text:
    Sam L. SMART, et al., Plaintiff-Appellee, v. Homer WOODARD, et al., Defendant-Appellant.
    No. 15813-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.

      Campbell, Campbell & Johnson by John T. Campbell & John C. Campbell, Minden, and Gold, Little, Simon, Weems & Bruser by Herbert J. Mang, Jr., Alexandria, for plaintiff-appellee.
    Hudson, Potts & Bernstein by B. Roy Liuzza, Monroe, and McKeithen, Wear & Burns by Russell Woodard, Columbia, for defendant-appellant.
    Before PRICE, HALL and NORRIS, JJ.
   NORRIS, Judge.

In this quo warranto, mandamus and injunction proceeding the First National Bank of Arcadia (hereinafter referred to as the “Bank”), Homer Woodard, and Herschel Kyle appeal a judgment nullifying an election of directors and officers and granting additional relief related to actions taken at the 1983 shareholders’ meeting.

The pivotal issue presented in this appeal is whether a shareholder who has sold stock in a bank but in whose name it remains registered on the bank’s records with the knowledge and consent of the purchasers who have pledged that stock to the seller in connection with the sale has a legal right to vote that stock? Finding that the shareholder of record does have the right to vote the stock under the particular facts presented in this appeal, we reverse.

During the Fall of 1981, Homer Woodard was the owner of 27,615 shares of stock in the First National Bank of Arcadia, which comprised more than 50% of the 54,080 outstanding shares and decided to sell his majority interest. Herschel Kyle, an officer/director of the Bank who was Woodard’s cousin formed a group composed of Sam Smart, Mack Waits, William Ingram and himself, to purchase the stock at $80.32 per share. The group’s intention was to retain control of the Bank in the community by selling the greatest portion of the stock to local citizens other than members of their group. Accordingly, the 27,615 shares of stock were distributed as follows: Persons outside of the group purchased 7,615 shares which were transferred directly from Woodard. An additional 10,000 shares were distributed among the members of the group proportionately in the amounts of 2500 shares each and were transferred to each member accordingly. These shares of stock were pledged to the First National Bank of Commerce to secure the loan for the purchase price paid to Woodard. The remaining 10,000 shares which form the basis of this proceeding were also sold to the four members of the group for $823,000. Two days prior to and in contemplation of the sale, the Bank was instructed to reissue ten certificates in Woodard’s name, each certificate representing 1000 shares. These stock certificates were pledged to Woodard to secure the debt in an “Act of Pledge of Stock”. The debt is evidenced by four notes each in the amount of $205,800, executed by a member of the group and endorsed by the remaining members. While the pledge agreement is silent regarding dividends, voting rights or other shareholders’ rights, the agreement contains a release and substitution of collateral clause to effectuate the parties’ intention to sell these shares to persons outside of the group at a later time. Each of the parties to the transaction admittedly knew that this particular stock was registered in the name of Homer Woodard and obviously desired that it remain so registered on the Bank’s records in order to facilitate the contemplated sale of this stock to others and to avoid the parties’ being in violation of Federal law regulating the transfer of control of a national bank. Neither the pledge agreement or any other writing evidencing this transaction or any agreement incidental thereto was ever filed with the Bank or in any other manner entered into its official records.

The record reveals that in January, 1982, these 10,000 shares were voted as a block by Woodard in accordance with the wishes of the four members of the group. All four members of the group were in agreement and were elected directors of the bank at that meeting. However, at some point thereafter, a disagreement arose among the directors concerning the proper management of the Bank. Smart and Waits became aligned as did Kyle and Ingram on the adverse side. Sensing a showdown at the January, 1983 shareholders’ meeting, the parties began purchasing stock and securing proxies. Smart frankly admitted that in connection with the stock which he purchased he secured proxies from the vendors in order to be able to vote that stock at the 1983 annual meeting because the stock would still be registered on the Bank’s books in the name of his vendors.

At the January, 1983 meeting, the 10,000 shares which remained registered in the name of Woodard were crucial to the outcome of the parties’ dispute. At the meeting, Woodard admittedly was aligned with the Kyle/Ingram faction and voted the 10,-000 shares accordingly over the objection of Smart and Waits who directed that he vote 5000 shares for the election of Smart as chairman of the meeting, for the motion to increase the size of the Board of Directors and for the eight persons nominated for the Board by a supporter of the Smart/Waits group. Five members of the Board were then elected, the majority of which favored the position adverse to Smart and Waits.

Thereafter this suit was instituted by Sam L. Smart and Richard Mary, another shareholder, against the members of the newly elected Board and the Bank seeking the following relief:

(1) to have all individual defendants who are members of the board of directors elected at the January 31, 1983 meeting declared to have been illegally elected as officers and directors of the Bank and without title to the office to which they were allegedly elected at the shareholders’ meeting;
(2) to perpetuate the writs of quo war-ranto and mandamus previously issued;
(3) to enjoin temporarily and permanently the defendants from acting as officers or directors of the Bank pursuant to any actions of the shareholders’ meeting held on January 31, 1983;
(4) to reinstate the officers and directors elected prior to January 31,1983, to serve until their successors are validly and legally elected; and
(5) to declare Homer Woodard to be without authority to vote that portion of the pledged shares owned by any pledgor without the express consent of the respective pledgor.

Only defendants Woodard, Kyle, Hood and the Bank answered the petition. In connection therewith, an exception of no cause of action was filed and overruled by the trial court. After trial in written reasons for judgment, the trial court concluded that Smart and Waits were in fact the actual owners of 5000 shares of the stock made the subject of this dispute in the proportion of 2500 shares each and interpreted La.R.S. 12:79 as finding that the actual owner rather than the registered owner must be recognized by the Bank as entitled to vote his respective shares absent by-laws to the contrary or some significant corporate interest. Therefore, it was held that Smart and Waits were entitled to vote their shares at the January 31, 1983 meeting; that Woodard had no right to vote these shares; and that all officers and board members elected at that meeting were illegally elected and have no title to those offices. Consequently, judgment was signed:

(1) declaring the proceedings of the January 31,1983 meeting to be null and void;
(2) declaring Kyle, Woodard, Hood, Waits and Madden to have been illegally elected to the offices of directors of the Bank and excluding them from holding these offices;
(3) enjoining these parties from serving in this capacity;
(4) mandamusing Kyle, as President and Chief Executive Officer of the Bank, to call a meeting of the shareholders not less than 15 nor more than 60 days from the date that judgment becomes final for the purpose of electing officers and directors of the Bank to serve until the regular 1984 shareholders’ meeting;
(5) reinstating the directors elected at the 1982 meeting until their successors can be elected;
(6) adjudicating Kyle, Waits, Smart and Ingram to be owners of the 10,000 shares of stock in the proportions of one-fourth each subject to Woodard’s pledge;
(7) directing that these parties shall have the right to vote 2500 shares of stock each at the special shareholders’ meeting to be called; and
(8) declaring the instrument dated November 11, 1981, to be an act of pledge and Woodard, as pledgee, to be without the right to vote the pledged stock without first acquiring its ownership.

It is from this judgment that this appeal is taken by- Woodard, Kyle and the Bank who argue that the trial court erred in:

(1) overruling the exception of no cause of action;
(2) holding that the four pledgors had the right to vote 2500 shares of pledged stock each; and
(3) holding that Woodard did not have the right to vote the stock.

Because we have determined that the trial court erred as a matter of law in its holding, we pretermit discussion of the first assignment of error and proceed to a discussion of the merits of the case.

Both sides to this controversy have thoroughly argued orally and in brief their positions which are based on the applicability of the corporate laws of this state to the controversy at issue. While we have noted on our own motion that the bank in question is a national bank created under the laws of the United States, we have been cited nothing and have found nothing in the Federal Banking laws which we feel to be controlling of the issue in question. We recognize the overriding principle that any state law limiting or lessening the right and power granted a national bank by the laws of the United States cannot have any effect and would not be binding on a national bank. However, we also recognize the rule to the contrary that if greater rights are extended to national banks by a state law, than are specifically granted by the laws of the United States and are not in conflict with the powers granted by the United States government, the national bank may be governed thereby. The United States laws governing national banks do not insofar as we have been able to find, prohibit a national bank from defining a shareholder as the holder of record of one or more shares in the corporation; from recognizing a person registered on its records as the owner of shares, as the owner in fact thereof for all purposes, and as the person exclusively entitled to have and to exercise all rights and privileges incident thereto, including the exercise of the right to vote; or from recognizing the pledgee in whose name the pledged shares are registered as the person entitled to vote those shares. Thus, the principles contained within La. R.S. 12:1(R); 79 and 75(D) do not abridge, limit nor do they in fact conflict with any provision of the United States laws affecting national banks, and thus, these provisions have effect to such banks. See First National Bank of Vicksburg v. Drexler, 184 So. 607 (La.App. 2d Cir.1938, writ denied 1938).

Therefore, we shall proceed to consider the issue in light of the applicable provisions of Louisiana law.

A “shareholder” is defined as the holder of record of one or more shares in the corporation. La.R.S. 12:1(R). La.R.S. 12:79 provides:

Except as otherwise provided in the articles or by-laws, a corporation, and its directors, officers and agents, may recognize and treat a person registered on its records as the owner of shares, as the owner in fact thereof for all purposes, and as the person exclusively entitled to have and to exercise all rights and privileges incident to the ownership of such shares; and rights under this section shall not be affected by any actual or constructive notice which the corporation, or any of its directors, officers or agents, may have to the contrary.

Additionally, La.R.S. 12:75(D) provides:

D. A person whose shares are pledged shall be entitled to vote thereon unless and until such shares have been transferred on the books of the corporation to the pledgee; and thereafter the pledgee shall be entitled to vote thereon.

While we have been unable to find any Louisiana cases which precisely deal with the particular factual situation with which we are faced, we have found cases which are instructive and dispositive of the pivotal issue contained herein.

In Redemer v. Hollis, 347 So.2d 48 (La.App. 2d Cir.1977), plaintiff contended that he was the owner of 5% interest in the stock of an equipment manufacturing corporation and filed a mandamus action to compel the corporation and its president to issue him stock reflecting his ownership interest and to allow him to inspect the corporate business records. The trial court found plaintiff to be a shareholder and entitled to have stock certificates issued in his name and to exercise the rights of a shareholder. This Court amended the judgment of the trial court stating:

A corporation is allowed to rely entirely on its records in determining entitlement to access to financial information. LSA-R.S. 12:79 provides:
Except as otherwise provided in the articles or by-laws, a corporation and its directors, officers, and agents, may recognize and treat a person registered on its records as the owner of shares, as the owner in fact thereof for all purposes, and as the person exclusively entitled to have and to exercise all rights and privileges incident to the ownership of such shares; and rights under this section shall not be affected by any actual or constructive notice which the corporation, or any of its directors, officers or agents, may have to the contrary.
Plaintiff is not registered on the corporation’s records as the owner of shares. He must compel the corporation to list him as a shareholder prior to exercise of the rights given to shareholders of record.

In Pollock v. Pollock Engineering Co., 365 So.2d 1186 (La.App. 3d Cir.1978), a former wife sought a writ of mandamus ordering the corporation and its officers to cancel a stock certificate for eighty shares in the name of her former husband and issue a new certificate for 40 shares in her name. The 80 shares had been formerly owned by the community of acquets and gains previously existing between the parties. The court recognized that Mrs. Pollock was the owner of one-half of the 80 shares of stock but refused to order the corporation to transfer the 40 shares of stock to her stating:

However, we find the trial judge erred in ordering the corporation and its officers to recognize Betty Pollock as owner of an undivided interest in the 80 shares of stock issued solely in her ex-husband’s name and to afford to her all of the privileges of a stockholder. Under the. specific language of the Louisiana Corporation Code, a corporation and its officers are bound to recognize as legal owner only the person in whose name a certificate representing shares of stock is issued. Neither the corporation nor its officers is liable to “any one claiming any interest in, or ownership of, said shares, or any part thereof, by virtue of an undisclosed or latent legal or conventional title or interest therein.” LSA-R.S. 12:601. Additionally, the Corporation Code provides that only shareholders of record on the books of the corporation are entitled to receive dividends, to vote at meetings, or to exercise subscription rights. LSA-R.S. 12:75 and 12:77. Under these provisions, Betty Bickers Pollock is not entitled to any rights of a shareholder.

In the instant case, the uncontro-verted facts reveal that the certificates evidencing the 10,000 shares of stock which Woodard voted were intentionally issued and registered in his name with the knowledge and consent of all parties involved. Clearly, the purpose for this was to keep all of the parties to the transaction from being in violation of Federal law regulating acquisition of controlling interest in a national bank. Furthermore, the stock was pledged to Woodard by all of its purchasers with the knowledge that it was registered in Woodard’s name on the Bank’s records. The pledge agreement was silent on the question of voting rights. In reality, all parties concede that Woodard had the right to vote the stock standing in his name; however, it is argued that Smart and Waits had the right to direct the voting of this stock by virtue of an oral agreement that Woodard would vote the stock according to their pro-rata shares and their direction. Thus, in effect what is being attempted through this quo warranto, mandamus and injunction proceeding it to recognize the validity of and enforce an oral agreement between four shareholders and Woodard as to how stock registered in the name of Woodard should be voted and to compel the Bank to recognize and implement the agreement which was admittedly disputed.

The corporation laws of this state are designed to set forth certain rules and procedures so that corporations can act and conduct business in spite of ongoing controversies that might exist between shareholders. Any verbal agreement between Woodard and the purchasers as to the voting of this stock is a private contractual matter between the parties and not binding on the Bank, its officers or directors in conducting Bank business. Applying the proper principles of corporate law to this factual situation, we conclude that the corporation bank was legally entitled to recognize Woodard as the shareholder and/or pledgee of record as reflected by the Bank’s books and as such, the person legally entitled to vote the stock at the shareholders’ meeting on January 31, 1983. Consequently, because the Bank was entitled to recognize Woodard as having the right to vote the shares without restriction, the action taken at that meeting was legal because the shares in question were voted in accordance with law. Accordingly, the ruling of the trial court decreeing the election to be invalid was manifestly erroneous.

Because the function of the writ of quo warranto is narrow and its scope is limited to determining by what authority a person is holding office in a corporation, once a determination is made that a person holds office by virtue of a valid election, the inquiry ceases and the writ should be dismissed. See La.C.C.P. Art. 3901; Foreman v. Hines, 314 So.2d 460 (La.App. 4th Cir.1975).

Because any agreement which the parties may have entered into regarding how Woodard was to vote the stock is a private, contractual matter between the purchasers and Woodard, it is a matter for ordinary litigation and is not properly the subject of a quo warranto or mandamus action. See State v. United Gas Public Service Co., 197 La. 616, 2 So.2d 41 (1941); State ex rel. Arbour v. Board of Managers of Presbyterian Hospital of New Orleans, 131 La. 163, 59 So. 108 (1912). While relief may be obtained against Woodard for breach of contract or to enforce the agreement in question, it may not be obtained in this proceeding.

Because we have found that the election held at the January 31, 1983 meeting was valid we conclude that the writs of quo warranto and mandamus should have been dismissed and the other relief sought in this action should have been denied. Accordingly, the judgment of the trial court is reversed in its entirety. Judgment is rendered recalling and vacating the writs of quo warranto and mandamus and the injunction issued by the trial court and dismissing the claims of plaintiffs at their cost.

JUDGMENT REVERSED AND RENDERED.

      . The newly elected Board members are:
      (1) Homer Woodard
      (2) Herschel Kyle
      (3) M.L. Hood
      (4) Mack Waits
      (5) R.H. Madden, III

      . La.C.C.P. Art. 3901 provides:
      Quo warranto is a writ directing an individual to show by what authority he claims or holds public office, or office in a corporation, or direefing a corporation to show by what authority it exercises certain powers. Its purpose is to prevent usurpation of office or of powers.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Robert HOWARD, et ux., Plaintiffs-Appellants, v. COMMERCIAL UNION INSURANCE COMPANY, Defendant-Appellee.
    No. 15814-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.

      Robert E. Shadion, Ruston, for plaintiffs-appellants.
    McLeod, Swearingen, Yerlander & Dollar by Elmer G. Noah, II, Monroe, for defendant-appellee.
    Before HALL, JASPER E. JONES and FRED W. JONES, JR., JJ.
   HALL, Judge.

The plaintiffs seek to recover from their homeowners insurer for structural damage to a house they formerly owned resulting from various shiftings and movements of the soil underlying the foundation, which, in turn, resulted from leakage or seepage from a damaged water pipe beneath the foundation. The trial court held this damage was not covered by the insurance policy and rejected plaintiffs’ demand at their costs. The plaintiffs have appealed and we affirm the trial court’ judgment.

On July 31, 1979, the plaintiffs filed this suit alleging that their residence had sustained certain structural damage which was noticed by the plaintiffs on or about July 81,1978. It was alleged that the structural damage involved in this case consisted of severe cracking of the foundation and brick veneer walls of the house. The interior sheetrock walls of the residence also experienced cracking and the doors of the residence ceased to open and close properly. It was further alleged in plaintiffs’ petition that the damage at issue was caused by leaking water and was covered under the plaintiffs’ homeowners insurance policy.

The defendant answered plaintiffs’ petition, averring that the plaintiffs’ claim had prescribed because suit was not filed within one year of the inception of the loss as required by the policy and that the loss the plaintiffs suffered was expressly excluded by the terms of the policy.

Sometime during the early spring of 1978 a leak developed in a water pipe beneath the plaintiffs’ foundation. The plaintiffs first noticed that water was seeping or leaking out from under their house sometime during the early part of March 1978. Shortly thereafter, sometime prior to March 27, 1978, the plaintiffs had a plumber come out to their house on two separate occasions in attempts to correct the leak. The second attempt, which was a rerouting of a hot water line, succeeded in stopping the leak. This successful attempt occurred approximately one to three weeks after the rerouting of a cold water pipe failed to eliminate the problem.

Following the correction of the water leak in March, sometime in May or June 1978, the plaintiffs first noticed the structural cracking complained of. By letter dated July 31, 1978, the plaintiffs notified their insurer that they wished to file a claim for this damage. On August 29,1978, the civil engineer who offered expert testimony in this case examined, at defendant’s request, the exterior walls and foundation of the plaintiffs’ residence in an attempt to determine the cause of the cracking being experienced. He determined that the damage was directly related to water leakage or seepage which went uncorrected for an extended time period. The plaintiffs testified that the cracking subsided approximately one or two months after the engineer’s inspection, sometime in September or October 1978. Based on the engineer’s report, the defendant insurer, Commercial Union, denied coverage for the loss by letter dated January 30, 1979. Plaintiffs then filed suit on July 31, 1979. At the time of trial, the parties stipulated that the damage to the plaintiffs’ former residence amounted to $9,745.

The trial court found that “the damages were caused by the sinking, rising or shifting of the earth as a result of its soaking up of the water from the ruptured pipe, as well as water below the surface exerting pressure on or flowing, seeping or leaking under the foundation from the ruptured water pipe.” The trial court also found that specific exclusionary language in the policy applied to this situation and held that no coverage existed. The trial court expressed no opinion on the prescription issue.

On appeal, Commercial Union again urges that the plaintiffs’ claim is barred by prescription or, alternatively, is excluded from coverage under the terms of the policy. We agree with the latter contention and, consequently, pretermit discussion of the prescription issue.

The insurance policy insures against certain specific perils and losses. There are two sections of the policy which arguably would provide coverage for the loss incurred by the plaintiffs in this case.

One of the perils insured against by the policy in question is damage resulting directly from the “[c]ollapse of buildings or any part thereof.” However, the policy specifically excludes from the definition of a collapse "... settling, cracking, shrinkage, bulging or expansion.” The expert testimony in this case establishes that the plaintiffs’ damage resulted from the expansion, shrinkage and shifting of the clay soil underlying the concrete foundation of their former residence, which caused the house to settle and resulted in the cracking of the walls and foundation complained of. Furthermore, the expert testimony excludes with reasonable certainty the likelihood that the damage suffered arose in any manner other than that described above. Consequently, we conclude that the insurer met its burden of proving that the limited coverage provided for damage resulting directly from the collapse of a building as defined by the policy does not encompass this damage. See Samuel v. Sewerage & Water Board of New Orleans, 181 So.2d 243 (La. App. 4th Cir.1965), writ refused 248 La. 1029, 183 So.2d 651 (1966).

The homeowners policy here involved also provides limited coverage for loss occasioned by “[ajccidental discharge or overflow of water ... from within a plumbing . .. system.” However, the policy specifically excludes loss “to the building caused by continuous or repeated seepage or leakage over a period of weeks, months or years.... ” Since the evidence establishes that the damage at issue was caused by prolonged continuous leakage or seepage, we agree with the trial court’s determination that this provision of the policy does not afford the plaintiffs coverage.

It was the opinion of the civil engineer who offered expert testimony in this case that the damage sustained by the plaintiffs’ former residence was directly attributable to leakage or seepage from a water pipe beneath the plaintiffs’ foundation. Furthermore, he opined that the leakage or seepage was continuous in nature and went uncorrected for an extended period of time, several months. The Howards acknowledged the existence of the water leak but contended that it was promptly corrected. However, the expert’s analysis of the on-site, physical indications of the manner in which the water leak acted upon the soil underlying the house is logically sound and convinces us that the leak in fact went uncorrected over a sufficiently long time frame to fall within the policy’s exclusionary language.

During his inspection, the expert discovered a wide, flat depression adjacent to the west wall of the house. This depression extended outward from the wall for several feet and was approximately three to four feet in width. Within this depressed area, there was a space between the concrete foundation and the underlying soil of approximately one to three inches. The evidence establishes that this depression was caused by water from the damaged pipe passing from beneath the foundation once the soil beneath the slab had become saturated. The expert testified that the wide, flat shape of the depression indicated that water had been slowly and continuously passing from beneath the house for an extended time period. Had the water forced its way from beneath the slab quickly and the leak existed for a much shorter time period, the expert testified, then a more angular trench-like depression would have been found at the point of its exit. Consequently, he concluded, as do we, that the water leakage or seepage involved in this case occurred continuously over an extended time period. The loss resulting from such seepage or leakage is specifically excluded by the terms of the policy.

This damage was the result of the settling of the house after the water which had saturated the clay soil beneath its foundation was no longer present. This water came from a damaged pipe beneath the foundation which slowly leaked or seeped for an extended period of time, more likely than not several months. Since the damage resulted from continuous leakage or seepage over an extended period of time, this damage is not covered by the plaintiffs’ homeowners policy.

The plaintiffs’ argument for coverage places great reliance upon our recent decision of Primm v. State Farm Fire & Cas. Co., 426 So.2d 356 (La.App. 2d Cir.1983), which we find readily distinguishable from the case presently before us. In Primm we found that the insurer had, by coupling the phrases “leakage or seepage” and “sudden and accidental” together, created a definitional ambiguity in the policy’s language which had to be construed against it, and we held coverage existed. The policy presently before us provides coverage for “.. . [accidental discharge or overflow of water ... from within a plumbing ... system ...” but specifically excludes loss “.. . caused by continuous or repeated seepage or leakage over a period of weeks, months or years.... ” The limitation on coverage utilized by the insurer in this case, as opposed to the ambiguous extension of coverage utilized in Primm, creates no ambiguity with respect to coverage and clearly excludes the loss suffered by these plaintiffs.

For the reasons assigned, the judgment of the trial court rejecting plaintiffs’ demand at their costs is affirmed. All costs of this appeal are assessed against the plaintiffs-appellants, Robert Howard and Floy Duke Howard.

Affirmed.


author: FRED W. JONES, Jr., Judge.

text:
    Eva J. Wise SHERMAN, Plaintiff/Defendant in Reconvention-Appellant, v. David Bruce SHERMAN, Defendant/Plaintiff in Reconvention-Appellee.
    No. 15822-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.

      Love, Rigby, Dehan, Love & McDaniel by Truly W. McDaniel, Shreveport, for plaintiff/defendant in reconvention-appellant.
    Marshall Blackwell, Monroe, for defendant/plaintiff in reconvention-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, JJ.
   FRED W. JONES, Jr., Judge.

Plaintiff mother appealed that portion of a divorce judgment awarding permanent child custody to the defendant father.

For the reasons hereinafter explained, we affirm.

Eva Wise Sherman and David Sherman were married in February 1976 and established their matrimonial domicile in Ouachi-ta Parish. Two children [one of whom is deceased] were born of the marriage.

The parties physically separated in April 1981. Mrs. Sherman moved with her three year old son to the home of her parents. On August 7,1981 she sued her husband for a legal separation. In connection with a rule filed therein, plaintiff was awarded temporary custody of her minor child on September 8, 1981.

On December 2, 1981 defendant filed an answer and reconventional demand, seeking a legal separation on his behalf. On May 7, 1982 defendant amended and supplemented his reconventional demand to allege adultery on the part of his wife and asked for a divorce. He did not request custody of his minor son at that time.

By petition filed on September 30, 1982 Mrs. Sherman sued her husband for a divorce on the ground of having lived separate and apart for one year. The defendant answered and reconvened for a divorce, again alleging acts of adultery by his wife. Also included in this pleading was a rule for custody of the minor child. A hearing on the rule was had on January 6, 1983.

According to the evidence adduced at the described hearing, after moving from the matrimonial domicile Mrs. Sherman lived at the home of her parents with her son, Jonathan, until the latter part of August 1981 when she obtained employment and secured an apartment in Monroe. Later they moved to another apartment in the same city. Then, in August 1982 Mrs. Sherman moved with her child to Arcadia into a mobile home co-owned by her with Lonnie Waits, an Arcadia businessman.

■ The critical issue posed at the hearing was whether Mrs. Sherman and Waits were engaged in an illicit relationship which was detrimental to the welfare of the minor child, Jonathan.

The 26 year old Mrs. Sherman candidly admitted frequently sleeping with the 33 year old Waits [whom she first met in August 1981], but denied that this ever occurred in the presence of her minor son. Waits often spent the weekend with Mrs. Sherman in her Monroe apartment after their initial meeting. This arrangement extended over a period of some six months. After Mrs. Sherman’s move with her son into the mobile home in Arcadia, that arrangement continued, but on a more consistent basis. Waits had quite a bit of his furniture in the jointly owned trailer, kept clothing there, and the two usually ate together. His motor vehicle was often parked in front of the dwelling. However, Mrs. Sherman denied that they were living together, explaining that she did not cook all of his meals and did not wash Waits’ clothing. She stated that her paramour “stays a good bit with his mother.”

Asked if she planned to marry Waits, Mrs. Sherman replied: “I’m seeing Mr. Waits but I haven’t given him an answer as far as if I’m going to marry him.” In response to a query as to whether she was still sleeping with Waits [at time of trial], Mrs. Sherman stated that she was. Questioned as to how often, she answered: “I really don’t know.”

In view of Ms wife’s admission of the illicit relationship with Waits, Sherman’s evidence at the hearing consisted primarily of the testimony of a Monroe neighbor that she had on several occasions seen Mrs. Sherman physically mistreat her child and that the youngster had been left with a mentally incompetent babysitter.

In rebuttal, Mrs. Sherman presented the testimony of other Monroe residents who attested to her good qualities as a mother who properly cared for her child. Also called on behalf of the plaintiff was a worker at the church-operated child care center in Arcadia [attended in the mornings by Jonathan] who stated that the youngster appeared to be a normal, healthy child who showed no signs of being neglected.

Mrs. Sherman also testified that she operated an ice cream parlor in a building owned by Waits but that, since she had helpers, this did not interfere with her caring for Jonathan when he was not at the child care center.

In written reasons for judgment on the rule, the trial judge stated:

“The mother admits her illicit relationship with Lonnie Waits, however, she contends she engages in no sexual activity in the presence of the child. No one contends sex activity took place with the child present, but the child admittedly sees his mother in bed with a man not her husband nor his father. Such conduct is detrimental to the welfare of the child.”

Judgment on the rule, placing Jonathan in the custody of his father pendente lite, was signed on February 11, 1983. Without a further hearing, this custody award was confirmed in a judgment awarding. Mrs. Sherman a divorce, signed on February 24, 1983.

In this appeal from that portion of the described judgment awarding child custody to Sherman, Mrs. Sherman argues that the record is devoid of any evidence that her illicit conduct with Waits has been detrimental to the welfare of her minor child.

In Bagents v. Bagents, 419 So.2d 460 (La.1982) the trial court had denied a mother custody of her five year old daughter. During the trial the mother admitted living with her paramour whom she planned to marry as soon as he secured a divorce. Affirming the action of the trial court, our supreme court commented:

“The principal consideration in every child custody case is the best interest and welfare of the child. Past misconduct and moral unfitness, demonstrated in this case by the mother’s open concubinage in the home with the child, is a valid basis for determining the present suitability of a parent.”

Despite Mrs. Sherman’s denial that she and Waits were “living together”, the record evidence leads to the conclusion that their arrangement amounted to concubinage. Not having a separate residence, the mobile home in question appeared for all practical purposes to be a dwelling which Waits shared with Mrs. Sherman. This is in marked contrast to Cleeton v. Cleeton, 383 So.2d 1231 (La.1979) where the paramour of the mother who was awarded custody maintained a separate residence and only occasionally stayed overnight with Mrs. Cleeton.

We also note Mrs. Sherman’s admission that her illicit arrangement with Waits was continuing even at the time of the trial.

The trial court is vested with broad discretion in deciding child custody cases. Because of that tribunal’s better opportunity to evaluate witnesses, and taking into account the proper allocation of trial and appellate functions, great deference is accorded to the decision of the trial court. Cleeton, supra, p. 462. After carefully examining this record, we cannot say that the trial judge abused his discretion in awarding custody of the minor child to his father, based upon the “best interest” test. As in Bagents, the mother’s disregard for the observance of recognized moral norms, demonstrated by her living in concubinage with Waits, is a valid criterion for determining her unsuitability as a parent. Since a child learns by example, his mother’s conduct must inevitably affect Jonathan adversely.

For these reasons, we affirm the lower court judgment, at plaintiff-appellant’s cost.


author: JASPER E. JONES, Judge.

text:
    Billy Mack CALDWELL, Plaintiff-Appellant, v. TEXAS INDUSTRIES INC., d/b/a Louisiana Industries, Defendant-Appellee.
    No. 15823-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.
    Albert W. Block, Jr., Monroe, for plaintiff-appellant.
    Hayes, Harkey, Smith & Cascio by Thomas M. Hayes, III, Monroe, for defendant-ap-pellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

Billy Mack Caldwell, plaintiff in this slip and fall case, appeals a judgment rejecting his demand for damages against Texas Industries Inc. d/b/a Louisiana Industries. The trial court found plaintiff failed to establish that the concrete upon which he slipped and fell was deposited in his work area by the defendant. We affirm.

The plaintiff was a carpenter employed by Redrock Construction Company on February 22, 1977. Redrock was a contractor engaged in construction work at the site of Olinkraft’s paper mill in West Ouachita Parish. Plaintiff was a member of one of Redrock’s carpenter crews that was engaged in the construction of forms for the concrete foundation for a new Olin paper machine designated as Machine # 7 and located in Olin paper mill complex. The defendant was supplying the ready-mix concrete required in the construction of the foundation for the paper machine. The concrete was delivered by the defendant in large trucks equipped with large steel drums into which the concrete was loaded at the defendant’s plant and from which it was delivered to Redrock at the Olin site. The only employee of defendant on the truck was the driver of the truck. The foundation for # 7 paper machine was located adjacent to a black-top road which traversed the Olin property and which had been abandoned as the former Jonesboro Road. The new Jonesboro Road was located west of the Olin property and the abandoned Jonesboro Road at the time of the facts upon which this litigation is based was located exclusively within the confines of the Olin property and was used as an inner-plant route of transportation by Olin and its contractors. Part of the foundation for the # 7 paper machine was located at such close proximity to the black-top road that the concrete could be poured into the forms for the foundation directly from the chute attached to the defendant’s truck while it was parked upon the roadway. This chute could be extended to a length of 13 feet. Other parts of the foundation were located at such a distance from the black-top road that the concrete could not be poured into them from the chute attached to the delivery truck. The concrete placed in these more remote forms was delivered to them by wheelbarrows, concrete conveyors and cherry-pickers (a crane-like device that picks up a bucket of concrete at the truck and moves it to the desired location and there dumps it). The concrete was placed from the truck into the wheelbarrows, concrete conveyors or cherry-picker buckets and thereafter transported by these respective conveyances to the more remote forms.

About 10:00 a.m. on the morning of February 22, 1977 the plaintiff, assisted by a laborer, was carrying a heavy 4' X 8' previously constructed form to a location for installation in the foundation site for the # 7 paper machine. The form was being carried along the black-top road traversing the construction site. The laborer was carrying the front end of the form and was leading the direction of travel and the plaintiff was carrying the back end of the form. As the plaintiff was carrying the form he suddenly slipped and fell upon a pile of concrete residue located on the black-top road. The plaintiff described the concrete as being 18" in diameter and 1" thick. The form which the plaintiff was carrying obstructed his view of his pathway and he did not see the concrete residue until he had fallen into it.

The plaintiff allegedly sustained substantial personal injuries as a result of this fall. He contends that his fall was caused by the negligence of defendant’s truck driver who deposited the concrete residue on the blacktop road in the work area. He alleged in his petition that the concrete was washed from the tank of the defendant’s truck following a delivery of the concrete cargo at the foundation site.

The plaintiff, two of his fellow carpenters and the Carpenter Union Business Agent all established the plaintiff’s version of the accident to the effect that he fell after having slipped upon concrete residue. These witnesses all testified that the accident happened during the mid-morning at approximately 10:00 a.m. They all testified that they had observed defendant’s concrete delivery trucks in the area on the morning of and prior to plaintiff’s slip and fall.

This testimony indicated that the chute on the rear of the defendant’s truck was manipulated by defendant’s driver during the delivery of the concrete. This testimony indicated that concrete was frequently spilled onto the roadway at the chute during unloading operations. Some of plaintiff’s witnesses also testified they had observed on occasions the trucks being washed out on the roadway following their discharge of the concrete. This general testimony did not relate to the day of the accident nor to the day prior to it.

Archie Smith, one of the plaintiff’s carpenter co-workers, testified that on the morning of the plaintiff’s fall that all concrete delivered was being poured from the chute on the truck into the foundation forms and that no cherry-pickers, wheelbarrows, or concrete conveyors were being used in connection with the operation.

Archie Smith testified that he had observed one of the defendant’s trucks parked in the immediate area where the plaintiff fell shortly before the plaintiff’s fall. None of the plaintiff’s witnesses testified they saw any concrete being washed from one of the defendant’s trucks at the site where the accident occurred.

When the plaintiff rested after having produced the above summarized testimony on liability, the defendant in this bench trial moved to dismiss the plaintiff’s suit pursuant to C.C.P. art. 1810(B) on the basis that plaintiff had shown no right to relief and the trial court sustained the motion and dismissed the plaintiff’s suit.

The plaintiff appealed the judgment sustaining the motion and dismissing his suit and we reversed the judgment of dismissal and remanded the case for a continuance of the trial. Caldwell v. Texas Industries, Inc., 419 So.2d 86 (La.App.2d Cir.1982). Following our review of the evidence offered by the plaintiff, we held the unrebut-ed evidence established that it was more probable than not that the concrete residue upon which the plaintiff slipped was deposited by one of the defendant’s truck drivers. Following our reversal the trial of the case was resumed on March 16, 1983.

The defendant to rebut the plaintiff’s case offered the testimony of its accountant, Tommy Neil Brackman, its superintendent, Emmett White and its dispatcher, Ronnie Drake.

Brackman testified that following the institution of this action and as the result of instructions from a superior he removed from the records of the defendant their work log for February 22, 1977, and the delivery tickets to Redrock for that date and made two photostatic copies of them, one copy of which he retained in his office. This witness further testified that he returned the original of these records to their prior location in a different office and that the original of these records were subsequently destroyed in a flood in September of 1978.

Ronnie Drake, who worked as the defendant’s dispatcher on February 22nd examined the photostatic copies of the day’s log and the delivery tickets and testified that they were prepared by him and the handwriting thereon was his. This log reflected that only 37 yards of concrete were delivered by the defendant to Redrock in five trucks on February 22, 1977. The first truck left defendant’s plant at 1250 (12:50 p.m.), the second truck left there at 1300 (1:00 p.m.), the third truck left defendant’s plant at 1335 (1:35 p.m.), the fourth truck left defendant’s plant at 1515 (3:15 p.m.) and the fifth truck left defendant’s plant at 1605 (4:05 p.m.). The first truck arrived at Redrock at 1310 (1:10 p.m.), the second truck arrived at Redrock at 1320 (1:20 p.m.), the third truck arrived at Redrock at 1355 (1:55 p.m.), the fourth truck arrived at Re-drock at 1535 (3:35 p.m.) and the fifth truck arrived at Redrock at 1625 (4:25 p.m.). Drake testified that he was at a vantage point on a second floor while serving as the dispatcher. He stated that he could see each truck as it departed and he noted the time, the truck number and the number of yards each truck contained as it departed the defendant’s plant. The driver of each truck communicated with Drake by radio and advised him when he arrived at Re-drock and when he departed from Redrock and Drake placed these times on the log. Drake also placed on the log the time each truck returned to the plant. He reviewed the log and stated that it was accurately maintained and that the deliveries just recited were all that the log reflected that Redrock received on February 22, 1977. The photostatic copies of the log and the delivery tickets were accepted in evidence by the trial judge. The truck numbers and yards of concrete on the delivery tickets corresponded with the information contained on the log. Also placed in evidence by defendant was Redrock’s project diary for February 22, 1977 which reflected that the concrete poured on that date was 37 cubic yards which is the identical amount of concrete which the defendant’s log and delivery ticket reflect were delivered to Re-drock on the day in question.

Emmett White, the superintendent, and Ronnie Drake, the dispatcher, each testified that they were experienced concrete delivery truck operators and were required by their employer to make deliveries when a regular driver was not available to drive the truck. They each testified that though they made none of the deliveries on February 22nd, prior to that time they had made a number of deliveries to the Redrock site. These witnesses testified that during the removal of the concrete from the truck that the driver of the truck was required to operate the necessary controls to move the concrete containing the proper amount of water from the drum on the truck through the chute in the rear of the truck. The maneuvering of the chute to place the concrete in the position required by Redrock was handled by a Redrock employee engaged in the pouring of the foundation. They further stated that Redrock’s employees usually scraped from the chute all residual concrete in order to obtain the full amount of concrete which was being delivered and for which Redrock was required to pay. These witnesses stated that Redrock’s concrete crews knew exactly where in the forms they wanted the concrete placed and the amount of concrete to be placed in each specific spot.

These witnesses stated that the defendant had received specific written instructions from Olin that no concrete trucks were to be washed out on any Olin property other than at a designated wash-out area located near the exit of the Olin property. They testified that from 25 to 30 gallons of water were required to wash out the tank on the truck and a substantial amount of residue was removed from the truck during a wash-out procedure and created “quite a mess.” They further advised they always conformed to this instruction and only washed their trucks out at Olin’s designated dump site and that all of their drivers had been advised to comply with Olin’s instructions. These witnesses further stated they had never received any complaint from Olin about any violation by their drivers of Olin’s wash-out instructions. These witnesses testified that the cabs of the defendant’s trucks were painted orange and the tanks were painted white at the time of the plaintiff’s alleged injuries. They acknowledged that one of the defendant’s trucks was painted solid white and decorated with an American flag and other patriotic symbols for the purpose of reflecting the 1976 bi-eentennial celebration. They stated that in 1979 the tanks of the trucks were painted battleship gray and the cabs remained orange. This evidence conflicts with the testimony of the plaintiff and several of his witnesses as to the color of the trucks which they observed at the Redrock site on the morning of and prior to the plaintiff’s fall and which they stated belonged to the defendant.

The defendant’s witnesses stated that other ready-mix concrete companies whose trucks were painted different from defendant’s trucks occasionally used the road adjacent to the # 7 paper machine while making deliveries to other contractors performing work for Olin in its paper mill complex.

On remand the trial court, following the defendant’s evidence, may then review all the evidence. The trial judge may make a credibility evaluation of the plaintiff’s prior unrebutted testimony in light of the additional evidence offered by the defendant at the resumption of the trial following the reversal and remand by the appellate court. Leffingwell v. Atlas Asphalt Co., Inc., 876 So.2d 175 (La.App. 4th Cir.1979).

The plaintiff offered no rebuttal evidence after the defendant rested and relied solely on the evidence which he had produced at the initial trial at the time the defendant’s motion to dismiss was sustained.

The issue is: considering all of the evidence introduced by the plaintiff and the defendant did the plaintiff establish by a preponderance of the evidence that a driver of the defendant’s ready-mix concrete delivery truck place upon the black-top road the concrete upon which the plaintiff slipped and fell.

The plaintiff must establish the defendant’s negligence by a preponderance of evidence. This burden of proof may be met by direct or circumstantial evidence. When the plaintiff relies upon circumstantial evidence the evidence taken as a whole must show the defendant’s fault was the most plausible cause of the accident and exclude with a fair amount of certainty all other reasonable causes of the accident. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972); Hargis v. Travelers Indemnity Company, 248 So.2d 613 (La.App. 3d Cir.1971); Myers v. Morrow, 367 So.2d 1297 (La.App. 4th Cir.1979); Blanchard v. Sotile, 394 So.2d 633 (La.App. 1st Cir.1980).

The commencement of the trial of this case was on November 10, 1981, more than 4½ years from the date of the accident sued upon and it was concluded following remand on March 16, 1983. Included in the trial judge’s very excellent reasons for judgment are the following statements:

“One of the ‘weight’ or ‘credibility’ factors considered by this Court at the completion of plaintiff’s evidence was the degree of what appeared to be substantial assumption or unconscious conclusion of ultimate fact (as contrasted from basic evidentiary fact) on the part of the witnesses. A number of circumstances contributed to this analysis: all of the principal witnesses were either members of the' carpenter crew or carpenter’s union who, on that job, had no direct involvement in the pouring of concrete and whose observation of the details of that activity could only have been rather incidental and casual; the very long and largely unexplained delays in the filing and prosecution of the suit, together with the evidence indicating late-developing symptoms and realization of apparently serious injury, were strongly suggestive of delayed investigation of detailed facts; the distinct likelihood that such factors caused the witnesses to rely, probably without realizing it, upon subjective recall rather than actual knowledge; the demeanor, choice of words and responses of the witnesses to questions on cross-examination, as well as the overall content of their testimony. For those reasons, this Court did not find the evidence persuasive as proof of fact prima facie to establish the premise of defendant’s liability.”
“The defense evidence not only flatly contradicts or ‘refutes’ many crucial aspects of plaintiff’s evidence, but it clearly confirms the earlier conclusion of the Court that plaintiff’s witnesses were expressing assumptions and basing their testimony at least in part upon ‘hindsight’ when reflecting at later times.”

The trial judge concluded by stating that the plaintiffs circumstantial evidence failed to establish by a preponderance of the evidence that the concrete upon which the plaintiff slipped and fell was deposited by a driver of one of the defendant’s trucks. He recognized that the totality of the evidence showed a number of other reasonable possible explanations of how the concrete came to be in the plaintiffs path of travel other than that it was placed there by one of defendant’s truck drivers.

Our own independent review of the evidence clearly establishes that the plaintiff had no witnesses that observed the concrete being placed on the black-top by one of the defendant’s truck drivers and therefore it is apparent that the plaintiff is totally relying upon circumstantial evidence to establish his case against the defendant.

We further agree with the trial court’s evaluation of the plaintiff’s witnesses to the effect that they were testifying about facts which occurred 4½ years before the trial. They were further testifying about facts directly relating to the pouring of concrete for the foundation of the paper machine which was an aspect of Redrock’s construction work with which they were not directly concerned and about which their knowledge would have been obtained only by casual observation rather than by their having been directly involved in the concrete pouring operation. These circumstances substantially detract from the quality and weight of their testimony. The plaintiff offered no testimony from any Redrock employee whose duties were directly related to the concrete pouring function as to the manner in which the defendant’s concrete deliveries were made nor to the effect that concrete was delivered by the defendant on the morning of the plaintiff’s fall.

The business records of the defendant and the testimony of its witness corroborated by the project diary of Redrock provide substantial evidence that no delivery of concrete was made to Redrock on the morning of plaintiff’s fall. The defendant’s evidence reflects that the first delivery of February 22nd did not arrive at Redrock until 1:10 p.m., about three hours after plaintiff’s fall.

The plaintiff testified that he believed that on the morning of the accident the concrete was being poured by the use of cherry-pickers, though he was not absolutely certain. The only plaintiff witness who positively testified that all concrete was being poured directly from the chute on the truck on the date of plaintiff’s accident was Archie Smith. Smith had earlier testified that he could not remember whether the concrete being poured on the morning of the plaintiff’s fall was being poured in forms immediately adjacent to the blacktop or being poured into forms more remote from the black-top. The significance of this inconsistency is that if the concrete was in fact being poured on the morning of and before the plaintiff’s fall, it could have been placed in form foundations remote from the black-top which would have required that it be transported from the truck to its location by conveyances totally owned by Redrock and operated exclusively by its employees. Concrete could have fallen from Redrock receptacles while being so transported. Smith’s uncertainty as to the location of the form being poured detracts substantially from his positive statement that all concrete being poured that morning was being poured directly from the truck.

We further note that even if concrete had been poured that morning and was being poured directly from the truck that positive evidence provided by the defendant was to the effect that Redrock employees handled the manipulation of the chute during the pouring operation. It could well have been that any concrete that fell from the chute onto the black-top during this pouring operation could have been placed there by virtue of the inattention of Redrock’s employees and due to no negligence on the part of defendant’s driver who was operating the necessary controls for the removal of the concrete from the tank of the truck.

We further observe there is evidence that Redrock’s employees, after the concrete pour, frequently washed their concrete containers (wheelbarrows, cherry-picker buckets and conveyor equipment) and finishing tools from a water supply source located upon the defendant’s truck. The concrete residue upon which the plaintiff fell could have well came from the cleaning of their equipment by Redrock employees.

If the concrete upon which plaintiff fell was left upon the roadway from concrete pouring operations that occurred the previous day all of the observations we have made would still be applicable to the difficult problem of determining the source of yesterday’s concrete.

Where there is a conflict in testimony, reasonable evaluation of credibility and reasonable inferences of fact made by the trial judge who has an opportunity to hear and see the witnesses testify, should not'be disturbed upon appeal in absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). After reviewing the totality of the evidence we find no manifest error in the trial court’s conclusion that the plaintiff failed to prove that the most plausible cause of the accident was that one of the defendant’s truck drivers washed his tank and/or chute and let the residue from the washing fall upon the black-top upon which the plaintiff later slipped. We further agree with the trial court that there are several other reasonable explanations as to how the concrete found its way upon the black-top for which the defendant had no responsibility. The concrete could have been dropped from the chute during the pouring operation due to the negligence of one of Redrock’s employees. The concrete could have failed from a Redrock wheelbarrow or a Redrock cherry-picker or a Redrock concrete conveyor. The concrete could have been washed from a Redrock receptacle by a Redrock employee or from a Redrock concrete finishing tool by a Redrock employee. The failure of the plaintiff to prove that the concrete was deposited by the defendant’s employee and that it was not left by a Redrock employee results in his failure to establish by circumstantial evidence the negligence of the defendant in causing his fall and damages which he here attempts to collect. Judgment AFFIRMED at appellant’s cost.

      . C.C.P. art. 1810(B):
      In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.


text:
    In re EWB Applying For Adoption.
    No. 15830-CAJ.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.

      DeLaune & Blondeau by A.L. Blondeau, Bossier City, for appellee.
    Love, Rigby, Dehan, Love & McDaniel by Joe B. Cordill, Jr., Shreveport, for appellant.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

This is a stepparent adoption proceeding. The petitioner seeks to adopt his wife’s daughter by a previous marriage. He alleges the consent of the child’s father is unnecessary because of his failure to pay court ordered child support for over a year. The father opposes the adoption. After a hearing the trial judge found the father’s consent unnecessary and the adoption was in the best interest of the child. He granted the adoption and ordered the child’s name changed. The opponent appeals. We reverse for the reason that the adoption was not in the best interest of the child.

Opponent and the mother were granted a divorce in California in January, 1979. The divorce decree granted the mother custody of the child of the marriage, age 6 at the time of the adoption hearing, and ordered opponent to pay $225.00 per month child support. Opponent was granted reasonable visitation privileges. Prior to the divorce but after the couple separated, the mother and the child moved to Bossier City, where the mother resided prior to her marriage. She married petitioner in January, 1979. Opponent remained in California. He remarried in March, 1980.

There was a great deal of animosity between the ex-spouses which led to friction over what was meant by reasonable visitation privileges. Opponent filed a rule in Caddo Parish to set specific visitation rights in March, 1979. The judgment on the rule gave opponent, among other visitation rights, the right to have physical custody of the child for two weeks each summer.

The judgment setting forth specific visitation rights did not terminate the friction over opponent’s visitation rights and he began withholding various amounts from his child support payments. In March, 1980 opponent filed a rule in Caddo Parish for contempt against the mother for failure to comply with the visitation rights set forth in the judgment. She responded with a rule for contempt against opponent and a motion to make the unpaid child support executory. Judgment was rendered making past due child support of $1,031.00 exec-utory. Opponent’s specific visitation privileges were basically retained. Opponent never paid the back support but he began making his full monthly payments.

In early September, 1980 opponent contacted his ex-wife about having the child come to California for her two week summer visit for 1980. The mother refused to allow the visit because she considered the summer to be over and the child, who was 3 years old at the time, was in nursery school. The mother testified she considered nursery school to be more important than the child’s visit to her father. In response to the mother’s refusal to permit the visit, opponent stopped payment on his child support check for September and has not paid anything since.

Prior to the hearing opponent tendered government checks totaling $653.59 payable to his order to be applied to his unpaid child support into the registry of the court to be paid to the mother if the adoption was not granted. The trial judge refused to permit the conditional deposit of the checks in the registry of the court but permitted the checks to be placed into evidence. The opponent testified he intended to eventually pay the unpaid child support and to maintain same current in the future.

The testimony at the hearing indicates petitioner and the child have a good relationship and they love each other very much. Petitioner appears to be an ideal father figure. He has a good job, attends church regularly and is an excellent husband and father. He becomes involved in most of the child’s activities and he spends as much time as possible with her. A child has been born of the marriage between petitioner and the mother and petitioner treats his child and the child he seeks to adopt in the same manner.

After the hearing the trial judge found that: (1) opponent’s refusal to pay child support was unjustified; (2) opponent had forfeited the right for his consent to be required to the adoption under La.R.S. 9:422.1 because of his failure to pay child support for over one year; and (3) it would be in the best interest of the child to order the adoption.

On appeal, opponent concedes his consent to the adoption is not required. He contends the trial court’s finding it was in the best interest of the child to order the adoption was incorrect.

Although a parent has lost the right for his consent to be required to the adoption of his child under R.S. 9:422.1, the adoption should only be granted when it is in the best interest of the child. La.R.S. 9:432 B; Adoption of Latiolais, 384 So.2d 377 (La.1980); In re BAS Applying for Adoption, 424 So.2d 405 (La.App.2d Cir.1982).

Whether an adoption is in the best interest of the child must be decided on the facts of each case and the trial judge is vested with great discretion in making that determination. In re Hinton, 390 So.2d 972 (La.App.2d Cir.1980); In re BAS, supra. This discretion is not absolute and the trial judge’s determination of best interest is subject to reversal if the record reveals manifest error in his determination. See Adoption of Latiolais, supra; In re Glass Applying for Adoption, 424 So.2d 383 (La. App.2d Cir.1982).

The trial judge’s oral reasons for judgment dictated into the record include the following reasons on the issue of the best interest of the child:

I think its a large part of my judgment to take into consideration what [opponent] must have thought by his actions ... The impression I get is that basically because of the dissatisfaction between the parents of [the child] he took it on himself to stop the child support payments ... Basically what [opponent] seems to have done is, he apparently put his best interest and the interest of visitation, as he seems to think it should have been at a higher priority than the best interest of the child because he withheld the payments apparently in order to try to secure what he thought was best for himself and also for the visitation relationship.
At any rate, I find here under all the circumstances with the good relationship that I have found in the [petitioner’s] home and what with the decision that [opponent] made to stop the child support under the circumstances that he did, I have concluded that it’s in the best interest of the child in these particular fact circumstances, which as we all know differ from any other case, you’ve got to take every case on its facts, but I found on these particular facts that it’s in the best interest of the child to permit [petitioner] to adopt the child.

While the natural parent’s failure to pay child support and the relationship between the child and stepparent are certainly factors to be considered in determining the child’s best interest, they are not the controlling factors. Where the trial judge erred is he considered the relationship between the child and opponent entirely from the standpoint of the legal effect of opponent’s failure to pay child support and the fact that opponent did not consider the child’s interest in not paying. No consideration was given to the relationship with her natural father from the child’s standpoint and the effect it would have on her to declare that relationship at an end and deny her the right to see and be with her natural father and to deprive her of this extremely important relationship and all the benefits that come from it.

The leading supreme court decision in the area of stepparent adoptions under R.S. 9:422.1, where the noncustodial parent has failed to pay child support for over one year and has maintained a close relationship with the child, is Adoption of Latiolais, 384 So.2d 377. The facts of Latiolais, are similar to those in the case before us. The Latiolais facts are detailed in the court of appeal’s decision at Adoption of Latiolais, 376 So.2d 555, (La.App. 3d Cir.1979). There the natural father was 31 months behind on his child support payments at the time the petition for adoption was filed. Nevertheless, the father continued to make his biweekly visits. The father and the child “enjoyed a normal father-daughter relationship of love and affection.” The stepfather also enjoyed a good relationship with the child and he provided her with a good loving home. The trial court granted the adoption. The court of appeal reversed stating, “we are reluctant to put an irrevocable end to the nine and one-half year relationship of father and daughter where that relationship has been maintained continuously and on a firm basis.” The supreme court affirmed the reversal.

In the instant case opponent was approximately 25 child support payments behind at the time of the filing of the petition for adoption in May, 1982. Opponent continued to visit on a regular basis although he was behind in his child support. The testimony indicates the child has good loving relationships with both opponent and petitioner and petitioner has provided her with a good home.

The trial court distinguished this case from Latiolais on the grounds that here the visits were not as frequent as those in La-tiolais. The difference in the number of visits is explained by the fact that in Latio-lais the father lived a relatively short distance from the daughter whereas here opponent has to travel all the way from California in order to visit. Opponent’s visits are as frequent as possible considering the great distance involved.

Since the Latiolais decision was handed down we have considered the best interest of the child issue in R.S. 9:422.1 stepparent adoption proceedings on five occasions. All of the cases involved situations where the stepparent had a good relationship with the child and provided the child with a loving home.

Two of the cases involved similar factual situations to the one in the instant case. We refused to order the adoption in those cases. In re H Applying for Adoption, 437 So.2d 895 (La.App. 2d Cir.1983) (we affirmed the decision of the trial court); In re Glass Applying for Adoption, supra (we reversed the trial court). In both cases the noncustodial parents, who were behind in their child support payments, continued to visit their children and had good loving relationships with them.

In two of the cases we affirmed the trial court’s decisions ordering the adoptions. In re MDA, 427 So.2d 1334 (La.App. 2d Cir.1983); In re BAS applying for Adoption, supra. In those cases the natural fathers were not only behind in their support payments, they had also failed to visit or communicate with their children for extended periods of time.

In the fifth case, In re Hinton, supra, we affirmed a trial court’s denial of the adoption because it was not in the best interest of the child. The father was behind in his child support for more than one year and he had not visited with or talked to his children for almost two years at the time of the hearing. The reason for the father’s failure to visit was that all of his visitation attempts were opposed and frustrated by the mother. These factors were recognized in the opinion which followed the rationale of our other cases where the adoptions were denied because of the best interest of the child.

In all of these cases, including Latio-lais, the controlling factor for determining the child’s best interest is the quality of the relationship between the child and the noncustodial parent who has not paid child support and whether it would be conducive to the child’s interest to maintain that relationship. Regular visitation, or attempted regular visitation, tends to show the relationship is good.

In the instant case opponent has maintained a good relationship with his daughter through regular visitation although the number of visits has been limited to some extent by the distance involved. Opponent has bought the child many gifts and has always remembered her on her birthday, at Christmas and on other occasions by sending her gifts, cards and letters. He has called the child and has instructed her mother to allow her to call him whenever she feels the need to talk to him and she has called on several occasions. He has attempted to teach the child to swim and skate. Opponent loves his daughter and has three times filed proceedings in Louisiana courts, to enforce his visitation rights. He has made the necessary trips to Louisiana in connection with those proceedings.

The testimony indicates opponent’s love for his daughter is reciprocated. She looks forward to his visits and is often disappointed when it is time for the visit to end. Even the maternal grandmother admits that every time she observed opponent and the child together they appeared to have a good relationship. There was no testimony to indicate the relationship was anything less than the normal loving relationship between father and daughter.

Under the circumstances it would be in the child’s best interest to maintain her relationship with her father and not order the adoption. If the adoption were granted the relationship would irrevocably be at an end. We conclude the trial judge’s determination that the adoption was in the best interest of the child was manifest error.

The child is entitled to the best of both worlds. She will be raised in a good loving home with a stepfather who cares for her very much. The stepfather will have the great majority of each year to raise her in the manner he and her mother see fit. At the same time the child will be able to occasionally see her natural father, enjoy the relationship she has with him, and receive the benefits which flow from her continued association with her natural father.

Our decision in this case should not be construed as condoning the nonpayment of child support. The support of his child is one of the strongest obligations the law imposes on a parent. Denial of visitation privileges does not justify the failure to pay child support. In re BAS Applying for Adoption, supra. Opponent has a legal remedy if his visitation rights are violated. By not paying his child support he has, in effect, taken the law into his own hands and such behavior is to be condemned. For purposes of our decision we consider opponent’s consent to the adoption was not required because of his failure to pay court ordered child support for more than one year without justification. The reason we do not affirm the trial court’s judgment granting the adoption is our concern for the best interest of the child. It was not shown that it would be conducive to that interest to sever her relationship with her natural father.

For the foregoing reasons, the judgment of the trial court granting the adoption and ordering the child’s name to be changed is REVERSED and the petition for the adoption is denied. All cost in the trial court and on appeal are assessed against the petitioner.

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

      . In the interest of readability we have made several minor changes in what was actually transcribed by the court reporter. The substance of the court’s reasons has not been changed. The names have been deleted to protect the confidentiality of the parties.

      . The evidence reflects the following visits between the opponent and his child following the separation: Sept. 1978, four visits between October 1978 and March 1979 including a visit on Thanksgiving and Christmas of 1978; a visit in June, July and Thanksgiving 1979; a visit in January or February 1980, March 1980, June 1980, three visits between September 1980 and summer 1981, one of which was at Christmas 1980; Thanksgiving 1981, Christmas 1981, January, 1982.
      Included in the visits that the mother refused to permit was a two week proposed visit in California Sept. 1980, a two week proposed visit in California June 1981 and a proposed visit in Bossier City in April, 1982.


author: MARVIN, Judge.

text:
    Patricia HARRIS, et al., Plaintiff-Appellant, v. Joseph VERGO, et al., Defendants-Appellees.
    No. 15835-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.

      Piper & Brown, Inc. by Robert E. Piper, Jr., Shreveport, for plaintiff-appellant.
    Hal V. Lyons, Lunn, Irion, Switzer, Johnson & Salley by Charles W. Salley, Shreveport, for defendants-appellees.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, JJ.
   MARVIN, Judge.

In this action for wrongful death, plaintiffs appeal a summary judgment which rejected plaintiffs’ demand against Vergo, one of three defendants alleged to have been liable in solido under CC Art. 2324. We affirm.

The motion for summary judgment is supported by the deposition of Vergo and by corroborating affidavits of the other defendants, Cates and Wrozck. Plaintiffs did not file affidavits or depositions in opposition to summary judgment, but contend that Vergo’s deposition shows that a material issue of fact exists as to whether or not Vergo’s actions contributed to the alleged wrongful death. CCP Art. 966. The ultimate issue is whether the trial court was clearly wrong in finding that, as a matter of fact and of law, Vergo did not act in any way to contribute to the cause of decedent’s death.

The decedent came to Vergo’s automotive shop to obtain a vehicle he had left there several months before. The vehicle would not run properly and decedent became enraged at Vergo. Decedent stole a truck belonging to Vergo’s friend, Cates, who was visiting the shop. Cates asked for and obtained a pistol from Wrozck, another friend who was also at the shop, and fired one or more shots over the truck driven by decedent. Wrozck joined Vergo and Cates in Vergo’s truck and pursued the decedent in the stolen truck.

Decedent collided Cates’ truck with at least one vehicle and was arguing with the driver of that vehicle (Berford) after the collision when Vergo and the others in Ver-go’s truck stopped some distance away to observe the argument. Berford had a rifle with him. Decedent tried to take it away but Berford shot the rifle over the head of decedent to keep decedent from attacking him. Berford ran from the decedent to the company of Vergo, Cates, and Wrozck. Decedent then began to pursue these. four persons on foot even though he knew or should have known that one of them had a pistol and that Berford had a rifle.

Vergo fell into a ditch and decedent caught up with him, jumped on him, and began choking him until he turned “blue.” Vergo was 5'6" and weighed about 155 lbs. Decedent was 6'1" and weighed 220 lbs. Cates came to Vergo’s rescue and attempted to pull decedent off Vergo and to stop decedent from choking Vergo by hitting decedent with a stick. Vergo was in a frenzy and Cates’ efforts did not faze decedent. Cates then shot decedent with a pistol one or more times and effected Vergo’s release. The shot or shots proved fatal.

Vergo managed to extricate himself from under decedent but was extremely weak and had difficulty standing because of having been choked. Neither Cates nor Wrozck was employed by Vergo. The deposition and affidavits show that they were simply friends of Vergo and that they did not conspire to act in concert against decedent, especially after they ceased pursuing decedent when he collided Cates’ truck with Berford’s vehicle.

Even should we assume that Cates used excessive and unlawful force against decedent, Vergo did not direct Cates’ rescue attempts or any other action by Cates after decedent began to pursue Cates, Vergo, Wrozck and Berford on foot. Vergo was incapable of communicating with anyone after decedent began choking him. Cates obtained the pistol used in the shooting from Wrozck and not from Vergo, even though the pistol apparently came from Vergo’s shop. This fact does not make Ver-go liable to plaintiffs.

CCP Art. 966 was amended in 1966 to not permit an adverse party in a motion for summary judgment to rely on the bare allegation of his or her pleadings. See Comment-1966, LSA-CCP, Vol. 3 Supp.

While it has been recognized that summary judgment is “seldom appropriate” for determining whether a person’s conduct legally constitutes negligence, summary judgment has been held proper to cause dismissal of one of several defendants after the operative facts have been established by discovery. See Cosse v. Schwegmann Brothers Giant Supermarkets, 336 So.2d 1074 (La.App. 4th Cir.1976). Plaintiffs simply have not disputed any material fact established by the deposition and affidavit.

Under these circumstances, summary judgment in favor of Vergo is AFFIRMED at appellee’s cost.

      . LSA-CC Art. 2324 reads:
      “He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.
      “Persons whose concurring fault has caused injury, death or loss to another are also answerable, in solido; provided, however, when the amount of recovery has been reduced in accordance with the preceding article, a judgment debtor shall not be liable for more than the degree of his fault to a judgment creditor to whom a greater degree of negligence has been attributed, reserving to all parties their respective rights of indemnity and contribution.”


text:
    Joanne Lally ROHRING, Plaintiff-Appellee, v. Thomas Albert ROHRING, Defendant-Appellant.
    No. 15836-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.

      Powell & Wilson by Michael W. Powell, Shreveport, for defendant-appellant.
    Freyer & Fox by Gary L. Fox, Shreveport, for plaintiff-appellee.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   HALL, Judge.

In this action for partition of community property, the former husband appealed from that part of the district court judgment awarding the former wife 42.3 percent of the former husband’s military retirement benefit payments commencing February 1, 1983.

The wife filed suit for separation on June 2, 1980. Judgment of separation was rendered December 5,1980, and a divorce judgment was rendered August 11, 1981. Her petition for partition of the community property was filed November 24, 1981.

After trial, in excellent and comprehensive written reasons for judgment, filed March 28,1983, the district court found that the husband entered the armed services in 1947 while domiciled in New York. The parties were married on July 6,1953. They moved their domicile to California in 1962, where it remained until they moved to Louisiana in April 1974. The husband was discharged from the service on December 31, 1974.

The district court held that under Pub.L. 97-252, Title X, § 1002(a), 10 U.S. C.A. § 1408(c)(1), effective February 1, 1983, which legislatively overruled McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), a court may treat military retirement pay either as property solely of the retired member or as property of the member and his spouse in accordance with the applicable state law. Under Louisiana law, absent federal preemption, military retirement pay is community property. Sims v. Sims, 358 So.2d 919 (La.1978); T.L. James & Co., Inc. v. Montgomery, 332 So.2d 834 (La.1976); Rasbury v. Baudier, 410 So.2d 262 (La.App. 4th Cir.1982); Rogers v. Rogers, 401 So.2d 406 (La.App. 1st Cir. 1981), on remand 408 So.2d 359; DeDon v. DeDon, 390 So.2d 937 (La.App. 2d Cir.1980), affirmed 404 So.2d 904 (La.1981); Swope v. Mitchell, 324 So.2d 461 (La.App. 3d Cir.1975). California law is the same. In Re Marriage of Buikema, 139 Cal.App.3d 689, 188 Cal.Rptr. 856 (App.1983); In Re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561, 94 A.L.R.3d 164 (1976); Smith v. Lewis, 13 Cal.3d 349, 118 Cal.Rptr. 621, 530 P.2d 589 (1975); In Re Marriage of Fithian, 10 Cal.3d 592, 111 Cal.Rptr. 369, 517 P.2d 449 (1974). Finding no New York cases in point, the district court nevertheless held that the New York equitable distribution law would support the same result, that is, an award of one-half of the retirement benefits to the spouse. § 234 of the Domestic Relations Law of the State of New York.

The court further held that rights to the retirement benefits accrued continuously throughout the husband’s period of service and that the wife’s entitlement to benefits should be determined under the law of the states in which the parties were domiciled for the respective periods during which retirement benefits were accrued, in accordance with the formulas employed in T.L. James & Co., Inc. v. Montgomery, supra, and Swope v. Mitchell, supra.

Finding that except for the husband’s four years of service prior to his marriage to the wife, the wife would be entitled to 50 percent of the husband’s retirement pay under the laws of each state in which they were domiciled during the husband’s 22 years of service after the marriage, the district court awarded the wife ¾⅞ of ⅝, or 1½6, or 42.3 percent of the retirement benefit payments. Judgment was rendered accordingly.

On appeal, the former husband complains only that the district court erred in finding that the parties’ domicile was changed from New York to California and that the district court erred in finding that the wife would be entitled to an interest in the retirement benefits under the law of New York, which does not have a community property regime. The former husband argues that his domicile was in New York at the time he entered the service and remained there until he moved to Louisiana a few months prior to his retirement. It is argued that since New York is not a community property state, the wife is not entitled to that percentage of the retirement benefits which accrued while the parties were domiciled in New York, and is only entitled to the small fraction of the benefits which accrued after the parties moved to Louisiana.

The evidence supports the trial court’s finding that the parties moved to California and established their legal domicile there in 1962. Military records in evidence reveal that from 1953 to 1962 the husband listed his home of record and permanent address as being in the state of New York. Beginning January 30, 1962, however, his home of record was listed as an address in Fairfield, California. The parties purchased a home in Fairfield in 1962. The husband mentioned in his testimony at trial that they lived in New York until they “resided in California.” Although the burden of proof was on the wife to show a change in domicile, that burden was met and the trial court’s finding in that regard is supported by the evidence and is not manifestly erroneous.

Neither party clearly established the applicable New York law. New York does not have a community property regime. Susan W. v. Martin W., 392 N.Y.S.2d 957, 89 Misc.2d 681 (1977). New York adheres to the doctrine of equitable distribution of property. Section 234 of the Domestic Relations Law of the State of New York allows the court to "... make such direction, between the parties, concerning the possession of property, as in the court’s discretion justice requires having regard to the circumstances of the case and of the respective parties.”

No New York cases dealing with distribution of military or any other retirement benefits upon separation or divorce have been cited by' the parties or discovered by the district court or this court. It appears, however, that the courts of numerous states which have equitable distribution laws have recognized a spouse as entitled to one-half of the other spouse’s military retirement benefits. Some equitable division states have reached a contrary result. See annotation, “Pension Or Retirement Benefits As Subject To Award Or Division By Court In Settlement Of Property Rights Between Spouses”, 94 A.L.R.3d 176, § 13 (1979), and cases cited therein.

Where the law of another state is not established, it may be presumed that the law of that state is the same as that of Louisiana. Succession of Gibson, 186 La. 723, 173 So. 185 (1937); Sobberri v. Cookston, 438 So.2d 688 (La.App. 2d Cir.1983); Franks v. Louisiana Health Ser. & Indem., 382 So.2d 1064 (La.App. 2d Cir.1980).

The district court’s award to the wife of one-half of the retirement benefits attributable to the period of service while the parties were domiciled in New York is justified under the court’s reasonable interpretation of New York law and, in any event, is justified by the application of Louisiana law in the absence of proof that the law of New York is contrary to Louisiana law.

For the reasons assigned, the judgment of the district court is affirmed at appellant’s costs.

Affirmed.


text:
    Ollie SHEPARD, Plaintiff-Appellant, v. Billy CALLOWAY and Big M, Inc., Defendants-Appellees.
    No. 15844-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.
    Williams & Williams by Moses Williams, Jr., Tallulah, for plaintiff-appellant.
    Donnie L. Ellerman, Winnsboro, for defendants-appellees.

      Before HALL, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

Plaintiff appeals a judgment rejecting her demand under CC Art. 2463 for the return of double the amount of $2,000 she deposited with the defendant mobile home dealer for the purchase of a mobile home.

The legal issue is the nature of the obligation undertaken by each party. CC Art. 2021. We reverse and render judgment for plaintiff for return of the $2,000.

The $2,000 was given defendant by plaintiff on December 22,1981, in contemplation of her purchase of a new 14' X 70' Fleet-wood home for $19,550. Defendant does not dispute the trial court’s finding that this sale was conditioned on plaintiff’s ability to obtain financing. Defendant assisted plaintiff in applying for financing with CIT, Inc. When CIT declined to finance plaintiff’s purchase, plaintiff enlisted the help of a friend, Toney, who further consulted with defendant and attempted to obtain financing elsewhere. On January 18, 1982, defendant sold the Fleetwood home to another customer, telling Toney about this during their consultations about three days later.

Defendant then obtained from another mobile home dealer in another town, a new 14' X 70' Horton mobile home after he talked to plaintiff about buying the Horton. Defendant testified that plaintiff agreed to purchase the Horton and offered an invoice he prepared for the sale for $19,800. Defendant also testified, however, that he gave identifying specifications on the Horton to plaintiff’s friend Toney so Toney could put them on a credit application to another financing institution. Defendant and his wife testified that they would not deliver a new mobile home to a customer until that mobile home was paid for. While plaintiff vigorously contended that-she did not agree to buy the Horton home, the trial court found to the contrary, saying,

“The trailer is still on the seller’s lot ready to be delivered and the demands of plaintiff ... are rejected ...”

The trial court further found that the sale of the Horton was “made” upon Toney advising the seller that “financing was arranged.” Even with defendant’s help, To-ney’s efforts to obtain financing for plaintiff were not successful.

Even should we agree, under the principle of Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), that the trial court was not clearly wrong in these factual conclusions, the record is abundantly and overwhelmingly clear that the legal effect of the circumstances found by the trial court establishes only a conditional obligation. CC Art. 2021. Defendant knew the institution from which Toney was attempting to obtain financing for plaintiff, he rendered some assistance to Toney, and he was well aware of plaintiff’s financial situation, having assisted her in the earlier CIT application. He and his wife made it clear that he would not deliver a new mobile home unless it was paid for, while on the contrary, he said he sometimes did finance some “used mobile homes only.” Nothing in the record suggests that defendant contemplated the possibility of financing himself (selling on credit) either the Fleetwood or the Horton to the plaintiff. The sale of the Horton was not conditioned upon Toney advising defendant that “financing was arranged,” but was clearly conditioned upon the obtaining of funds by plaintiff to be used to pay defendant the remaining portion of the sales price, approximately $17,000.

A contract to sell which is contingent upon the obtaining of financing is a contract subject to a suspensive condition. This contract does not become effective until the condition occurs. CC 2021, 2043. Woods v. Austin, 347 So.2d 897 (La.App. 3d Cir.1977); Sims v. Ussery, 355 So.2d 633 (La.App. 4th Cir.1978). When the contract does not take effect, the depositor-purchaser is entitled to the return of his or her deposit. Boudreaux v. Elite Homes, Inc., 259 So.2d 669 (La.App. 4th Cir.1972), writ refused; Woods, supra.

Plaintiff’s contention that she is entitled to double the deposit under CC Art. 2463, however, must fail. If the contract is effective, and where a deposit has been made, “each of the contracting parties is at liberty to recede from the promise; ... he who has given ... by forfeiting ... and he who has received ... by returning . .. double.” CC 2463. Here the contract was not effective because the suspensive condition (obtaining of financing) never occurred, and secondly, the seller did not “recede” from the promise to sell. Marconi v. Guichard, 242 So.2d 54 (La.App. 4th Cir. 1970). Plaintiff is entitled only to return of $2,000, plus interest from the time she demanded the return, even though she did not pray for interest. CCP Arts. 2164, 1921; Alexander v. Burroughs Corp., 359 So.2d 607 (La.1978). While it is clear that Toney made some sort of demand for the return of some of the deposit before suit was instituted, the record does not allow us to determine when such a demand was made. We shall award legal interest only from the date of judicial demand.

Judgment appealed is REVERSED and judgment is hereby rendered in favor of plaintiff, Ollie Shepard, and against defendant, Billy Calloway and Big M, Inc., for $2,000 with legal interest from judicial demand, and for all costs, here and below.