We do know the children are in necessitous circumstances, that the father does not and will not supply those needs and fulfill the obligation of supporting, maintaining and educating his children prescribed by LSA-Civil Code Article 227. The Supreme Court in the case of Tolley v. Karcher, 1941, 196 La. 685, 200 So. 4, considered an appeal by the mother from a judgment obtained by her daughter requiring her to pay alimony. In discussing the obligation flowing from Art. 229, the Court made the following comment:
Plaintiff, as related hereinabove, asserted that the defendant was indebted unto him in the amount of $1,249.16. The trial court awarded plaintiff the sum of $212.74 and expressed the opinion that "the defendant was in need within the contemplation of LSA-C.C. art. 229 and if not still the help extended by the plaintiffs is presumed to be gratuitous (See Tolley v. Karcher [ 196 La. 685], 200 So. 4; Muse v. Muse [ 215 La. 238], 40 So.2d 21; LSA-C.C. art. 1759), but being of the further opinion that this does not apply to the cash items of $100.00 and the Western Union Money Order for $25.00 (plus $1.86 costs) which the defendant admits owing nor to the item of $85.88 principal and interest paid on the note signed by defendant * * *." It will be observed from the context of the foregoing opinion that the trial judge predicated his award on the fact that the defendant conceded an indebtedness for the various amounts set forth therein.
State v. Foret, 196 La. 675, 200 So. 1 (1940); McCormick on Evidence, Section 212 (2d ed. 1972), 7 Wigmore on Evidence, Section 2129 (3d ed. 1940); Weinstein's Evidence, Section 403[05]; (Volume 1) and Section 901(a)[2] (Volume 5) (1976); 1 Underhill's Criminal Evidence, Section 115 (6th ed. 1973); 2 Wharton's Criminal Evidence, Section 675 (12th ed. 1955). "[Physical] [e]vidence is not relevant, and hence not admissible, unless it is identified by testimonial proof," State v. Foret, cited above, at 200 So. 4. Therefore, if prejudice resulted from the trial court's erroneous admission of irrelevant evidence, the defendant upon appeal is entitled to a reversal of his conviction.
The substantive right of child support, which Mr. Miller was obligated to pay in the judgment, arises under Civil Code article 227, which applies only to minor children. Tolley v. Karcher, 196 La. 685, 200 So. 4 (1941); 1 M. Planiol, Traite elementaire de droit civil, no. 1682, at 40-41 (La. State L.Inst. transl. 1959). After the age of majority, ascendants and descendants owe reciprocally only the alimentary obligation.
Therefore, the question of his legal responsibility for the alimony was not at issue in this Court. Tolley v. Karcher, 196 La. 685, 200 So. 4, also cited in the opinion in the Nations case, is likewise not authority for the conclusion in that case, since the Tolley decision concerned only whether plaintiff, a middle-aged woman, could require that her mother contribute to her support under Article 229 of the Code. The Court held in the affirmative, expressing the view that Article 229 is not restricted to minor children.
The above quoted constitutional and codal provisions make the meaning of the word "child" as clear as light. In Tolley v. Karcher, 196 La. 685, 200 So. 4, our Court held that Article 227 of the Revised Civil Code relates to minor children. In Walder v. Walder, 159 La. 231, 105 So. 300, 302, the Court declared:
Thus, just as the legal obligation to support, maintain, and educate ceases upon majority, save the alimentary obligation for necessitous circumstances, so too does the corresponding dispensation from collation. LSA-C.C. Art. 227 relates to minor children only; Tolley v. Karcher, 196 La. 685, 200 So. 4 (1941), and has been cited consistently in child support litigation. Distinguishable is the alimentary obligation found in LSA-C.C. Art. 229, which lasts throughout life, but can be invoked only under necessitous circumstances.
This obligation exists during the child's minority and is unilateral, unaffected by a parent's custodial status. Tolley v. Karcher, 196 La. 685, 200 So. 4 (1941); Macaluso v. Macaluso, 509 So.2d 201 (La.App. 1st Cir. 1987). Between descendants over age 18 and their ascendants, a distinct, separate and reciprocal support duty exists under CC Art. 229 if the claimant shows that "life's basic necessities" cannot be obtained by other means. Tobin v. Tobin, 323 So.2d 896 (La.App. 2d Cir. 1975), writs denied.
The obligations imposed on the parents under LSA-C.C. Articles 224 and 227 to support, maintain and educate their children terminate when the minor reaches the age of majority. Tolley v. Karcher, 196 La. 685, 200 So. 4 (La. 1941); Fellows v. Fellows, 267 So.2d 572 (La.App. 3rd Cir. 1972); Planiol, Traite Elementaire de Droit Civil (La. Law Ins. Trans.), Vol. 1, Sec. 1682, at page 40; Works of Louisiana Appellate Courts For 19723 Term: Persons, by Katherine Shaw Spaht, 34 La.Law Rev. 197 at 204 (1974). However, the obligations under these two articles are different. Article 224 is derived from Article 385 of the Code Napoleon and deals with the obligation of the parent to support, maintain and educate the child in return for the parent's usufructuary right over the estate of the minor.
Therefore, as Effie is no longer a minor under the present provisions of Civil Code Article 37, her father is no longer obligated to furnish her with an education. Tolley v. Karcher, 196 La. 685, 200 So. 4. The remaining issue to be decided is whether the appellant is "in need" within the contemplation of Civil Code Article 229 so as to require that her father pay her alimony.