, 387 (La.App. 1st Cir.1980):

In 14 Louisiana Civil Law Treatise, Workers’ Compensation, Section 309 (West, 2nd Ed. 1980), Professors Wex Malone and H. Alston Johnston, III, comment that:
... in all cases (except where the dependency of the spouse and child is conclusively presumed), the claimant must prove dependency by establishing both a need for support and also the fact that contributions to his support were actually made by the deceased during the latter’s lifetime.
Thus, it is commonly held that neither need for support nor the existence of a moral or legal obligation to support is sufficient proof of dependency if there is not showing that the deceased in fact contributed to the claimant’s support.
The dependency must have existed at the time of the accident and death. Proof of prior dependency is not sufficient, and contributions made by the deceased to a partial dependent more than a year before the death cannot be included in determining the amount of compensation to which a partial dependent is entitled. [Emphasis supplied.]

Thus, under the applicable jurisprudence, the fact of dependency in worker’s compensation claims of this nature is proved by evidence that the deceased employee made actual contributions to the support of the claimant. Moore v. Millers Mutual Fire Insurance Company of Texas, 406 So.2d 708 (La.App. 2d Cir.1981). The only evidence in the instant case to the effect that Michael made actual contributions to the support of the claimants was the self-serving testimony of Mr. and Mrs. Ford and that of their son, Frager, Jr. The trial court totally rejected their testimony about this most unusual financial arrangement between these parents and their two minor sons as incredible when it found that there was never an exchange of money from Michael to Mrs. Ford. Not only was Michael not providing any money for the support of the family but in fact he was being wholly supported by his father. This credibility finding under the circumstances of this case is within the province of the trial court and is supported by the record which is devoid of any written corroboration on this essential point and which includes the income tax forms filed by the Fords in 1979 showing both Michael and Frager, Jr. as dependents.

This case was decided on a motion for judgment of dismissal under La.C.C.P. Art. 1810(B). In considering such a motion the trial judge must weigh and evaluate all the evidence presented up to that point and must grant the dismissal if he finds the plaintiff has not established proof by a preponderance of the evidence of the facts essential to relief. The trial judge has much discretion in determining whether or not to grant a motion for judgment of dismissal. In Re H, 437 So.2d 895 (La.App. 2d Cir.1983).

Accordingly, we conclude that under the facts of this case the trial court did not err in granting the motion to dismiss because the Fords have failed to prove dependency by a preponderance of credible evidence and they are not entitled to the relief sought.

For the foregoing reasons, the judgment of the trial court granting the motion to dismiss is affirmed at the cost of appellants.

JUDGMENT AFFIRMED.


text:
    Cicero Garner JURLS, Plaintiff-Appellant, v. LAMA DRILLING COMPANY, INC., Defendant-Appellee.
    No. 16432-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    Writ Denied Nov. 26, 1984.

      David L. Carriere, Opelousas, for plaintiff-appellant.
    Mayer, Smith & Roberts by Kim Hanson LaVigne, Shreveport, for defendant-appel-lee.
    Before HALL, MARVIN and NORRIS, JJ.
   MARVIN, Judge.

Plaintiff appeals a summary judgment rejecting his demands in tort against Lama Drilling Company, Inc., on the finding of no dispute of the material fact that Lama was plaintiff’s statutory employer and immune from tort liability under LRS 23:1032, 1061. CCP Art. 966. We affirm.

Under a written contract with an exploration company, Lama obligated itself to drill a well on a Mississippi well site for a stated price per day and to “move in, rig up, tear down, and move out” Lama’s drilling rig for a lump sum price. Lama orally contracted with plaintiff’s primary employer, Newport Trucking Company, Inc., to tear down the Lama rig after drilling was completed and to transport it elsewhere. Plaintiff was injured while assisting Lama employees in tearing down the rig. He sued Lama, alleging that a Lama employee negligently caused him injury.

The worker’s compensation law states that a principal is liable to its statutory employees in either of two situations under the disjunctive definition of principal in LRS 23:1032 and 1061. The principal is liable to those employees of an employer who undertakes to execute any work which is a part of the principal’s trade, business or occupation, and to those employees of an employer who contracts with the principal to execute any work which the principal had contracted to perform. Under either definition, a principal is granted immunity from tort liability to such statutory employees. § 1032, Barnwell v. American Well Service & Salvage, 432 So.2d 917 (La.App.3d Cir.1983); Richard v. Weill Const. Co., Inc., 446 So.2d 943 (La.App.3d Cir.1984).

The trial court found that the relationship of Lama and the primary employer of plaintiff satisfied both of the § 1032 definitions. Plaintiff’s employer undertook to execute work which was a part of Lama’s business as a drilling contractor, and plaintiff’s employer contracted with Lama to execute work which Lama had contractually obligated itself to perform. We find no error in the trial court’s conclusions.

Plaintiff contends that because of “wide divergence” and ambiguity in the contract between Lama and the exploration company, Lama did not meet its burden of establishing the material fact that Lama contracted to remove the rig from the well site. Plaintiff argues that Lama and the exploration company contemplated that plaintiff’s primary employer would perform this work because Lama did not employ drivers and operators or own the truck and crane that were to be used in moving the Lama rig.

The facts of the individual case determine whether a particular activity is a part of the principal’s business under LRS 23:1032, 1061. While this court and other courts have supplied adjectives such as usual, necessary, customary, and routine to modify the statutory language “part of the business of the principal,” the adjectives do not facilitate resolution of what is or is not a “part” of the business. See Lewis v. Exxon Corp., 441 So.2d 192, 198 (La.1983); Foster v. Western Electric Company, 258 So.2d 153, 155 (La.App.2d Cir.1972); Malone-Johnson “Workmen’s Compensation,” 2d Ed., La.Civil Law Treatise, Vol. 13, § 126, p. 252. The more accurate inquiry is whether the activity or work in question can reasonably be said to be a “part of the nature and purpose of the principal’s [business] enterprise.” Lewis, cited supra.

Employees of hauling or trucking contractors that serve the oil and gas industry have been recognized consistently as statutory employees of the principal who hires the hauling contractor. See Malone-Johnson § 126, p. 254, and cases there cited and discussed. Drilling contractors serve exploration companies in the oil and gas industry. Hauling contractors serve drilling contractors. The drilling contractor moves its rig to the explorer’s well site, drills to the desired depth, and then removes the rig to another location. See Malone-Johnson, cited supra. We have no difficulty concluding that plaintiff and his primary employer were performing work (removing the rig from the well site) that was a part of the nature and purpose of Lama’s drilling business, even though Lama did not own trucks and cranes to do this work.

Moreover, Lama was contractually obligated to execute this work by a special typewritten provision of its written contract with the exploration company. The contract is on a form entitled International Association of Drilling Contractors DRILLING BID PROPOSAL AND DAY WORK DRILLING CONTRACT — U.S., Revised September 1979. The form consists of nine pages and includes four pages of contract language, and two exhibits totaling five pages. The contract expressly obligated Lama to “move in, rig up, tear down, and move out” its drilling rig for a stated “lump sum” price to be paid by the exploration company. The fact that the printed check list in the exhibit contains language that states that many items of the work, including “transportation” of Lama’s property, shall be “provided by and at the expense” of the operating company, does not make ambiguous the special provision' of the contract that obligates Lama. We construe the contract as a whole and agree with the trial court that Lama also is a principal under the second of the definitions of principal in the worker’s compensation law. § 1032.

For the reasons and authorities given by the trial court which we have summarized and supplemented, and at appellant's cost, summary judgment is affirmed.

      . "For purposes of this Section, the word 'principal' shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the' execution thereof." LRS 23:1032, in part, with emphasis.


author: HALL, Judge.

text:
    In re D.W.H., Applying for Adoption.
    No. 16435-CAJ.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.

      J. Eugene Osburn, Monroe, for defendant-appellant.
    Blackwell, Chambliss, Hobbs & Henry by Sam 0. Henry, III, West Monroe, for plaintiff-appellee.
    Before PRICE, HALL and NORRIS, JJ.
   HALL, Judge.

This appeal involves a stepparent adoption proceeding in which a father challenges the district court’s granting of the adoption of his nine-year-old son by the stepfather. Issues on appeal arise out of two findings of the court. The court found that the necessity of the father’s consent to the adoption was vitiated under LSA-R.S. 9:422.1 by his failure to comply with a court order of support for a period of one year. The court further found that the best interests of the child were served by granting the adoption. Based on our evaluation of the latter issue we reverse.

The Facts

The child’s parents were divorced on December 15, 1976. Custody was awarded to the father due to the mother’s lifestyle and conduct. The mother remarried in 1977 and the father voluntarily surrendered custody to her in 1979. On September 9, 1980, the mother obtained legal custody and the father was ordered to pay $100 per month in child support. At that time the father, as well as the mother, child, and stepfather, resided in the Monroe area. No support payments were made until October 28, 1981 — one month after the mother, child, and stepfather moved to Atlanta, Georgia in order for the mother and stepfather to attend the Salvation Army’s ministerial school. On that date the father sent the mother a check for $100 which she did not cash. On January 18, 1982, the stepfather petitioned to adopt the child. In June 1982, the family moved to Montgomery, Alabama where they resided at the time of the adoption hearing in November 1983. A formal judgment granting the adoption was signed on February 2, 1984.

Issue No. 1:

When the stepparent’s spouse is the legitimate parent of the child, and has custody of the child, LSA-R.S. 9:422.1 provides that the consent of the other legitimate parent is not needed for the stepparent to adopt, if the other legitimate parent has failed to comply with a court order of support for one year. Here the record shows that while appellant was ordered to pay $100 per month in child support on September 9, 1980, no payment was tendered until October 28, 1981. Although failure to support may be excused by just cause, see Adoption of Rapp, 348 So.2d 107 (La.App. 4th Cir.1977), appellant has the burden of proving just cause. Berry v. Berryhill, 330 So.2d 405 (La.App. 3d Cir.1976).

Appellant contends that the mother refused constant offers of monetary support during the one-year period, but told appellant he could buy clothes and other items and give them to the child. The mother denied this contention. The district court judge, although of the opinion that the stepfather and mother planned and contrived the setting for the adoption, nevertheless found that the father failed to sustain his burden of proving the mother relieved him of his support obligation. The record indicates the trial judge’s findings are reasonable; these findings will not be disturbed by this court. Pierre v. Landry, 341 So.2d 891 (La.1977).

Appellant further contends that the clothing and other items given to the son should be considered in support of the son. However, the support obligation may only be met by making payments to the custodial parent. In re Jones, 337 So.2d 283 (La.App. 2d Cir.1976). As stated in Rodriguez v. Rodriguez, 245 So.2d 765, 769 (La.App. 4th Cir.1971):

“The court will not allow itself to be put into the position of an accountant, computing every donation made by the father to his son. His obligation is to support the minor child by making payments to the mother, and it is only by so complying that he may fulfill this obligation.”

Neither the appellant’s contention that his support obligation was relieved, nor his contention that his support obligation was otherwise fulfilled can be considered just cause for noneompliance with the support order.

Appellant submits that just cause should be found in the present case because of the factual similarities with In re Ragas, 393 So.2d 925 (La.App. 4th Cir.1981). In Ragas the father was found to have just cause for failure to support because of his physical condition and the mother’s refusal to communicate or accept his attempts to contribute small sums of money. The sums offered were small due to the father’s serious physical problems, including epilepsy, that precluded any lasting employment. In the present case appellant has also experienced physical problems that have affected his ability to earn a living. Appellant testified that he suffered a spinal injury in March 1981, and was unable to work since that time. He underwent two operations as a result of his injury—the first prior to the time of his son’s move to Atlanta. Further degeneration of his spine indicated the need for a third surgery, a spinal fusion, but arthritis made the benefits of such surgery doubtful. However, unlike the Ragas case, appellant’s testimony indicates no physical problems existed during the greater portion of the one-year period in question, and further indicates no inability to make payments during the remainder of the year. On the contrary, appellant testified he had offered payments but had been refused. While appellant’s injuries appear serious and explain his inability to work or travel out of state to see his son, they do not excuse his lack of support. Furthermore, the mother did not refuse to communicate with the father, and although she did refuse to cash the check of October 28, that check was not sent until after the one-year period had expired. Therefore, the pertinent facts of Ragas are clearly distinguishable from the present case.

We conclude that the trial judge was correct in finding appellant failed to comply with the child support order over a one-year period, that no just cause existed for this failure, and that appellant’s consent to the adoption was unnecessary.

Issue No. 2:

The Louisiana Supreme Court in Adoption of Latiolais, 384 So.2d 377 (La.1980), held that LSA-R.S. 9:422.1 applies only to the narrow question of parental consent to a minor’s adoption, and does not set the criteria for deciding whether an adoption should be granted. Instead, the best interest of the child is the major standard to which a court should look when determining whether to grant an adoption. In Latiolais, despite the father’s failure to pay court-ordered child support for a period in excess of one year, the application of the best interest of the child standard resulted in the denial of a stepparent adoption. This court also has found the best interest of the child sometimes better served by disallowing stepparent adoptions in cases where the father has failed to comply with his support obligation. In re Glass, Applying for Adoption, 424 So.2d 383 (La.App. 2d Cir.1982); In re Hinton, 390 So.2d 972 (La.App. 2d Cir.1980).

Although each adoption case must be determined on its own facts, both the Glass and Hinton cases, supra, provide guidance as to the proper factors to be considered, and the proper focus to be taken in determining the best interest of the child. In Hinton this court noted two interrelated factors to be considered in determining the best interest of the child — the seriousness and finality of the severing of the relationship between parent and child, and the importance and benefit to the child of a continued relationship with a parent. Similarly, in Glass a dual focus was found appropriate in determining the child’s best interest:

“It is not enough to examine the love and home environment provided by the petitioner/stepparent. It is necessary as well to examine the depth and closeness of the child’s ties with the noncustodial parent, and the effect which the loss which this relationship would have on the child.”

The importance of the natural bond between parent and child in a determination of the child’s best interest is apparent in both Glass and Hinton. Although a close relationship existed between the child and stepfather in those cases, adoption was not allowed when, as in Glass, a close relationship also existed between the child and the natural parent, or when, as in Hinton, a close relationship had existed, could be reestablished, and would not interfere with the relationship between the child and stepfather.

In the present case the district court judge determined the best interest of the child would be better served by granting the stepparent adoption. As noted in Hinton, the judge has great discretion in making this determination, and this court ordinarily will not try to second-guess such a sensitive balancing of interests. Nevertheless, when severing the natural bond between parent and child, the district court’s judgment must reflect a careful balancing of the importance of all interests, including the importance of the natural bond itself. “Ties between parent and child, being the closest and strongest within the human family, courts sever them with great reluctance.” Roy v. Speer, 249 La. 1034, 192 So.2d 554 (1966).

The district court judge noted that father and child maintained frequent contact and association when all parties resided in Monroe, but that the child’s attention to his father waned following the move to Atlanta when contact became less frequent. The judge felt the father could have maintained closer contact and visitation. However, nowhere in his reasons for judgment does the judge mention the father’s serious physical problems. As noted, appellant testified that after his injury in 1981, he was unable to travel to see his son, although he continued to' contact his son by phone. The combination of appellant’s spinal injury plus the son’s move out of state, both circumstances beyond the appellant’s control, go far in explaining the decline in the father/son relationship after 1981. Also pertinent are the judge’s findings that there were occasions when the mother did not notify the father of the child’s presence in this state when the family returned for visits, and that the adoption setting was contrived by the mother and stepfather who apparently needed the adoption to be confected to be promoted in the Salvation Army organization.

When determining the importance of the natural bond between parent and child in an evaluation of the child’s best interest, a weakening of that bond caused by circumstances largely beyond the control of the noncustodial parent, and caused at least in part by actions of the custodial parent, indicates that a greater importance should be placed on the nature and strength of the bond prior to its weakening. The trial judge in this case indicates that prior to the appellant’s injury and the child’s move out of state, father and son enjoyed frequent contact and association, but the judge makes no mention of the quality of that relationship. Aside from conflicting testimony of witnesses, the record indicates that when father and son were together, they played ball, went to ballgames and on fishing trips, and visited with the paternal grandfather with whom the child had a good relationship. Notably, two years after the contacts between father and son were drastically reduced, the son testified that if the adoption were granted he would still love his father, but favored the adoption because of his embarrassment at having a last name different from his mother. This testimony of continuing love for the father indicates that the bond between parent and child prior to the child’s move out of state was significant.

Although the child also testified to a close relationship between child and stepfather, and to a desire for the stepfather to become the child’s new father, the child indicated that should his mother again remarry, he would desire to change his name again and have the new husband as his father. While a good relationship between child and stepparent is a factor to consider in determining the best interest of the child, this relationship in itself does not indicate the need to sever the natural parent/ child bond, especially absent a showing that the child’s relationship with the natural parent will interfere with the relationship of child and stepparent. Ordinarily, a child’s knowledge that he is loved and cared for by both his stepparent and the natural parent will not be in derogation of the child’s best interests. Here there is no showing that the relationship between appellant and his son would detrimentally affect the son’s relationship with his stepfather. Nor is there no hope that in the future father and son can establish a closer relationship, although at present this relationship apparently will depend to a great extent on telephone conversations, letters, and other forms of less personal communication and contact.

In a case where a significant father/son relationship once existed, where the relationship was weakened by circumstances largely beyond the control of the father and contributed to by the mother, and where there is no indication that a reestablishing of that relationship could not occur or would be detrimental to the stepfather/stepson relationship, we cannot agree that the child’s best interests are served by granting the adoption, and thus forever severing the natural bond between parent and child.

Decree

Accordingly, the judgment of the district court granting this stepparent adoption is reversed, and the petition for adoption is rejected. Costs are assessed to the petitioner.

Reversed and rendered.


text:
    STATE of Louisiana in the Interest of D.L.
    No. 16442-CAJ.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.

      Nancy F. Gilliland, Monroe, for defendant-appellant.
    Richard Ducote, New Orleans, for plaintiff-appellee, Department of Health and Human Resources.
    Jay Nolen and Lee Ineichen, Monroe, curators ad hoc for absent father.
    Before HALL, MARVIN and NORRIS, JJ.
   HALL, Judge.

The mother of an 11-year-old boy appeals the judgment of the Monroe City Court, acting in its capacity as a juvenile court, decreeing her child abandoned and terminating her parental rights. The issues presented are whether the city court judge was correct in overruling a timely exception of improper venue, and whether the city court judge was correct in finding the Department of Health and Human Resources (DHHR) carried its burden of showing the child to be abandoned. We affirm the judgment of the juvenile court.

Factual Background

Appellant was born in Mississippi and grew up in foster care in East Carroll Parish. While still in foster care, she became pregnant at age 17. Because she had a spot on her lung requiring surgery, she was sent to New Orleans where she both delivered her child and had surgery on her lung. Her child, a son, was born on December 27, 1972, and was taken into the protective custody of the Monroe City Court in Ouachita Parish, as evidenced by an order granting temporary custody issued on January 10, 1973. In that order, the court placed the child in the custody of the Louisiana Department of Public Welfare (now DHHR), which in turn placed the boy in a foster home in the town of Tallu-lah in Madison Parish.

Appellant, after her release from the hospital, was placed in a foster home in New Orleans to recuperate more fully. She was released from foster care in 1974 at age 19, and found employment in New Orleans. Although she made occasional trips to see her son between 1974 and 1981, she apparently has had no contact with him since 1981.

On October 18, 1983, the state filed a petition of abandonment, and the matter was set for hearing in Monroe City Court on January 24, 1984. An attorney was appointed to represent the appellant, and the attorney was eventually able to locate and contact the appellant. The hearing was continued due to appellant’s inability to attend, and was later heard on February 14, 1984. Prior to the original hearing date, appellant filed an exception of improper venue which was denied. Appellant again raised this exception before the judge presiding over the February 14 hearing; the exception was again denied. The court ruled that appellant abandoned her child and she appealed.

Issue No. 1 — Venue

Appellant contends the city court judge erred in overruling a timely exception to improper venue because the record indicates that appellant lived in East Carroll Parish prior to 1972 and in Orleans Parish since 1972, and that her child lived in Madison Parish since shortly after his birth in 1972. DHHR contends that venue was proper because the city court had continuing jurisdiction from its original exercise of jurisdiction in January 1973.

LSA-R.S. 9:403 B. provides that an abandonment proceeding be initiated by an affidavit made before the judge or clerk of “the juvenile court having jurisdiction over the child....” In this case, the Monroe City Court sitting as a juvenile court had continuing jurisdiction over the child by virtue of the proceedings brought in that court in 1973 under former LSA-R.S. 13:1570 C., wherein the court awarded custody of the child to the Louisiana Department of Public Welfare on the petition and affidavit of a welfare case supervisor that the mother wished to relinquish custody for the purpose of enabling the child to receive adequate care. In spite of irregularities in the earlier proceeding, the court having exercised jurisdiction under the statute and the mother having acquiesced in the original temporary custody award for more than a decade, the court’s exclusive jurisdiction over the custody of the child continued and it is the proper court, or proper venue, for the subsequent abandonment proceeding. Medus v. Medus, 410 So.2d 1261 (La.App. 3d Cir.1982).

Issue No. 2 — Abandonment

The relevant statute for determining when a child should be considered abandoned in LSA-R.S. 9:403, which in pertinent part provides:

“A. A child shall be considered abandoned when clear and convincing evidence is introduced at a judicial proceeding to prove ...
“(l)(b) The parent or parents have failed to provide for the care and support of the child for a period of at least four months under circumstances showing an intention to permanently avoid parental responsibility.
“(2) The introduction of clear and convincing evidence which establishes the facts required by Subparagraphs (l)(a) or (l)(b) of this Subsection shall create a presumption that the parent or parents intended to permanently avoid parental responsibilities. The child shall be declared abandoned unless the parent or parents present evidence that rebuts the presumption. A parent adjudged to have abandoned his child under Subpara-graphs (l)(a) or (l)(b) shall thereafter have no right to object to or oppose any proceeding to adopt that child....”
“C. In the event the facts constituting abandonment are proved by clear and convincing evidence to the satisfaction of the court, the court shall decree the child to be an abandoned child and may place the child in the custody of an agency, a person or persons, or may make any other disposition of the child that is in the best interest of the child.”

This statute’s legislative history indicates that the present version of the statute, which was last amended in 1980, imposes a somewhat lighter burden upon the state than was imposed by the previous version. However, as we stated in State in Interest of T.M., 440 So.2d 951 (La.App. 2d Cir.1983):

“We continue to adhere to the basic principle that a decree of abandonment which irrevocably breaks one of the closest and most fundamental relationships must be predicated upon evidence of circumstances clearly manifesting the parent’s intention to permanently avoid parental responsibility.”

Despite our continuing adherence to this basic principle, we find the city court judge was not manifestly erroneous in declaring the child abandoned in the present case.

The mother admitted she had not seen her son since 1981; the record indicates their last visit was in September of that year. Thus, at the time of the abandonment proceedings, nearly two and one-half years had elapsed without the child’s seeing his mother. Over the prior eight years the mother had apparently averaged about one visit per year with her child. The mother further admitted she had not sent her son any birthday or Christmas presents. The record also contains a written agreement between the mother and the New Orleans Office of Human Development, signed by the mother on March 24, 1981. In this agreement, initiated by the state agency, the mother expressed a willingness to work over a one-month period toward the goal of regaining custody of her son by meeting weekly with a case worker, visiting her son on a regular basis, and paying some child support. After signing this agreement, the mother neither made support payments, nor met regularly with the case worker. The agency’s next reported contact with the mother was in December 1983 when another worker eventually succeeded in locating her by contacting her foster mother in East Carroll Parish. However, the mother apparently did contact the agency around September 1981, since her last visit with her child was probably set up through that agency.

Appellant testified that shortly after making the agreement mentioned above, she fell upon hard times. She claims she lost her son’s address in a fire, that on another occasion she was the victim of a flood, and that she found her income insufficient to make frequent trips to see her son. However, appellant admitted on cross-examination that she knew her foster mother and her son’s foster mother were friends, and that she never tried to get her son’s number by contacting her own foster mother. Her misfortunes and low income do not excuse her failure to contact her son for such a long period of time, or to send him even token gifts or support. Furthermore, the fact that she did so little to cooperate with the New Orleans agency with whom she made the written agreement, belies any real interest in actively pursuing a course of action to regain her son’s custody and assume parental responsibility. Neither money nor distance prevented her working with an agency in her own city.

The facts above distinguish the present case from those cases cited by appellant in which abandonment was not found. Perhaps the cited case most factually similar to the case at hand is In Interest of Shumaker, 341 So.2d 583 (La.App. 2d Cir.1977). In that case Mrs. Shumaker failed to see her daughter for nearly two years prior to an abandonment proceeding and had seemed to show little concern for her over the preceding 15 months. Like the mother in this case Mrs. Shumaker blamed her apparent lack of concern on various misfortunes. She testified that she lost her job and was unable to continue making weekly payments, that she was involved in litigation in another state trying to regain custody of two of her other children, that her present husband was out of work and they were financially unable to travel from Georgia to Shreveport to visit the daughter, and that the agency was uncooperative and did not want her to get her daughter back. In contrast, the mother in the present case never attempted to make any payments to support her son, even though she had been able to find employment. She testified that she was employed at a restaurant for the nine months prior to the hearing, and that she was clearing about $120 per week. She admitted that she could have afforded to send Christmas presents to her child, but did not do so. She also testified on direct that she felt the welfare and DHHR workers had cooperated with her in trying to get her child back, although she felt they could have helped her secure low-income housing. These facts indicate appellant’s circumstances were not as difficult as those confronting the mother in Shumaker. Furthermore, both the period of time in which the mother failed to visit with her child, and the period of time in which the mother failed to contact the state agency were longer in the present case. The latter time period was approximately a year longer, and ended only because contact was initiated by the state agency.

The other cases cited by appellant provide even less support for her position. The facts of State in Interest of Canady, 430 So.2d 265 (La.App. 5th Cir.1983) differ significantly from the present situation, since there the court found Mr. Canady had made repeated efforts to gain visitation rights with his children, but was thwarted at every step, while Mrs. Canady, although not contacting the state agency for a substantial period of time, had intended placement of her child to be temporary and was desperately trying to get her life in order so that she would be a suitable mother for her children. In the case of In Interest of Jackson, 312 So.2d 912 (La.App. 4th Cir. 1975), the father who lived in Georgia had not seen his son for nearly three years. However, the mother, who had custody of the boy, refused to let the son visit with the father in Georgia. The father also stated that he was intimidated by the mother’s threats of arrest if he came to Louisiana, and that the mother would not even let him talk to the child on the telephone. Furthermore, the father did make support payments, although only in response to the mother’s court actions for failure to support. Similarly distinguishable are the factual situations in the other two cases cited by appellant, In Re State in Interest of Fischbein, 194 So.2d 388 (La.App. 4th Cir.1967) and In Re State ex rel. Sharpe, 219 So.2d 317 (La.App. 1st Cir.1969). In Fischbein, the mother manifested interest and concern, and made an effort within her means to support her children; in Sharpe the father failed to support or visit his children over a six-month period, but not a period exceeding two years as in the present case. Thus, all the cases cited by appellant are distinguishable on their facts and are not controlling in the case at hand.

Nevertheless, the cited cases as well as the other jurisprudence involving abandonment proceedings, indicate several factors useful in determining whether a parent has shown an intention to permanently avoid parental responsibility. In making such a determination the court should examine:

(1) The nature and extent of contacts between parent and child, including any mitigating circumstances;
(2) The frequency and amount of support payments, also considering any mitigating circumstances; and
(3) The extent to which a parent, who has relinquished custody, has pursued a course of action to regain custody, including any legal action or any cooperation with a state agency.

Of course, none of the three factors listed above, standing alone, is determinative of parental responsibility. A court must necessarily examine each case individually and make a determination based on the totality of the circumstances involved in that case. Nevertheless, in this case the extremely sparse contacts between parent and child, the lack of any monetary support by the mother when able to provide it, and the small amount of interest shown by the mother in forming or pursuing a plan for regaining custody are all factors which, taken as a whole, indicate the mother’s intent to permanently avoid parental responsibility. Although the mother has opposed the child’s adoption, and has expressed a desire to someday regain the child’s custody, parental responsibilities are not fulfilled by merely expressing concern or having good intentions.

Decree

For the reasons expressed above, the judgment of the juvenile court finding the child abandoned under LSA-R.S. 9:403 is affirmed.

Affirmed.


text:
    SUCCESSION OF Annie Lee Johnson ADGER.
    Nos. 16446-CA, 16447-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    Gamm, Greenberg & Kaplan by Jack H. Kaplan, Shreveport, for plaintiffs-appel-lees, Andrew Johnson, Emanuel Johnson, Antra B. Johnson, Janice Givens Individually and as Tutrix of the minor Lytishia Givens.
    Jimmie L. Moss, Baton Rouge, for defendants-appellees, Clark H. Morgan, Jr. and Shirley M. Marcus.
    Johnson, Ritzie, Taylor & Thomas by Ernest L. Johnson, Baton Rouge, for petitioner-appellant and intervenor-appellant, Douglas Adger.
    Before HALL, MARVIN and NORRIS, JJ.
   NORRIS, Judge.

In this succession proceeding, intervenor Douglas Adger, adjudged to be the good faith putative spouse of the deceased, Annie Lee Johnson Adger, appeals that portion of a judgment declaring certain property to be the separate property of the deceased. We affirm.

Annie Lee Johnson Adger died in Caddo Parish on May 24, 1982. On April 16, 1938, the deceased married Willie Kinchen, from whom she was not divorced until January 21, 1970. However, on December 9, 1946, she participated in a marriage ceremony in Ohio with Douglas Adger. Adger had no knowledge of this prior marriage until after the death of the deceased. The de-' ceased and Adger established a domicile in Chicago where they continued to live until they separated physically in 1948. In 1949, the deceased moved to Shreveport to care for her ill mother and never returned to live with Adger in Illinois. Adger continued to reside in Chicago until 1955, when he established a domicile in Baton Rouge, Louisiana, where he has remained.

After the death of the deceased, collateral heirs and legatees of the deceased filed a petition to open her succession and to probate a purported olographic will. At that time, Andrew Johnson was appointed administrator of her succession and a notary public was appointed to make an inventory of the succession property. Other collateral heirs filed an opposition to the probate alleging the invalidity of the will presented for probate because of its failure to meet the requisite formal requirements. This opposition was heard and taken under advisement by the trial court.

.In a separate proceeding, which has since been consolidated with this proceeding by stipulation of counsel, Adger filed an ex parte petition and secured an ex parte judgment recognizing him as the surviving spouse of the deceased and owner of the community property comprising the succession.

Thereafter, certain of the collateral heirs filed a rule in this proceeding to declare that ex parte judgment of possession to be null and void. Adger intervened in this proceeding alleging that he had formerly obtained a judgment of possession and opposing the probate of the will.

Although the matter of the validity of the will had not yet been decided by another division of the same district court, another trial judge upon stipulation of the parties agreed to hear all of the remaining issues raised by the parties simultaneously. After hearing all of the evidence, the trial court rendered judgment declaring (1) Adger to be the surviving putative spouse of the deceased and entitled to his rights as such; (2) that all assets listed in the succession were the separate property of the deceased and formed no part of the community of acquets and gains existing between appellant and deceased; and (3) recalling and setting aside the judgment in the ex parte succession proceeding instituted by Adger.

Only Adger appeals from that judgment assigning as his sole error:

Whether the Honorable Court erred in ruling that the property purchased by Annie Lee Johnson Adger, which did not contain a double declaration, was separate property?

The trial court found as a matter of fact that Adger had no knowledge of the deceased’s marriage to Willie Kinchen prior to her death. Therefore, the trial court concluded that Adger was the good faith putative spouse of the deceased. This finding of fact is not seriously disputed in this appeal. Furthermore, the issue of good faith is a question of fact which must be determined by the trial judge whose findings in this regard are entitled to great weight. Galbraith v. Galbraith, 396 So.2d 1364 (La.App. 2d Cir.1981). When a spouse contracts a marriage in good faith, that marriage produces all of the legal effects of a valid marriage in favor of the good faith spouse which continue until marriage was declared a nullity or at least until good faith ceases. La.Civ.Code Arts. 117 and 118; Lee v. Hunt, 483 F.Supp. 826 (W.D. La.1979) affirmed 631 F.2d 1171 (5th Cir.1980), cert. denied, 454 U.S. 834, 102 S.Ct. 133, 71 L.Ed.2d 118 (1981); Ray v. Knox, 164 La. 193, 113 So. 814 (1927); Succession of Choyce, 183 So.2d 457 (La.App. 2d Cir.1966). But see, Cortes v. Fleming, 307 So.2d 611 (La.1973); Smith v. Smith, 43 La.Ann. 1140, 10 So. 248 (1891). One of the civil effects which flows to such a good faith spouse is that of the benefits of the community of acquets and gains. Jones v. Squire, 137 La. 883, 69 So. 733 (1915).

All of the property purchased by the deceased was acquired after the parties ceased living together in Chicago. The deceased first purchased two parcels of immovable property in 1954 and thereafter purchased an additional parcel in 1970.

At trial, Adger attempted to prove that he and the deceased had never actually separated but that they had maintained a “marital relationship,” albeit many miles apart and even though he admittedly had-requested a divorce on several occasions. It was Adger’s contention that when he was in or enroute through Shreveport he would stay in the home of the deceased. Although he indicated that the parties engaged in marital relations on these occasions at least until 1952 or 1959, his testimony is at best vague, indefinite and confusing in this regard. He did testify that when he stayed or visited in the home of the deceased he had his own room. He further testified that he had contributed to the support of the deceased during this period. It was his testimony that because she refused to take any money directly from him, it was his practice to leave sums of money in cash under a pillow on the bed or on the coffee table. He later described these gifts as being “donations” with “no strings attached” for her use as she saw fit. He admits that he has no corroborating evidence to support this testimony and further admits that they never shared their earnings or had a joint bank account after they physically separated in Chicago. Furthermore, he admitted he has lived with another woman in Baton Rouge since 1959, considers her his “wife” and they have acquired property.

There is testimony from relatives of the deceased that she and Adger never lived together in Shreveport or in Baton Rouge and that Adger only occasionally visited in her home during the years of their separation prior to her death. There is additional uncontradicted testimony that the deceased was gainfully employed as a beautician, insurance salesman and by a convalesant home, and supported herself after the parties separated. One of deceased’s brothers testified that he had given the deceased money for her to use in purchasing and making repairs to one piece of the property in dispute.

The trial court found that a marriage ceremony had taken place between Douglas Adger and the deceased in Ohio and that neither party secured a divorce although they had lived separate and apart since their physical separation in 1952, when she came to Caddo Parish and he remained in Chicago. It was further found that although Adger did visit the deceased occasionally that the parties had never reconciled. Therefore, it was concluded that all of the assets in the succession were purchased after the parties were physically separated, that both had always worked, that both had kept their finances separate and that both had separate incomes. The testimony of Adger that he had left money for the deceased was rejected as being not sufficiently established.

On appeal, Adger argues that the purchase of property by married persons is presumed conclusively to be community unless the act of sale contains a double declaration reciting that the property is to be separate property. Appellant misstates the law. The jurisprudence interpreting now-repealed La.Civ.Code Arts. 2334 and 2402 has established that as to immovable property conveyed to the husband for a cash consideration during marriage, there is an irrebuttable presumption that it is community property unless there is contained in the act of acquisition the double declaration that the property was acquired with funds belonging to the husband separately, and that it was acquired for his individual estate. However, this irrebutta-ble presumption, where the double declaration is absent, has never been applied to immovable property purchased by the wife during the marriage. She could always assert and prove that the purchase was made with separate funds at any time. Wood v. Wood, 424 So.2d 1143 (La.App. 1st Cir.1982); Phillips v. Nereaux, 357 So.2d 813 (La.App. 3d Cir.1978); Barnett v. Barnett, 339 So.2d 495 (La.App. 2d Cir.1976), writ denied 341 So.2d 1127 (La.1977). Further, appellant’s argument ignores the changes in the law regarding matrimonial regimes by Act No. 709 of the 1979 Louisiana Legislature, effective January 1, 1980. As enacted therein, La.Civ.Code Art. 2340 eliminates the double declaration requirement and this provision is to be applied retroactively. See Wood v. Wood, supra. Accordingly, this argument is meritless.

Adger finally argues in effect that the evidence was not sufficient to support the trial court’s determination that the property was separate, rather than community.

It may be proved that although property is purchased during the existence of a community of acquets and gains it is the separate property of either spouse. See La.Civ.Code Art. 2340. This opportunity of proof was available to the wife, prior to the adoption of Art. 2340. See Succession of Joseph, 180 So.2d 862 (La.App. 3d Cir. 1965). The burden of overcoming the presumption of the community nature of property acquired during the marriage rests upon the party asserting its separate and paraphernal nature; to satisfy this burden the proof must be clear, positive and legally certain. Succession of Joseph, supra. The status of property as community or separate is fixed at the time of its acquisition. Whatley v. Whatley, 439 So.2d 444 (La.App. 2d Cir.1983). No provisions of the recently enacted community property regimes law can apply retroactively to change the classification of property as community or separate. Wood v. Wood, supra. La.Civ.Code Art. 2334, in effect at the time that the property was acquired, provided that the earnings of the wife while living separate and apart from her husband although not separated by a court judgment, are her separate property, and the property purchased with all funds thus derived were the separate property of the wife. See Succession of Smith, 247 La. 921, 175 So.2d 269 (1965); Succession of Joseph, supra.

Based upon the evidence presented, the trial court concluded that the property in question was purchased with the separate funds of the deceased while she was living separate and apart from Adger without reconciliation. Despite appellant’s contentions, the evidence does successfully negative by clear and convincing proof any other source of the funds used to acquire the 1954 and 1970 properties other than Annie’s separate earnings while living separate and apart from appellant. It is un-contradicted that deceased worked after her return to Shreveport in 1949, sometimes at two jobs; the evidence is overwhelming that she lived separate and apart from appellant since that time; and the trial court certainly did not abuse its discretion in finding unreliable appellant’s almost incredible testimony about leaving money under the pillow and on the coffee table on various occasions.

The factual findings of the trial judge are supported by the record and are not clearly erroneous, particularly since they are primarily based on the trial judge’s credibility evaluation of the witnesses which is entitled to great weight upon appeal.

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

JUDGMENT AFFIRMED.

      .Andrew Johnson (the deceased’s brother); Emmanuel Johnson (the deceased’s brother); Antra B. Johnson (the deceased's sister) and Janice Givens, individually and as tutor of the minor Lytishia Givens (the deceased’s niece).

      . Clark H. Morgan and Shirley M. Marcus (the nephew and niece of the deceased).

      . The will was subsequently declared to be invalid and that issue is not involved in this appeal.

      . The first deed of acquisition is dated March 29, 1954, shows a cash consideration of $800 and describes deceased as Annie L. Johnson, a single woman; the second deed is also a cash deed, dated July 29, 1954, shows a cash consideration of $400 and describes deceased-vendee as "Annie Lee Johnson, wife of Douglas Adger ... who declared that she is purchasing said property with her separate and paraphernal funds and in her maiden name ...”

      . This lol was purchased by cash deed dated February 4, 1970, for a cash consideration of $3,300 and described deceased as a single woman. This purchase would have been after she obtained a judgment of divorce from Willie Kin-chen, which judgment was dated January 21, 1970.

      . The testimony from Adger in the record is that the parties actually separated prior to the time that she returned to Louisiana in 1949; however, this discrepancy is not material to the result in this opinion.