author: GUIDRY, Judge.

text:
    Frances Vandersypen LACHNEY, Plaintiff-Appellant, v. Gordon Wayne LACHNEY, Defendant-Appellee.
    No. 83-305.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Rehearing Denied April 3, 1984.
    Writ Denied June 1, 1984.
    See also, 399 So.2d 731.

      Davis & Saybe, Michael H. Davis, Alexandria, for plaintiff-appellant.
    Robert L. Beck, Jr., and Phillip Carol, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and YELVERTON, JJ.
   GUIDRY, Judge.

In this suit, the plaintiff, Frances Van-dersypen Lachney (now Herring), seeks a change in the custody of her minor daughter, Tammy Lachney. Tammy’s father, Gordon Lachney, has had sole custody of the child, subject to visitation rights in favor of the mother, since February of 1980. The plaintiff seeks an order of joint custody pursuant to LSA-C.C. Art. 146, or in the alternative, an alteration of the visiting privileges previously awarded. The trial court refused to issue an order of joint custody. However, the court did make an adjustment in the visitation privileges in favor of the plaintiff. The plaintiff appeals, asserting that the trial court erred in failing to issue an order of joint custody.

FACTS

The parties to this suit were married in 1975, and judicially separated in 1978. In the March 27, 1978 judgment of separation, the custody of the minor, Tammy Lachney, was awarded to the plaintiff. On March 20, 1979, the Juvenile Court of Iberville Parish removed Tammy from the custody of her mother and awarded temporary custody to the father, the defendant herein. On December 4, 1979, the Juvenile Court ordered that custody be reinstated with the plaintiff. Thereafter, the defendant filed a rule in the Ninth Judicial District Court seeking a change in custody. By judgment dated February 15,1980, the custody of the child was awarded to the defendant, Gordon Lachney. In the May 16, 1980 judgment of divorce, permanent custody of the child was continued in the defendant. The judgment granted the plaintiff visitation privileges on alternating weekends, alternating holidays, and for two weeks each summer.

In May of 1982, the plaintiff and her present husband, Jimmy T. Herring, moved from Louisiana to Myrtle Beach, South Carolina, where Herring is stationed with the United States Air Force. On January 5, 1983, the plaintiff filed the instant proceeding seeking an order of joint custody. The trial court refused to grant such a decree, but did extend the summer visitation privilege in favor of the plaintiff to a period of four weeks.

The record reflects that Tammy, who was seven years of age at the time this matter was tried, has resided in the home of her paternal grandparents for the great majority of her life. The testimony indicates that the home of the elder Lachneys was the primary residence of the plaintiff, the defendant and Tammy during the marriage. The defendant has continued to reside with his parents since the marital breakup. Tammy has lived continuously with her father in the home of her grandparents since February of 1980. The defendant’s mother assists her son in insuring that Tammy is properly clothed, fed, and cared for.

The plaintiff, and the witnesses who appeared in her behalf, testified to the love which Tammy has for her mother, and to the desire and ability of the plaintiff to provide for all the needs of the child. The plaintiffs husband testified that he is willing and able to assist the plaintiff in caring for the child. In sum, the record shows that both parents are able to provide a healthy and loving environment for Tammy.

JOINT CUSTODY

LSA-C.C. Art. 157 provides in pertinent part:

A.In all cases of separation and divorce, and change of custody after an original award, permanent custody of the child or children shall be granted to the parents in accordance with Article 146.

LSA-C.C. Art. 146 provides:

A. If there are children of the marriage whose provisional custody is claimed by both husband and wife, the suit being yet pending and undecided, custody shall be awarded in the following order of preference, according to the best interest of the children:
(1) To both parents jointly. The court, shall, unless waived by the court for good cause shown, require the parents to submit a plan for implementation of the custody order, or the parents acting individually or in concert may submit a custody implementation plan to the court prior to issuance of a custody decree. Such plan may include such considerations as the following:
(a) Domiciliary arrangements for the child or children.
(b) Rights of access and communication between the respective parents and the child or children.
(c) Child support, if appropriate to the economic circumstances of the parents.
(d) Any other matter deemed in the best interest of the child or children.
(2) To either parent. In making an order for custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child or children frequent and continuing contact with the noncustodial parent, and shall not prefer a parent as custodian because of that parent’s sex. The burden of proof that joint custody would not be in a child’s best interest shall be upon the parent requesting sole custody.
(3) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.
(4)To any other person or persons deemed by the court to be suitable and able to provide an adequate and stable environment.
B. Before the court makes any order awarding custody to a person or persons other than a parent without the consent of the parents, it shall make a finding that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interest of the child. Allegations that parental custody would be detrimental to the child, other than a statement of that ultimate fact, shall not appear in the pleadings.
C. There shall be a rebuttable presumption that joint custody is in the best interest of a minor child unless:
(1) The parents have agreed to an award of custody to one parent or so agree in open court at a hearing for the purpose of determining the custody of a minor child of the marriage; or
(2) The court finds that joint custody would not be in the best interest of the child.
For the purpose of assisting the court in making a determination whether an award of joint custody is appropriate, the court may direct that an investigation be conducted.
D. For purposes of this Article, “joint custody” shall mean the parents shall share the physical custody of children of the marriage, subject to any plan of implementation effected pursuant to Paragraph A of this Article, and shall enjoy the natural cotutorship of such children in accordance with Article 250. Physical care and custody shall be shared by the parents in such a way as to assure a child of frequent and continuing contact with both parents. An award of joint custody obligates the parties to exchange information concerning the health, education, and welfare of the minor child; and, unless allocated, apportioned, or decreed, the parents or parties shall confer with one another in the exercise of decision-making rights, responsibilities, and authority.
E. Any order for joint custody, or any plan of implementation effected pursuant to Paragraph A of this Article, may be modified or terminated upon the petition of one or both parents or on the court’s own motion, if it is shown that the best interest of the child requires modification or termination of the order. The court shall state in its decision the reasons for modification or termination of the joint custody order if either parent opposes the modification or termination order.
F. Any order for the custody of a minor child of a marriage entered by a court in this state or in any other state, subject to jurisdictional requirements, may be modified at any time to an order of joint custody in accordance with the provisions of this Article.
G. A custody hearing may be held in private chambers of the judge.
H. Notwithstanding any other provision of law, access to records and information pertaining to a minor child, including but not limited to medical, dental, and school records, shall not be denied to a parent because the parent is not the child’s custodial parent.

In support of her petition seeking joint custody, the plaintiff relies on the presumption of LSA-C.C. Art. 146(C), that joint custody is in the best interest of the child. However, as is stated in LSA-C.C. Art. 146(C)(2), this presumption is not applicable if the trial court finds that joint custody is not in the best interest of the child. In the instant case, the trial court found that a joint custody arrangement would not serve Tammy’s best interest. The correctness of his factual finding in this regard is the sole issue on appeal.

In child custody matters, the trial judge is afforded wide discretion in determining which arrangement will serve the best interest of the child. His determination will not be disturbed absent a manifest abuse of discretion. Fortenberry v. Fortenberry, 432 So.2d 1125 (La.App. 3rd Cir.1983). In the instant case, we find no abuse of discretion in the trial court’s conclusion that joint custody is not in the best interest of the child.

Although the legislature has determined that joint custody is the preferable arrangement, this presumption must give way to a different custody arrangement when the best interest of the child dictates such a result. In the joint custody envisioned by the legislative scheme, “physical care and custody shall be shared by the parents in such a way as to assure a child of frequent and continuing contact with both parents.” LSA-C.C. Art. 146(D), supra. Under the circumstances of this case, this purpose cannot be accomplished. In order for the parties in this case to exercise frequent and continuing contact with the child in their respective homes, it would be necessary to shuttle Tammy between Louisiana and South Carolina in such a manner as would certainly be detrimental to her best interest.

The implementation plan for the joint custody order submitted by the plaintiff to the trial court would place Tammy in the custody of the plaintiff, in South Carolina, during the school year. The plan would have Tammy in Louisiana with her father during the summer vacation. This plan would effectively remove Tammy from the stable and loving environment to which she has grown accustomed. Due to the distance between the homes of her parents, she would lose contact with her present friends and schoolmates for roughly nine months out of each year.

In our view, the judgment of the trial court continuing the custody of Tammy in the defendant is in the child’s best interest. Due to the stability of her present environment, and the infeasibility of a joint custody plan, we find no clear error in the trial court judgment.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed to plaintiff-appellant.

AFFIRMED.

      . The plaintiff does not seek sole custody in the event that joint custody is denied.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    Pattie Prather DEJEAN, Plaintiff-Appellee, v. Gantt Nicholson DEJEAN, Defendant-Appellant.
    No. 83-424.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Rehearing Denied April 3, 1984.
    Writ Granted June 1, 1984.
    See also, 446 So.2d 930.

      Pucheu, Pucheu & Pucheu, Jacque B. Pucheu, Eunice, for defendant-appellant.
    David L. Carriere, Opelousas, for plaintiff-appellee.
    Before FORET, YELVERTON and KNOLL, JJ.
   FORET, Judge.

This is a divorce action filed by plaintiff, Pattie Prather Dejean, against her husband, Gantt Nicholson Dejean. From a judgment in favor of the wife, the husband appeals. At issue on appeal is the trial judge's finding as to fault, and the propriety of the trial judge’s decision to re-open the case for additional evidence.

FACTS

Pattie Prather married Gantt Nicholson Dejean on August 26, 1967. The couple began experiencing marital difficulties which resulted in their physical separation on December 3, 1980. On December 18, 1980, Pattie filed suit for separation based on the grounds of her husband’s abandonment. Gantt reconvened, alleging cruel treatment on the part of his wife.

The wife’s separation suit, however, was subsequently dismissed when she filed for divorce on February 16, 1982, on the basis of living separate and apart for over one year. LSA-R.S. 9:301. The divorce was granted on March 23, 1982, by mutual consent of the parties, and a judgment was signed which reserved the rights of the parties to litigate fault and alimony at a future date.

On March 26,1982, a hearing was held to determine alimony and fault. Unfortunately, time was limited and, therefore, the fault issue was not reached. Nevertheless, the trial judge awarded $1150 per month to the wife as post-divorce alimony and reserved the right of the husband to litigate fault at a future date. This judgment was signed on June 7, 1982.

On June 22, 1982, a hearing was held to decide the issue of fault. After re-opening the case ex proprio motu for additional evidence, the trial court ruled that any fault of which Pattie Dejean may have been guilty was caused by her mental problems and therefore her actions were excused. Courville v. Courville, 363 So.2d 954 (La.App. 3 Cir.1978), writ refused, 365 So.2d 243 (La.1978). Thus, the wife was found not to be at fault, and therefore entitled to post-divorce alimony. A formal judgment was signed on September 14, 1982.

On September 20, 1982, Gantt filed a motion for new trial to reconsider the finding of fault, and combined therewith a rule to reduce alimony. The court rendered judgment on February 11, 1983, denying the husband’s motion for new trial, but granting him a reduction in alimony from $1150 per month to $600 per month. From that judgment, the husband has appealed, both as to the finding of fault and the amount awarded.

Several issues are presented on appeal:

(1) Whether Pattie Prather Dejean was guilty of fault; if yes,
(2) Whether Pattie’s mental problems excused her fault; if yes,
(3) Whether the trial court abused its discretion in its award of alimony.

FAULT

For purposes of post-divorce alimony, fault is synonymous with the fault grounds for separation or divorce. Boudreaux v. Boudreaux, 407 So.2d 1363 (La.App. 3 Cir.1981). In the case at bar, the husband’s reconventional demand was based on cruel treatment. Thus, to be at fault, Pattie’s cruel treatment must have been so serious as to render the couple’s living together insupportable. LSA-C.C. Article 138.

Although the trial judge found that Pattie’s mental problems were so serious as to excuse her fault, or to render it involuntary, he never reached the final issue of whether she was actually at fault. It is obvious, however, that the trial judge did feel that Pattie was at fault, else why should he have raised the issue of her mental condition, an issue which was not raised, and indeed purposely avoided by both parties. Having carefully reviewed the record, we have no hesitancy or difficulty in finding that Pattie Dejean behaved in such a manner toward her husband as to render any further living together very much insupportable.

The record shows that she demonstrated an attitude of indifference and lack of respect for her husband. She constantly compared her husband (a dentist) to her father (a physician) and belittled Gantt by telling him that her father’s occupation or profession was more important than his (Gantt’s) because her father saved lives. She also exhibited an excessively jealous nature, even to the point of becoming enraged when her husband, at a party, helped another lady remove her coat. She constantly made disparaging remarks about Gantt’s father and family, referring to his father as an alcoholic and a wife-beater.

There are other incidences in the record of acts or omissions committed by Pattie resulting in mental cruelty to her husband. Finally, on the date of physical separation, December 3, 1980, she had addressed a note to Gantt (unfortunately the note is not in evidence, but both parties admit it was written) wherein she instructed her husband on how to proceed in the art of making love to her, in what manner to touch her, hold her, etc. Indeed, she told him that if he would not agree to follow these instructions, that she would leave the matrimonial domicile. Gantt, however, countered by saying that it would be best if she would stay in the matrimonial domicile with the children, and that he would go to spend the night at his mother’s home. The parties have never lived together since.

Having concluded that the evidence in the record shows Pattie Dejean to be guilty of fault, we now turn to the issue of whether her mental problems excused her fault.

MENTAL PROBLEMS

Gantt argues that the trial judge’s actions in re-opening the case for additional evidence and then placing Pattie’s medical and psychiatric records into evidence were improper. We agree.

The record shows that the trial judge, after both parties had rested their case, re-opened the case in order to hear psychiatric testimony concerning Pattie’s past history of mental problems. He specifically wanted to hear Dr. David Regan, a psychiatrist who had treated Pattie in the past after she had returned from the Brentwood Mental Hospital in Shreveport, Louisiana. Since the good doctor was in California at the time of trial, the trial judge ordered the medical and psychiatric records into evidence over the objection of defendant’s counsel. So as not to prejudice the husband, the trial judge afforded him the opportunity to produce other psychiatric testimony or evidence.

A trial judge has the right to keep open the record if he feels that the ends of justice so require. And, his decision to do so will not be overturned unless there is a clear abuse of discretion. Yeutter v. Lewis, 334 So.2d 728 (La.App. 3 Cir.1976).

We feel that the trial court abused its discretion in this case. First, the medical records he considered, and upon which he based his decision, were pure hearsay and as such, clearly inadmissible. Secondly, the trial judge’s offer to have Pattie examined by another psychiatrist would have had very little, if any, probative value, because such an examination, necessarily, would have taken place some eighteen to twenty-four months after the alleged acts of cruel treatment. Although the trial judge had the authority to re-open the case, his actions in ordering into evidence the medical and psychiatric records were an abuse of discretion and therefore improper.

Even if we assume, however, that the records were properly admitted, we do not feel that they show that Pattie’s mental condition was so serious as to excuse her fault.

The record shows that the wife was admitted to Brentwood Hospital in Shreveport, Louisiana, on March 1, 1980, where she remained until April 18, 1980. The alleged acts of cruel treatment occurred from June through December of 1980, the parties having separated on December 3, 1980.

After her discharge from Brent-wood Hospital, the wife was treated by Dr. David B. Regan, a psychiatrist in Lafayette, Louisiana. In the May 1, 1980 report of Dr. Regan, the doctor states that the wife’s thought processes are coherent, relevant, and rational, and that her picture was not that of schizophrenia except for a rather flat look on her face. Dr. Regan’s report of May 20,1980, states that the wife had a pretty good recovery from her acute psychosis. On July 1, 1980, Dr. Regan found the wife to be “feeling good and bubbling over with good effect. Her thinking is certainly clear, coherent and relevant. She is enjoying life generally and has begun to increase her activity.” The report of July 22, 1980, states that the wife was doing well and showing good bright effect; she had enjoyed her vacation in Arkansas and was showing good mental functioning, not hypomanic and definitely not depressed. He found her on this occasion to be coherent, relevant, and rational with a bright intellect, probably in the superior range and found her judgment to be good. Later on in that same report, the doctor stated that the wife was feeling well and her effect is very good and though processes perfectly clear. Again, on October 30, 1980, the patient was doing well and on November 20, 1980, the wife was doing quite well mentally. From all the facts, we feel that although some mental problems existed, they were not so severe so as to excuse Pattie’s fault.

For the above and foregoing reasons, the judgments of the trial court granting Pat-tie Prather Dejean post-divorce alimony are reversed, vacated, and set aside, and hei demands dismissed. All costs at the trial level and on appeal are assessed against appellee, Pattie Prather Dejean.

REVERSED.

      . We note that because a finding of fault is a prerequisite to post-divorce alimony, the actions of the trial judge were highly irregular. The action of the trial judge, in this respect, however, is not challenged on appeal, and is immaterial under our disposition of the case.

      . The alimony judgment was signed on June 7, 1982. The appeal was not taken until February 18, 1983. Thus, it appears that Gantt's appeal on this issue wasn’t timely.
      Because of the unorthodox procedural methods used by the trial court, the wife's alimony judgment could have been defeated by a subsequent rendering of fault. Thus, we do not feel that it was a proper final judgment from which to appeal. In other words, the rendering of the alimony judgment did not become final until the rendering of the fault judgment on September 14, 1982. The motion for new trial and subsequent appeal after the fault judgment was therefore timely. We find that the issue of alimony is properly before us.


text:
    Pattie Prather DEJEAN, Plaintiff-Appellee, v. Gantt Nicholson DEJEAN, Defendant-Appellant.
    No. 83-425.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Rehearing Denied April 3, 1984.
    Writ Granted June 1, 1984.

      Pucheu, Pucheu & Pucheu, Jacque B. Pucheu, Eunice, for defendant-appellant.
    David L. Carriere, Opelousas, for plaintiff-appellee.
    Before FORET, YELVERTON and KNOLL, JJ.
   FORET, Judge.

For the reasons assigned this date in Dejean v. Dejean, 446 So.2d 927 (La.App. 3 Cir.1984) (our docket number 83-424, with which this instant case was consolidated at trial and on appeal), the judgment of the trial court is reversed.

All costs at the trial level and of this appeal are assessed against plaintiff-appel-lee, Pattie Prather Dejean.

REVERSED.


author: DOMENGEAUX, Judge. GUIDRY, Judge,

text:
    SUCCESSION OF Allie Lounsberry HOFFPAUIR.
    No. 83-472.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      Theall & Fontana, Gary E. Theall, Abbe-ville, for plaintiffs-appellants.
    Cooper, Ortego & Woodruff, Silas B. Cooper, Jr., Abbeville, Edward G. Saal, Jr., Gueydan, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   DOMENGEAUX, Judge.

In this succession proceeding, five of the decedent’s children, namely, Juanita Yerna, Willie Mae, Helen Lee, Velma Lurline, and Wilmer Ray filed a petition for collation, for an accounting, and a return of assets held in usufruct against their brother, Wilfred. The petitioners allege that Wilfred received an advantage (as a forced heir) of his succession share through the sales of immovable property. The petitioners claim that the sales of some Acadia and Vermilion Parish tracts (and the surviving spouse usufruct on the Vermilion tract) by Mrs. Hoffpauir to Wilfred were, in fact, disguised donations inter vivos; additionally, petitioners claim that Wilfred also received an advantage from the interest-free credit sales made to him by his mother.

After a bench trial, the district court determined that the sales were made for a fair and valid price which did not constitute disguised donations; nor were the interest-free credit sales an advantage. Therefore, no collation was required of the property (or the value thereof), or of the interest on the credit sales.

Three of the plaintiffs in the original proceedings withdrew their claim after the trial court rendered judgment in favor of the defendant. However, two of the plaintiffs, Willie Mae and Helen Lee, have sus-pensively appealed the adverse judgment. The defendant brother answered the appeal seeking payment of deposition fees.

ISSUES

Appellants contend that the trial court erred in its findings. They argue: (a) that the price paid for the sale of the Vermilion Parish property and usufruct was so low as to require collation; (b) that the no-interest credit sale was an advantage; (c) that the price paid for the sale of the Acadia Parish property was so low as to require collation; and (d) that the no-interest credit sale for that purchase was an advantage.

FACTS

In December 1962, defendant Wilfred Wayne Hoffpauir and his father Rollie Hoffpauir purchased as co-owners a 160 acre tract of farmland in Acadia Parish for $48,000.00 ($300.00 per acre). After Rollie Hoffpauir died in December 1963, Wilfred Hoffpauir wanted to purchase the tract of land to continue farming rice. On September 30, 1964, Allie Hoffpauir conveyed 40 acres, her Hi undivided interest in the Acadia Parish property, to her son, Wilfred, for $12,000.00, i.e., $300.00 per acre (the same price per acre that Rollie and Wilfred Hoff-pauir had paid). The deed was an authentic act properly recorded. The terms of the sale consisted of $1,000.00 cash paid and an $11,000.00 note payable in annual installments (with 2% interest to accrue from maturity). Mrs. Hoffpauir held a mortgage on that property. Wilfred Hoffpauir testified at trial that he paid his mother the remaining amount due the following year. He produced the cheek and the note marked “Paid,” both of which were admitted into evidence.

On January 10, 1967, Mrs. Allie Hoff-pauir sold her Hi undivided interest plus her surviving spouse usufruct over the other undivided ½ interest in certain tracts of land in Vermilion Parish to Wilfred for $37,509.15. This act of sale was properly confected and recorded. Wilfred paid his mother $2,509.15 down and executed a note for $35,000.00 (with 4% interest to accrue from maturity). The note was payable in twenty equal annual installments of $1,750.00, with the first installment due January 10, 1967. All payments have been timely made. Wilfred Hoffpauir testified at trial that he still owed some money on this last note, but had not paid it because both the property and loan were currently in dispute.

Two appraisers testified at trial as to the valuation of the land at the time the sales were made. Both appraisers’ reports were submitted into evidence. Richard Pease qualified as an expert real estate appraiser and broker on behalf of the plaintiffs. Mr. Pease, on direct examination, valued the Acadia farm property in question, i.e. 40 acres, which constituted Allie Hoffpauir’s half of the community property in full ownership at $350.00 per acre at the time of the sale. The total value amounted to $14,-346.50. On cross-examination, Mr. Pease admitted that the estimated value is actually a median value and that $300.00 per acre paid in 1964 was not a very low price.

Mr. Pease also rendered an opinion as to the value of the Vermilion farm property at the time of the sale in 1967. He stated that the undivided full ownership interest was worth $81,750.00 and that Mrs. Hoffpauir’s usufruct over the other ½ undivided naked ownership interest was valued at $34,649.57 (Mr. Pease relied upon Department of Revenue actuarial tables used for inheritance tax purposes); for a total value of $116,399.57 in 1967.

Mr. Pease also testified that he was unable to locate any comparable sales transacted for property in Vermilion Parish during 1967, so he inspected the property and used LSU Agri-Business publications; he also used local savings and loan estimates, and Federal Land Bank records to determine the price. However, defendant’s expert witness, Cecil Gremillion, who qualified as an expert real estate appraiser testified that the Vermilion farm acreage was worth between $190 and $200 per acre (for an average total value of $34,515.00). Mr. Gremillion was able to discover from the Vermilion Parish vendor-vendee indices two transactions within a year of the sale at issue involving similar farmlands; one which was adjacent to the Hoffpauir tracts and another which was in close proximity. Mr. Gremillion used these comparables, as well as interviews with local property owners, and an inspection of the farm, to formulate an estimate. Mr. Gremillion also testified that he took cognizance of the surviving spouse usufruct over the Vermilion Parish property but did not ascribe any value to it.

In written reasons for judgment, the trial court found that the plaintiffs failed to sustain their burden of proving that the credit sales, and no-interest loans made incident thereto, constituted an advantage which required collation.

COLLATION AND VALUATION

La.C.C. Art. 2444 allows forced heirs to demand collation if the transfer of immovable property has been a disguised donation.

“The sales of immovable property made by parents to their children, may be attacked by the forced heirs, as containing a donation in disguise, if the latter can prove that no price has been paid, or that the price was below one-fourth of the real value of the immovable sold, at the time of the sale.”

La.C.C. Art. 2444; Roy v. Roy, 382 So.2d 253 (La.App. 3rd Cir.1980). The transfer could also be subject to collation if the price paid was greater than 'Ath (the standard provided in La.C.C. Art. 2444) but less than fair market value based upon the provisions of La.C.C. Art. 1248.

“The advantage which a father bestows upon his son, though in any other manner than by donation or legacy, is likewise subject to collation. Thus, when a father has sold a thing to his son at a very low price, or has paid for him the price of some purchase, for [or] has spent money to improve his son's estate, all that is subject to collation.”

La.C.C. Art. 1248.

In each instance, the forced heir alleging that an advantage or extra portion has been made must prove that it has violated the equality among forced heirs in order to require collation with the resulting real or supposed return to the mass of the succession. La.C.C. Arts. 1227 and 1229. Collation is required on the basis of the value at the time of the transfer. Johnston v. Bearden, 127 So.2d 319 (La.App. 2nd Cir.1961).

The trial judge concluded that Mrs. Hoffpauir sold land to Wilfred on credit bearing no interest. This was not a situation where there was a debt due by interest, then later remitted. Rizan v. Rizan, 139 La. 364, 71 So. 581 (1916). The trial court declined to find that an interest-free credit sale automatically becomes a disguised donation subject to collation. When the court finds that consideration exceeding one-fourth of the real property of the property at the time of sale was actually paid, it is unnecessary for the court to consider the claim for collation on the theory that the transfer was a donation in disguise. Cannon v. Cannon, 244 So.2d 64 (La.App. 1st Cir.1971).

Further, the trial judge found that plaintiffs’ own expert witness only confirmed that defendant paid fair market value for the Acadia Parish farm. Therefore, plaintiffs failed to establish that collation was required. As to the Vermilion Parish property, the trial judge found that Mr. Gremil-lion, expert appraiser on behalf of the defendant, offered a credible opinion as to the value of the Vermilion Parish property and on that basis found that the property was not under-valued in the credit sale. The trial judge further held that this finding is supported by the fact that defendant was buying an undivided interest. Therefore, since the price paid for each sale of immovable property was well within the fair market value as estimated by the court, plaintiffs’ suit was dismissed with court costs (including expert witness fees) assessed against them.

The trial court is granted a great deal of discretion in determining the value of land; this discretion applies to any case involving the value of real estate. Successions of Mack, 413 So.2d 642 (La.App. 1st Cir.1982). We find no manifest error in the court’s handling of the property valuation.

Plaintiffs claim that the price paid for the Vermilion tract included remuneration for the surviving spouse usufruct, thereby reducing the actual price paid for the immovable property.

Defendant urges that the valuation standard for a disguised donation cannot be applied in this instance because the value of the usufruct sold (which was subject to termination upon death or remarriage of the vendor-usufructuary) is too speculative and conjectural; and that a certain value of the interest sold cannot be ascertained.

The trial court, in considering the issue of the purchase of the usufruct, found that there was no active market for such a commodity; and consequently he concluded that the usufruct did not have a value which would necessitate collation.

Regardless of the trial judge’s finding on this issue, we conclude that the price paid by defendant was sufficient, irrespective of the value of the usufruct. See Parker v. Rhodes, 260 So.2d 706, 714-715 (La.App. 2nd Cir.1971), on rehearing, 260 So.2d 716, 718-719 (La.App. 2nd Cir.1972); A. Yianno-poulos, Personal Servitudes note 333, § 17 (La.Civ.L. Treatise Vol. 3, 2d ed. 1978).

We find that there was no disguised donation, based on an evaluation of the property from the evidence presented at trial. Therefore, we find that no collation is required.

Defendant thus paid more than tilth the market value of the land, i.e., approximately the exact fair market value, rendering the claim under La.C.C. Arts. 2444 and 1248 invalid.

DECREE

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed against appellants.

AFFIRMED.

GUIDRY, J., concurs and assigns reasons.

GUIDRY, Judge,

concurring.

I cannot agree with the trial court’s conclusion that the sale of a usufruct has no value which would necessitate collation. Quite to the contrary, although a surviving spouse’s usufruct may be of unknown duration, subject to termination on death or re-marriage, it has some value and a transfer thereof, without consideration, is, in my view, subject to collation. In the instant case, however, considering the valuation of the Vermilion Parish property in the year 1967, as ascribed by Mr. Gremillion, who I likewise consider to be the most credible of the experts, the price paid by defendant clearly exceeded one-fourth of the real value of the land together with the usufruct and was not a “very low price”. Under such circumstances, defendant, as a result of such sale, received no advantage over his co-heirs which requires collation. For these reasons, I respectfully concur.

      . Part of the conventional usufruct consisted of the use and enjoyment of movable property, both consumable and nonconsumable things, e.g., cash-on-hand, household furniture, and other personal property. La.C.C. Arts. 535, 536, 537.
      La.C.C. Art. 538 provides:
      "If the things subject to the usufruct are consumables, the usufructuary becomes owner of them. He may consume, alienate, or encumber them as he sees fit. At the termination of the usufruct he is bound to pay to the naked owner either the value that the things had at the commencement of the usufruct or deliver to him things of the same quantity and quality."
      La.C.C. Art. 539 provides:
      "If the things subject to the usufruct are nonconsumables, the usufructuary has the right to possess them and to derive the utility, profits, and advantages that they may produce, under the obligation of preserving their substance.
      He is bound to use them as a prudent administrator and to deliver them to the naked owner at the termination of the usufruct.”
      See La.C.C. Arts. 568 and 628.
      The issue of usufructuary accounting is not on appeal because the parties entered into a stipulation at the commencement of trial which was incorporated into the judgment of the district court. The agreement established the value of the movable property ($27,626.54) in Mrs. Hoffpauir’s succession. The agreement also established that the distribution of the movable property would devolve accordingly: one-half of the determined amount is to be distributed to the forced heirs by the father’s intestate succession, not by the testament and heirship of the de cujus herein which named Wilfred Hoffpauir and his daughter as legatees.

      . The sale of the Vermilion property contained several contiguous tracts of land totalling 177 acres.

      . As to defendant’s request for deposition fees incurred during pretrial preparation (whether such depositions were introduced into evidence or not), we cannot determine the existence or nature of such alleged expenses from the record. Here we are affirming the judgment of the trial court which assessed all costs in this matter (including expert witness fees and any other court costs incidental to this action) against plaintiffs.


author: DOMENGEAUX, Judge.

text:
    LINCOLN BIG THREE, INC., Plaintiff-Appellee, v. DANIELS WELDING ELECTRICAL AND CONSTRUCTION COMPANY, INC., Defendant-Appellant.
    No. 83-478.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      Jones, Jones & Alexander, J.B. Jones, Jr., Cameron, for defendant-appellant.
    John B. Williams, Baton Rouge, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Lincoln Big Three, Inc., (Lincoln), filed suit against Daniels Welding Electrical and Construction Company, Inc., (Daniels), to recover $11,511.84 allegedly due for various materials and supplies purchased by defendant on an open account, including industrial welding gases. Plaintiff claimed that the amount sought included past due rental fees (demurrage charges) on cylinders in defendant’s possession which belonged to Lincoln but had not been returned; the amount also reflected the cost of the cylinders in the event defendant failed to return the containers to Lincoln’s place of business. Additionally, plaintiff alleged that defendant owes $1,356.50, the unpaid balance on a promissory note held by Lincoln. The note was executed by Daniels in connection with the sale and chattel mortgage of a welding machine. After a trial on the merits, judgment was rendered in favor of Lincoln. Daniels has appealed suspensively. We affirm.

FACTS

The primary dispute in this case concerns the legal status of the steel cylinders. Lincoln and Daniels Welding began a business relationship in 1973. Lincoln, a domestic corporation, sells welding gases (oxygen, acetylene, and argon) which are contained in the cylinders. Lincoln delivers the filled containers by truck to its customers; the containers remain the property of Lincoln as specified in each shipping order form which sets out the quantity, price, and terms of each order. The invoice also provides for a monthly rental charge for all cylinders retained by the customer longer than thirty days. The invoice also serves as the cylinder record. This contract establishes the custom and use between buyer and seller in the welding supplies industry.

Lincoln also picks up empty cylinders from customer work yards or shipping docks (if the cylinders are taken offshore). Lincoln’s truck driver issues a receiving report, signed by the customer, for all cylinders returned. This service is a courtesy afforded the customer since the contract requires the customer to return the cylinders to Lincoln’s place of business.

Daniels Welding argued that it is not responsible for any unreturned cylinders. Defendant contends that Lincoln’s drivers had picked up cylinders from its work yard without properly crediting its account. Daniels makes reference to a number of “surplus bottles” on hand at plaintiff’s store in Lake Charles which have never been credited to any account whatsoever. While Lincoln admits that occasionally some cylinders are picked up under circumstances that prevent identification of the customer entitled to credit, it contends that the surplusage has been exaggerated by defendant and further points out that at the time it filed its petition against defendant, Daniels had thirty-nine unreturned cylinders with demurrage owed covering an extended period of time. Defendant further claims that its own list of serial numbers on cylinders it received substantiates plaintiff’s imprecise and irresponsible record-keeping which has resulted in erroneous demurrage fees and shortages. However, plaintiff points out that there were never sufficient “surplus bottles” to compensate for defendant’s shortage; nor do the serial numbers indicate any differential because the serial numbers never had been recorded on the shipping invoices when cylinders of gas were delivered to customers.

As to the promissory note, the plaintiff credited all installment payments made by defendant; plaintiff corrected defendant’s sales account when payments were mistakenly credited to defendant’s open account.

The trial judge determined that Daniels Welding was indebted to plaintiff for both the open account and the note in default. He awarded Lincoln Big Three $11,511.84 (with legal interest from date of judicial demand) which amount represented demur-rage fees, value of the cylinders and unpaid materials; and $1,356.50 (with interest fixed at 8% per annum from September 17, 1978, plus 33⅛% of the principle and interest as attorney’s fees) representing the balance on the promissory note. All costs were assessed to defendant.

The judgment of the district court further recognized Lincoln’s vendor’s lien and chattel mortgage and privilege on the Lincoln gas driven, skid-mounted welding machine.

ISSUE

Defendant’s sole contention on appeal is that the trial judge erred in holding that custom and usage applied to the relationship of depositor and depositary with regard to the delivery and return of the cylinders.

LOAN FOR USE

While some aspects of this system of delivery and return may resemble deposit, the proper characterization of the relationship between Lincoln and Daniels Welding is a loan for use, set forth in La.C.C. Art. 2891:

“There are two kinds of loans:
The loan of things, which may be used without being destroyed;
And the loan of things, which are destroyed without [by] being used.
The first kind is called loan for use or commodatum.
The second kind is called loan for consumption or mutuum.” La.C.C. Art. 2891.

A Joan for use is defined by the provisions of La.C.C. Art. 2893:

“The loan for use is an agreement, by which a person delivers a thing to another, to use it according to its natural destination, or according to the agreement, under the obligation on the part of the borrower, to return it after he shall have done using it.” La.C.C. Art. 2893.

The lender remains the owner of the thing lent. La.C.C. Art. 2895. In the case sub judice, this was expressly stated in the shipping invoice. Further, the loan for use is essentially gratuitous. La.C.C. Art. 2894. The charge imposed on Daniels was a demurrage, i.e. an amount, in the nature of stipulated damages, that was fixed by contract as remuneration to the owner of the cylinders for detaining them beyond the number of free days (30) allowed by the contract. Therefore, the use of the cylinders by Daniels remained essentially gratuitous.

There are certain obligations of the borrower which are incident to a loan for use. Since the borrower is using the movable, he must not only preserve it but must preserve it in working condition.

“The borrower is bound to keep and preserve, in the best possible order, the thing lent. He can use it only in the manner for which it is fitted by its nature, or which is allowed by the agreement, under the penalty of damages.”

La.C.C. Art. 2898; see Comment, Bailment and Deposit in Louisiana Law, 35 La.L.Rev. 825, 833-834 (1975).

The consequences of delay or loss result in liability imposed on the borrower. La. C.C. Art. 2899.

The trial judge determined that Lincoln Big Three sustained the burden of proving that defendant understood and accepted the terms of the contract, and that Lincoln also established that a certain number of cylinders were unaccounted for by Daniels. Furthermore, the trial judge concluded that Daniels failed to support its contention that there existed a discrepancy between appellant’s records and Lincoln’s records which appellant claims indicates error in the delivery and return system. We find no manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The trial judge correctly held that Daniels Welding was bound to plaintiff for the rental (demurrage) fees, the value of the cylinders, and the remaining unpaid installments on the promissory note.

DECREE

For the above and foregoing reasons, the judgment of the trial court is affirmed, with appellate costs assessed against appellant, Daniels Welding Electrical and Construction Company, Inc.

AFFIRMED.

      . These serial numbers are stamped on every cylinder, but are not utilized by Lincoln for any record-keeping purpose.

      . This is an erroneous translation from the French text of the article, i.e., "in the best possible order” should read "as a prudent administrator.”; See editorial comment under La.C.C. Art. 2898.

      . La.C.C. Art. 2899 provides:
      "If the borrower employs the thing to another use or for a longer time than has been agreed on, he shall be liable for the loss which may happen, although the same might have happened by chance.”


author: LABORDE, Judge.

text:
    Roy J. PIPER, Plaintiff-Appellee, v. CENTRAL LOUISIANA ELECTRIC COMPANY, INC., Defendants-Appellants. Donald H. BRADLEY, Plaintiff-Appellee, v. CENTRAL LOUISIANA ELECTRIC COMPANY, INC., Defendants-Appellants.
    Nos. 83-493, 83-494.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      Patrick J. Briney of Jeansonne, Briney & Goudelocke, Lafayette, for defendants-appellants-appellees.
    Gist, Methvin, Hughes & Munsterman, John W. Munsterman, Alexandria, for defendant-appellee.
    Provosty, Sadler & deLaunay, Albin A. Provosty, Alexandria, for defendant-appel-lee-appellant.
    James T. Trimble, Jr. and Alonzo P. Wilson of Trimble, Percy, Smith, Wilson, Foote & Walker, and Assoc., Alexandria, for defendants-appellees-appellants.
    Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, for defendants-appellees.
    Before CUTRER, LABORDE and KNOLL, JJ.
   LABORDE, Judge.

Roy J. Piper and Donald H. Bradley, plaintiffs, instituted individual suits against Central Louisiana Electric Company, Inc., (CLECO), defendant, following electrical injuries received by them allegedly caused by a defective utility pole owned by defendant. They were employees of Southern Cable Company, in the course of erecting transmission lines for Evangeline Cable Television, Inc., (Evangeline). In the course of this proceeding, these separate actions were consolidated. Pursuant to an indemnification agreement in a Pole Rental Agreement Contract with Evangeline, CLE-CO subsequently filed a third party claim against Evangeline and Insured Lloyds (Lloyds), Evangeline’s insurer, for indemnification should CLECO be held liable. Insured Lloyds denied coverage under the terms of the insurance policy issued to Evangeline. Evangeline sued Lloyds, its insurer, for failure to honor the claim made by CLECO and in a separate third party action, sued Perron Insurance Agency, Inc. (Perron), insurance agent, for failing to place the contractual indemnification coverage with Lloyds should the court find that Lloyds is not liable under the policy. Lloyds filed a motion for summary judgment against CLECO and Evangeline alleging that as a matter of law the issued policy did not provide Evangeline with contractual liability indemnification coverage. The trial court granted the same and dismissed the third party demands against Lloyds. Neither CLECO nor Evangeline appealed the trial court judgment. Perron now effects this devolutive appeal contending that Lloyds should not have been dismissed since the Pole Rental Agreement Contract is an “incidental contract” for which the Lloyds’ policy provides indemnification coverage. We agree and therefore reverse.

FACTS

This consolidated action arises out of plaintiffs’ attempt to recover damages for personal injuries sustained on May 19, 1981, when they both suffered serious electrical burns. The accident occurred while the plaintiffs were working on a utility pole in the course of placing and removing cable television lines for Evangeline. The accident was allegedly precipitated by a defective cross arm on one of the poles, all of which were owned by CLECO. At the time of the accident, Bradley and Piper were employees of Southern Cable Company, engaged by Evangeline to erect the lines.

Evangeline executed a Pole Rental Agreement Contract with CLECO, acquiring from them the right to attach cable television transmission lines to their utility poles. Paragraph 11 of the contract contains a contractual indemnity clause shielding CLECO from liability arising out of Evangeline’s use of the utility poles. CLE-CO therefore filed a third party demand against Evangeline under paragraph 11 and against Lloyds, asserting that the insurance policy issued by Lloyds contained contractual indemnity coverage which would satisfy CLECO’s claim against Evangeline. Lloyds denied such coverage. Evangeline therefore filed a third party claim against Lloyds, its insurer, and Per-ron, the insurance agent of Lloyds. Evangeline contends that there is contractual liability coverage under the policy to satisfy CLECO’s claim, and alternatively, if there is not, then Perron, Evangeline’s insurance agent, is liable for failing to place such coverage with Lloyds.

A motion for summary judgment was filed on behalf of Lloyds asserting that the claims of CLECO and Evangeline should be dismissed since the policy generally excluded contractual liability coverage. The trial court granted the motion and dismissed the Evangeline and CLECO third party claims against Lloyds. Subsequently, CLECO entered into a settlement agreement with plaintiffs, Bradley and Piper, reserving its rights against Evangeline.

Perron now appeals the trial court dismissal of Lloyds (the insurer) contending that the Pole Rental Agreement between CLECO and Evangeline (the insured) was an “incidental contract” within the meaning of Lloyds’ policy which would provide for" liability coverage in this instance.

We previously denied Lloyds’ motion to dismiss this appeal. Piper v. Central Louisiana Elec. Co., 437 So.2d 997 (La.App. 3rd Cir.1983) and Bradley v. Central Louisiana Elec. Co., Inc., 437 So.2d 999 (La.App. 3rd Cir.1983). We held that Perron is an aggrieved and interested party, even though not a party to the summary judgments, since Evangeline maintains a third party demand against Perron, alleging that Perron is liable for Evangeline’s losses in event Lloyds is not liable under the insurance policy.

ISSUE

The issue presented on appeal is whether the insurance policy, issued by Lloyds, contains provisions which shield and insure Evangeline, the insured, from claims arising out of a contractual liability indemnity agreement contained in the Pole Rental Agreement Contract with CLECO.

POLICY LIMITATIONS

The policy issued by Lloyds to Evangeline clearly disclaims policy coverage for losses and liability assumed by the insured, Evangeline, under any contract or agreement with a third party. However, within the sub-part of this same policy provision, there is an exception which provides coverage for liability assumed by the insured, Evangeline, arising out of “incidental contracts” with third parties. The policy defines an incidental contract as follows:

“ ‘incidental contract’ means any written (1) lease of premises, (2) easement agreement, except in connection, with construction or demolition operations on or adjacent to a railroad, (3) undertaking to indemnify a municipality required by municipal ordinance, except in connection with work for the municipality, (4) sidetrack agreement, or (5) elevator maintenance agreement;” (Emphasis Added)

Accordingly, if the Pole Rental Agreement Contract between CLECO and Evangeline is an incidental contract, then the trial court erred in granting the summary judgments, holding that the Lloyds’ policy did not provide contractual liability coverage in favor of Evangeline.

The Pole Rental Agreement Contract dated October 24, 1978 recites in its preamble that Evangeline proposes to furnish television service to the residents of Mam-ou, Ville Platte and surrounding rural areas and desires to erect and maintain transmission lines by attaching them to poles owned by CLECO. CLECO consents to providing Evangeline space on its poles to make the attachments. Paragraph 8 of the rental agreement stipulates that Evangeline shall pay an annual rental rate of $3.70 per attachment for the space on the pole and that the initial term of the rental agreement shall be three years to be continued thereafter until terminated, in writing, by either party. Paragraph 25 provides that as additional consideration for Evangeline’s use of CLECO’s poles it will be obliged to purchase its electric power from CLECO.

It is Perron’s contention that the Pole Rental Agreement Contract is an “incidental contract” as defined by Lloyds’ policy whereby CLECO consents to lease to Evangeline, for a fixed period of time, and for fixed and substantial consideration, space on its poles to make the necessary line attachments.

In determining the true character of the Pole Rental Agreement Contract, it is first necessary to determine what, if any, significance is to be attached to paragraph 19 of the agreement which stipulates: “Licensee’s rights therein shall be and remain a mere license.”

Lloyds contends, that since CLECO, as the author of the instrument, chose to label the contract a “license” as opposed to an easement or lease, it is therefore, not an “incidental contract” for which Lloyds’ policy provides contractual liability coverage. We disagree.

The substance and content of the written contract is replete with language and terms which indicate that CLECO intended to lease space on the utility poles to Evangeline, while reserving certain rights and conditioning the enjoyment or use. The substance of the written contract therefore conflicts with the virtually unknown common law notion and label of “license”. This conflict results in ambiguity making it difficult for the parties to determine the species and import of the contract. It is well established that anything doubtful in agreements must be resolved by ascertaining the true intent of the parties as opposed to adhering to a literal sense of the words. LSA-C.C. art. 1950; Dockson Gas Co. v. S. & W. Construction Co., 12 So.2d 847 (La.App. 2nd Cir.1943); Cameron Meadows Land Co. v. Bullard, 348 So.2d 193 (La.App. 3rd Cir.1977); Ericksen, Krentel & Barré v. Pizzolato, etc., 432 So.2d 386 (La.App. 1st Cir.1983). Therefore, the intent of the parties, CLECO and Evangeline, may not be measured or determined by attributing undue weight to the common law label placed on the contract. Rather, we must examine the substance and express terms of the contract in light of the Louisiana Civil Code in order to determine the true import and species of the contract engaged by the parties, whether it be innominate or classified in the Civil Law. Liberty Farms v. Miller, 216 La. 1023, 45 So.2d 610 (1950); American Bank and Trust v. Louisiana Sav. Ass’n, 386 So.2d 96 (La.App. 3rd Cir.1980).

Perron contends that the Pole Rental Agreement Contract is a lease. We agree. LSA-C.C. art. 2669 defines a lease as a synallagmatic contract, to which consent alone is sufficient and by which one party gives to the other the enjoyment of a thing at a fixed price. A contract of lease must contain evidence of a “thing”, “price” and “consent”. Moreover, the lease of a “thing” is particularly governed by LSA-C.C. art. 2674 which provides:

“Art. 2674. Leasing of things
To let out a thing is a contract by which one of the parties binds himself to grant to the other the enjoyment of a thing during a certain time, for a certain stipulated price which the other binds himself to pay him.”

In this instance, the Pole Rental Agreement Contract executed by CLECO and Evangeline is for a definite thing, the right of Evangeline to make attachments to CLECO’s poles for a term of three years. Further, there is a stipulated price of $3.70 per attachment, plus Evangeline’s agreement to purchase its electrical power from CLECO. For these reasons, we hold that the Pole Rental Agreement Contract is a lease and will therefore be treated as such for purposes of determining whether it is an incidental contract under the Lloyds’ policy.

Lloyds further contends that the policy definition of “incidental contracts” succinctly states, “lease of premises” for which a utility pole is not a premises. We disagree. The term “premises” is a very general and purely descriptive label used to define various localities including a room, building, definite area or a distinct portion of real estate or its appurtenances. Blacks Law Dictionary, 5th Edition, page 1063. We hold that the Pole Rental Agreement Contract represents the lease of specific premises, namely, the area or distinct portion of an immovable appurtenance, i.e., utility pole.

In order to provide its customers with television services, Evangeline entered into the Pole Rental Agreement Contract so that it could string necessary wire and cable. As an incident to the business, Evangeline must either erect its own poles or rent existing poles from CLECO or some other utility. Therefore, by its very nature, the contract between the parties is incidental to Evangeline’s business.

Having found the contract between Evangeline and CLECO to be a lease within the meaning of the Civil Code, and having found the contract to be a necessary incident to Evangeline’s business, we hold the Pole Rental Agreement Contract to be an incidental contract within the meaning of the policy issued by Lloyds to Evangeline. Accordingly, the clear provisions of the Lloyds’ policy provide Evangeline with coverage for claims made by CLECO against Evangeline arising out of the indemnification clause (paragraph 11) of the Pole Rental Agreement Contract.

For the above and foregoing reasons, the summary judgment of the trial court dismissing Insured Lloyds from the third party demands of CLECO and Evangeline is hereby reversed and the matter is remanded for further proceedings. All costs of the motion for summary judgment and this appeal are assessed to appellee, Insured Lloyds; other costs to await final disposition.

REVERSED AND REMANDED.


author: YELVERTON, Judge.

text:
    Kenneth Lee RICHARD, Plaintiff-Appellant, v. WEILL CONSTRUCTION COMPANY, INC. & Kenhar Industries, Ltd., Defendants-Appellees.
    No. 83-507.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Writ Denied May 4, 1984.

      Gachassin and Capretz, Susan Severance, Kraft, Andrus & Preis, Ralph Kraft, Lafayette, for defendants-appellees.
    C. Michael Hill, Lafayette, for plaintiff-appellant.
    Before FORET, DOUCET and YELVER-TON, JJ.
   YELVERTON, Judge.

This appeal is by the plaintiff, Kenneth Richard, contesting a summary judgment dismissing his tort suit against a defendant, Weill Construction Company, Inc. We affirm.

The summary judgment question arose because of the following circumstances. Weill contracted with Our Lady of Lourdes Hospital of Lafayette in 1981 for the erection, construction and completion of additions and alterations to the hospital. Weill as the general contractor was to furnish all labor, materials, tools and equipment necessary to perform the contract. On March 12, 1981, Weill entered into a subcontract with Aristile LeBlanc & Sons, Inc. whereby Aristile LeBlanc was to furnish and install all items of plumbing, storm drainage, hearing, ventilation, air conditioning and excavation and backfill. The plaintiff was an employee of Aristile LeBlanc. On September 28, 1981, plaintiff was required to aid in the unloading of certain equipment to be used at the hospital site. While an evaporation coil was being lifted by a fork, the forklift broke and the coil fell on plaintiff causing injuries. The forklift was owned and operated by Weill.

The plaintiff brought the present tort suit against Weill and Kenhar Industries, Inc., the installer of the fork assembly on the forklift. Weill filed a motion for summary judgment alleging there is no genuine issue as to any material fact concerning its relationship to the parties and that, as a matter of law, it is entitled to judgment because of the tort immunity afforded to statutory employers pursuant to LSA-R.S. 23:1032. The trial judge granted summary judgment in favor of Weill and the appropriateness of that judgment is the only issue on appeal.

The Louisiana Supreme Court in Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981) stated:

“[4-6] A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.C.C.P. art. 966. Because the mover has the burden of establishing that no material factual issue exists, inferences to be drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Mashburn v. Collin, 355 So.2d 879 (La.1977). To satisfy his burden the mover must meet a strict standard by a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. Adickes v. S.H. Kress & Co., supra; Sartor v. Arkansas Nat. Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967 (1944). The papers supporting mover’s position are closely scrutinized, while the opposing papers are indulgently treated, in determining whether the mover has satisfied his burden. Adickes v. S.H. Kress & Co., supra; 6 Moore’s Federal Practice, § 56.15[3].”

Plaintiff bases his appeal on the contention that Weill failed to meet its burden of showing that the work being done by plaintiff, at the time of his accident, was within the scope of Weill’s trade, business or occupation so as to establish statutory employer status under the worker’s compensation law. Plaintiff contends that this presents a material fact question which can only be resolved by a trial on the merits. Weill, on the other hand, argues that it is not necessary that it show the plaintiff was engaged in Weill’s respective trade, business or occupation, but rather it was sufficient to show that Weill had contracted to do the work at Our Lady of Lourdes Hospital and had subcontracted the actual performance of part of the work to plaintiff’s employer. Defendant cites LSA-R.S. 23:1032 and Barnhill v. American Well Service and Salvage, 432 So.2d 917 (La.App. 3rd Cir.1983) in support of its argument.

LSA-R.S. 23:1032, in part, provides:

“The rights and remedies herein granted to an employee or his dependent on account of an injury, or com-pensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word ‘principal’ shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to yerform and contracts with any person for the execution thereof.’’ (emphasis supplied)

In interpreting LSA-R.S. 23:1032 this court in Barnhill, supra, held that a principal is immune in tort, and liable in worker’s compensation, any time the principal contracts to do any work, and then contracts with another party for the performance of the work.

In the present case, plaintiff’s petition clearly reveals that Weill was the general contractor on the job where plaintiff was working at the time of the accident and that his immediate employer, Aristile Le-Blanc, was performing the work as a subcontractor of Weill. The affidavit of Leopold Weill, Jr., the President of Weill Construction Company, Inc., shows that Weill entered into a contract with Our Lady of Lourdes Hospital in 1981 to furnish all labor, materials and equipment needed for the erection, construction and completion of the additions and alterations to the hospital as per the plans prepared by the hospital architects. The affidavit further shows that on March 12, 1981, Weill subcontracted with Aristile LeBlanc to furnish all the labor, materials and equipment needed for the furnishing and installation of the plumbing, storm drainage, heating, ventilation, air conditioning, and excavation and backfill as per the plans prepared by the hospital architects. The existence of the general contract and the subcontract are not disputed by appellant.

It is clear from the undisputed facts that the work being performed by plaintiff at the time of the accident was in furtherance of Aristile LeBlanc’s contractual obligation to Weill. Plaintiff’s work was also part of the contractual obligations which Weill had with Our Lady of Lourdes Hospital. The contractual obligations existing between Weill and Aristile LeBlanc subjects the general contractor (Weill) to liability for worker’s compensation to Aristile Le-Blanc’s employees. Weill is therefore immune from tort liability. LSA-R.S. 23:1032 and R.S. 23:1061; Barnhill, supra.

There is no issue of material fact as to this position. The affidavits and other documents fully support the trial court’s conclusion that Weill’s motion for summary judgment should be granted.

For the reasons assigned the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


text:
    William Hugh YOUNGBLOOD and Specialty Sound, Inc., Plaintiffs-Appellants, v. Billy PENDLETON and the Estate of Marsha Pendleton, Defendants-Appellees.
    No. 83-510.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Daniel E. Parker, Monroe, for plaintiffs-appellants.
    Thomas, Dunahoe & Gregory, G.F. Thomas, Jr., Natchitoches, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   GUIDRY, Judge.

The plaintiffs, William Hugh Youngblood and Specialty Sound Company, Inc., seek to recover from the defendants, Billy Pendle-ton and the Estate of Marsha Pendleton, an amount exceeding $52,000.00 owed the plaintiffs by Specialty Sound Company of Natchitoches, Inc. The plaintiffs’ suit is grounded on an alleged oral promise by the Pendletons to guarantee the debts of Specialty Sound Company of Natchitoches, Inc. The defendants filed an exception of no cause of action, urging that, because parol evidence is inadmissible to prove a promise to pay the debt of a third person, the plaintiffs’ petition fails to state a cause of action. The trial court sustained the exception and dismissed the suit. The plaintiffs appeal.

FACTS

In March of 1979, Billy and Marsha Pen-dleton met with William Hugh Youngblood, in his individual capacity and as president and agent of Specialty Sound Company, Inc., to discuss the terms and conditions of a franchise agreement whereby they would utilize the goodwill, business expertise and product lines of Specialty Sound Company in the organization and operation of a business to be established in Natchitoches and to be known as Specialty Sound Company of Natchitoches, Inc. On June 14, 1981, Specialty Sound Company, Inc., Specialty Sound Company of Natchitoches, Inc., and Billy Pendleton, as the representative of Specialty Sound Company of Natchitoches, Inc., entered into that franchise agreement.

On May 3, 1983, when Specialty Sound Company of Natchitoches, Inc. filed for bankruptcy, it owed over $52,000.00 to the Specialty Sound Company, Inc. and/or William Hugh Youngblood. This suit was brought against Billy Pendleton and the Estate of Marsha Pendleton, who had died. In their petition, the plaintiffs claimed that the Pendletons had personally guaranteed the payment of the debts of the Specialty Sound Company of Natchitoches, Inc.

EXCEPTION OF NO CAUSE OF ACTION

It is axiomatic that when considering an exception of no cause of action, the court will accept as true all well pleaded allegations in the plaintiffs’ petition. Landry v. Puritan Ins. Co., 422 So.2d 566 (La.App. 3rd Cir.1982); Elliott v. Aetna Casualty and Surety Company, 387 So.2d 1383 (La.App. 3rd Cir.1980), writ denied, 393 So.2d 747 (La.1980). In the instant case, we have examined the petition along with the attached franchise agreement made a part thereof, and find that the petition fails to state a cause of action.

The written franchise agreement in question contains no agreement by the Pen-dletons to guarantee the debts incurred by Specialty Sound Company of Natchitoches, Inc. The plaintiffs’ petition relies solely on alleged oral promises by the Pendletons. The issue therefore turns on whether parol evidence may be admitted to prove the existence of the alleged oral promises. If the promise of the Pendletons may not be proved by competent evidence, the petition clearly fails to state a cause of action.

LSA-C.C. Art. 2278 provides in pertinent part:

“Parol evidence shall not be received:
3. To prove any promise to pay the debt of a third person....”

Parol evidence may not be used to establish suretyship under LSA-C.C. Art. 3035 et seq., nor the promise to pay the debt of another under LSA-C.C. Art. 1890 and 1902. Altex Ready-Mixed Concrete Corp. v. Employers Commercial Union Ins. Co., 308 So.2d 889 (La.App. 1st Cir.1975), writ denied, 312 So.2d 872 (La.1975); Seashell, Inc. v. Simon, 398 So.2d 99 (La.App. 3rd Cir.1981).

The plaintiffs contend that there is an exception to the rule that parol evidence is inadmissible to prove a promise to pay the debt of a third person in those instances where the promise is prompted by a pecuniary or business motivation on the part of the promissor. They urge that Billy Pendleton had a pecuniary or business motivation in promising to pay the debts of Specialty Sound Company of Natchitoches, Inc., and that parol evidence would thus be admissible to prove such promise.

In Seashell, Inc. v. Simon, supra, we stated that the pecuniary or business motivation exception applies only in those instances where the promisor by promising to pay the debt of a third person, assumes a primary obligation, rather than a collateral or secondary obligation. Showing that the promisor had a pecuniary or business motivation may be a fact to be considered, but the mere existence of such motivation is not controlling. The determinative inquiry is whether the obligation is primary or collateral. Star Sales Company v. Arnoult, 169 So.2d 178 (La.App. 4th Cir.1964); Kemp Furniture Company v. Murrell, 227 So.2d 659 (La.App. 3rd Cir.1969); Seashell, Inc. v. Simon, supra.

In the instant case, plaintiffs’ petition clearly indicates that the promise of the Pendletons to pay the debts of Specialty Sound Company of Natchitoches, Inc. was a collateral obligation in the nature of sure-tyship. The petition alleges that the Pen-dletons had orally agreed to “personally guarantee any debts due to Specialty Sound Company, Inc. or William Hugh Youngblood, by Specialty Sound Company of Natchitoches, Inc.” The franchise agreement, made a part of the plaintiffs’ petition by reference, clearly shows that Specialty Sound Company of Natchitoches, Inc. was the primary obligor for all the obligations of the franchisee. The franchise agreement contains the signature of Billy Pendleton, but only in his capacity as representative of Specialty Sound Company of Natchitoches, Inc.

Because the alleged promise by the Pen-dletons is a secondary obligation, parol evidence may not be used to prove its existence. Since the plaintiffs’ suit is based entirely on the alleged oral promises, the plaintiffs’ petition fails to state a cause of action.

For the above and foregoing reasons, the judgment of the trial court sustaining the exception of no cause of action is affirmed. All costs are assessed to plaintiffs-appellants.

AFFIRMED.


text:
    SUCCESSION OF Colin CAMERON.
    No. 83-514.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      Samuel W. Ethridge, Kenner, for plaintiff-appellant.
    Robert L. Kennedy, Colfax, for defendant-appellee.
    Before FORET, DOUCET and YELVER-TON, JJ.
   YELVERTON, Judge.

This is an appeal from a succession- proceeding still under administration. The trial court made three rulings in favor of the administrator of the succession and against Edith Cameron Dunkle, one of the heirs. It is from these rulings that Edith Dunkle appeals. With but one modification we substantially affirm the judgment of the trial court and remand the succession for continued proceedings.

On August 9, 1980, Colin Cameron died in Grant, the parish of his domicile, survived by his two brothers, Donald and Edmund Cameron, and his sister, Edith Cameron Dunkle. On September 9, 1980, Donald Cameron was appointed administrator of the succession. ■ About a year and a half later Edith Cameron Dunkle filed the motions which produced the rulings which form the basis of this appeal. The three rulings complained of are: (1) the dismissal of a Motion to Remove the Administrator, (2) the homologation of a tableau of distribution, and (3) the dismissal of appellant’s “Opposition to Accounting.” We will discuss each ruling in turn.

Dismissal of Motion to Remove Administrator

Mrs. Dunkle was thwarted in her efforts to be heard on this motion a number of times, all for good procedural reasons. Initially she tried to put on evidence about issues not pleaded. In order to be heard on these issues, she requested and obtained a continuance. She amended the motion and was met by an exception of vagueness. She amended the motion and was met by an exception of vagueness. She amended again and was still faced with an exception of vagueness. This time the trial court ordered her to file an amending motion curing the vagueness within 15 days or suffer dismissal of the motion. She filed a timely amending pleading but, whether by oversight or otherwise, this document was an exact replica of the second amending pleading and accomplished nothing. After 15 days expired the trial court dismissed the motion and that is where Mrs. Dunkle’s attempt to remove the administrator stands now.

In considering whether the trial court erred in granting the administrator’s exception of vagueness, we have examined appellant’s rule to remove the administrator as well as the three amending rules. We conclude that the trial court properly sustained the dilatory exception. Several of the allegations in the first and second amending rules were vague. The trial court properly ordered the plaintiff to amend her rule. LSA-C.C.P. art. 933.

We also find that the trial court correctly dismissed the motion when it was not amended. When plaintiff merely filed an exact copy of her previous allegations as her third amending rule, this was not an amendment. It was within the discretionary power of the trial court in enforcing its lawful orders to dismiss appellant’s rule. See Jenkins v. Hartford Accident and Indemnity Co., Inc., 356 So.2d 490 (La.App. 1st Cir.1977); and LSA-C.C.P. art. 933.

The judgment of dismissal, however, was with prejudice and it should have been without prejudice. A dismissal for failure to correct a defect in the pleadings should be without prejudice. Saunders v. Lomonaco, 396 So.2d 316 (La.App. 4th Cir.1981); and Alexander v. Town of Jeanerette, 371 So.2d 1245 (La.App. 3rd Cir.1979). Accordingly, we will amend the judgment to provide that it is without prejudice. This means that immediately upon remand Mrs. Dunkle will be free to refile a motion to remove the administrator and proceed to a hearing.

Judgment Homologating a Tableau of Distribution

Mrs. Dunkle opposed the Tableau of Distribution filed by the administrator on August 31, 1982. In this proceeding the court was asked to approve a $1000 fee to the administrator and a $1500 fee to his attorney. Mrs. Dunkle’s opposition was heard on March 15, 1983. Following the hearing the trial judge denied the opposition and signed a judgment homologating the tableau.

Unfortunately for our review the hearing conducted March 15, 1983, was not recorded. Nor is there in the record a narrative of the facts agreed to by the parties or made by the judge pursuant to the provisions of LSA-C.C.P. art. 2131. The respective claims of the parties present factual issues. Under these circumstances, this court must presume that the judgment of the trial court is correct and supported by sufficient competent evidence. See Gardemal v. MCM Industries, Inc., 398 So.2d 144 (La.App. 3rd Cir.1981), writ denied 401 So.2d 994 (La.1981). The judgment homol-ogating the tableau of distribution is affirmed.

Dismissal of Opposition to Accounting

The third ruling on appeal was the granting of an exception of res judicata which resulted in the dismissal of appellant’s “Opposition to Accounting.” We agree that this pleading was properly dismissed for the reason that an earlier ruling of identical import was the “law of the case”, not because it was res judicata. This procedural impasse arose in the following manner.

On June 21, 1982, Edith Dunkle filed two pleadings, a “Motion to Traverse Detailed Descriptive List” and an “Opposition to Accounting.” The motion to traverse the detailed descriptive list alleged that certain assets belonging to the succession were omitted from the detailed descriptive list previously filed by the administrator and sought to have the list amended and the property included within the succession. The opposition to the accounting alleged that the same property was omitted from the accounting previously filed by the administrator and sought to have the accounting amended to include the property. At a hearing on September 15 only the motion to traverse was considered. The trial court evidently determined that the appellant failed to prove that the disputed assets belonged to the succession. On October 18, 1982, judgment was rendered in favor of the administrator dismissing this motion.

When Mrs. Dunkle thereafter sought a hearing on her opposition to the accounting the administrator filed an exception of res judicata. His contention was that the allegations in the motion to traverse and the opposition to the accounting addressed the identical subject matter, therefore any decision rendered on the evidence which was presented at the hearing on one was res judicata as to the other. On March 15, 1983, the trial court sustained this exception and dismissed the opposition to accounting.

It is clear from the record that both rules sought to have the identical property included within the succession. Both rules were filed the same day and used almost identical language in describing the property. One rule sought to have the property included on the descriptive list while the other sought to have the same property included in the accounting. The October 18, 1982, judgment necessarily determined that the property did not belong on either list since the appellant failed to prove the property belonged to the succession. Appellant’s “Opposition to Accounting”, was never amended after this judgment to include any other property. When she insisted on a hearing of this rule appellant was seeking to relitigate the same issues determined by the October 18 judgment.

We find that the trial court properly dismissed plaintiffs rule opposing the accounting under the circumstances. However, the dismissal should not have been grounded on res judicata. For that doctrine to be applicable, the judgment must be a final judgment. LSA-C.C. 2286 and C.C.P. art. 1842. The October 18, 1982, judgment was not a final judgment but an interlocutory one which merely decided a preliminary matter in the course of the proceeding. However, the trial court was justified in refusing to try anew the identical factual issues already tried and decided in the same case. He was justified in regarding his earlier ruling as having binding force under the procedural principle known as “law of the ease”. As stated by the Supreme Court in Petition of Sewerage & Water Board of New Orleans, 278 So.2d 81 (La.1973), among the reasons assigned for application of the law of the case principle are:

“... the avoidance of indefinite relitigation of the same issue; the desirability of consistency of the result in the same litigation; and the efficiency, and the essential fairness to both sides, of affording a single opportunity for the argument and decision of the matter at issue.”

It is clear that the trial court in the October 18 judgment concluded that the contested property did not belong to the succession. The March 15, 1983, judgment of dismissal based on res judicata was an attempt by the trial court to avoid the relitigation of the same issue. We find that the judgment is sustainable based on a reasonable application of the law of the case principle, and that the dismissal of appellant’s “Opposition to Accounting” should be affirmed.

For the above reasons the judgment of the trial court dismissing appellant’s rule to remove the administrator is affirmed although we amend the judgment and order that the dismissal is without prejudice; the judgment of the trial court homologating the tableau of distribution is affirmed; and the judgment of the trial court dismissing the appellant’s opposition to the accounting is affirmed. The ease is remanded to the trial court for further proceedings. Costs of this appeal are to be assessed against appellant.

AMENDED AND AFFIRMED.


text:
    Pamela Burnett CHAUDOIR, Plaintiff-Appellee, v. Robert Wayne CHAUDOIR, Defendant-Appellant.
    No. 83-520.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      Richard Chaudoir, Alexandria, Robert C. Lowther, Jr., Many, for defendant-appellant.
    Don M. Burkett, Many, for plaintiff-ap-pellee.
    Before FORET, DOUCET and YELVER-TON, JJ.
   FORET, Judge.

This appeal was brought by the husband, Robert Wayne Chaudoir, against his wife, Pamela Burnett Chaudoir, from a judgment which awarded custody of the two children of their marriage to Pamela and ordered Robert to pay child support. At issue on appeal is whether the court abused its discretion in awarding child support to Pamela, and in refusing to award alimony pen-dente lite to Robert.

On January 26, 1983, Pamela filed suit for separation from bed and board based on, among other things, her husband’s habitual intemperance. Her petition included a rule for custody of the children of the marriage, child support, and alimony pen-dente lite. Robert also filed a rule for alimony pendente lite and the two matters were heard at the same time. After the hearing, the trial court awarded custody of the children to Pamela and ordered Robert to pay child support in the amount of $300 per month ($150 per child). The court denied both parties’ requests for alimony pen-dente lite.

Robert Wayne Chaudoir and Pamela Burnett Chaudoir were married in Hemphill, Texas, in May of 1977. There were two children born of their marriage, ages 4 and 5 at the time of the hearing. The couple began having marriage difficulties and, on or about January 14, 1983, they separated. Following the separation, Pamela obtained employment at a sawmill, where she earns $5.87 per hour, working a maximum of forty hours each week. Her net income for a two-week pay period consisting of eighty hours of time worked is $383.70. Robert had been employed as a supervisor making approximately $18,000 a year, but one week before the hearing, he was dismissed and was unemployed at the time of the hearing. In the short period between his dismissal and the hearing (one week), Robert tried unsuccessfully to obtain employment. Both Robert and Pamela testified that Robert had a “drinking problem”, and Robert attributed his dismissal, at least in part, to this problem. It was the trial court’s determination, however, that the evidence was insufficient to establish that Robert was an alcoholic or that he was disabled. In the trial court’s determination, Robert was capable of working and would be able to find employment in the immediate future.

CHILD SUPPORT

The trial court is vested with considerable discretion in fixing the amount of child support, and its judgment in this matter will not be disturbed absent an abuse of discretion. Ducote v. Ducote, 339 So.2d 835 (La.1976); Bertrand v. Bertrand, 401 So.2d 552 (La.App. 3 Cir.1981); Arceneaux v. Arceneaux, 426 So.2d 745 (La.App. 3 Cir.1983); Johnson v. Johnson, 432 So.2d 1140 (La.App. 3 Cir.1983).

Fathers and mothers have a mutual obligation to provide for the support, maintenance, and education of their children. LSA-C.C. Article 227. Pamela contributes substantially toward the support, maintenance, and education of her children, both by contributing a large portion of her salary to their support and by providing them with day-to-day care. See Ducote v. Ducote, supra. That Robert was unemployed at the time of the hearing does not relieve him of his obligation to support and maintain his children. He will only be excused from this obligation if it appears that he was not only unemployed, but unemployable. Sykes v. Sykes, 308 So.2d 816 (La.App. 4 Cir.1975). The trial court specifically determined that Robert was employable. Given the short period of his unemployment, this determination of the court was reasonable. The evidence demonstrated that Robert had a respectable earning capacity and the court’s award of $300 in child support to Pamela was not, under the circumstances, an abuse of discretion.

ALIMONY PENDENTE LITE

Alimony pendente lite is a duty of support one spouse owes to the other. LSA-C.C. Art. 148 sets forth the requirements for an award of alimony pendente lite. In 1979, Article 148 was amended to make it sex neutral. Prior to this amendment, jurisprudence indicated that the trial court should not take into account the earning capacity of the wife in determining her right to alimony pendente lite. Bilello v. Bilello, 121 So.2d 728 (La.1960); Best v. Best, 337 So.2d 672 (La.App. 3 Cir.1976); St. Julien v. LeBlanc, 146 So.2d 296 (La.App. 3 Cir.1962). Since the amendment, this appears no longer to be the case. As the First Circuit has pointed out in Whipple v. Whipple, 424 So.2d 263 (La.App. 1 Cir.1982), writ denied, 426 So.2d 179 (La.1983), besides making Article 148 sex neutral, the 1979 amendment changed the wording of the article from “the judge shall” award alimony to “the judge may” award alimony. This change made the awarding of alimony pendente lite discretionary with the court. The trial court is no longer required to award alimony if other factors are present such as the claimant spouse’s capacity to work. LeBlanc v. LeBlanc, 405 So.2d 1187 (La.App. 1 Cir. 1981) and Whipple v. Whipple, supra. The trial court found that Robert was capable of working and should be able to find employment. The fact that he has been unsuccessful in finding employment is not highly significant given the short period of time (one week) during which he had searched. The trial court’s conclusion that Robert should be able to find employment was not unreasonable under the circumstances.

Alimony pendente lite is designed to preserve the status quo insofar as maintenance and support are concerned. Lamb v. Lamb, 427 So.2d 899 (La.App. 3 Cir.1983) and Arrendell v. Arrendell, 390 So.2d 927 (La.App. 2 Cir.1980). Since the evidence indicates that Robert, and not his wife, was the principal wage earner during the marriage, the awarding of alimony pendente lite to Robert would not preserve the status quo. Rather, it would add to the changes that already have occurred in the maintenance and support arrangement that existed before the couple’s separation. Since her separation from her husband, Pamela has had to begin working in a sawmill to support her children and herself. If she were forced to pay alimony to Robert, the status quo would be further upset. She would, in effect, become the wage earner for the family, supporting herself, her children, and her husband. Such a result would be contrary to Article 148’s purpose of preserving the status quo with respect to maintenance and support during the pendency of a suit for separation or divorce.

The trial court is vested with great discretion in determining the amount of alimony pendente lite, and its judgment in this matter will not be disturbed unless there is an abuse of discretion. Arceneaux v. Arceneaux, supra; Cortinez v. Cortinez, 414 So.2d 830 (La.App. 4 Cir.1982); Whipple v. Whipple, supra. We find no abuse of discretion in the court’s denial of Robert’s request for alimony pendente lite.

For the reasons assigned, the judgment of the trial court is affirmed. All costs of these proceedings are assessed against appellant, Robert Wayne Chaudoir.

AFFIRMED.