Karen Cohen Kinnett Versus Jarred Brandon Kinnett

KAREN COHEN KINNETT NO. 17-CA-625

VERSUS FIFTH CIRCUIT

JARRED BRANDON KINNETT COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 768-195, DIVISION "E"
HONORABLE WILLIAM H. CREDO, JUDGE PRO TEMPORE PRESIDING

July 07, 2022

FREDERICKA HOMBERG WICKER
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Robert A. Chaisson

JUDGMENT ON MOTION IN LIMINE REVERSED; JUDGMENT ON
CONSTITUTIONALITY VACATED; REMANDED FOR NEW TRIAL
FHW
JGG
RAC

COUNSEL FOR PLAINTIFF/APPELLEE,
KAREN COHEN KINNETT
Allison K. Nestor
Leonard L. Levenson

COUNSEL FOR DEFENDANT/APPELLEE,
JARRED BRANDON KINNETT
Jacqueline F. Maloney
Tracy G. Sheppard

COUNSEL FOR INTERVENOR/APPELLANT,
KEITH EDWARD ANDREWS
Thomas A. Robichaux
Stephanie A. Fratello
Sharon L. Andrews
Desiree M. Valenti

COUNSEL FOR MINOR/APPELLEE,
G. J. K., MINOR CHILD
Ramona G. Fernandez
and Tobie L. Tranchina, Supervising Attorneys
Loyola University New Orleans, College of Law
Victoria Barczyk, Student Practitioner
Sarah Skidmore, Student Practitioner
Olivia Holm, Student Practitioner
Cynthia Traina, Student Practitioner

COUNSEL FOR AMICUS CURIAE,
STATE OF LOUISIANA, DEPARTMENT OF JUSTICE
Honorable Jeffrey M. Landry
David J. Smith, Jr.
Jeffrey M. Wale
Chimene St. Amant

WICKER, J.

This matter is before this Court on remand from the Louisiana Supreme

Court to consider biological father appellant, Keith Andrews’, challenge to the

constitutionality of La. C.C. art. 198, an issue which this Court did not consider on

appeal. Kinnett v. Kinnett, 20-01134 (La. 10/10/21), 332 So.3d 1149, 1157.

Upon review of the rulings appealed in connection with Mr. Andrews’

challenge to the constitutionality of La. C.C. art. 198, we find that the trial court

abused its discretion in granting a pre-trial motion in limine and in excluding “any

fact witness” from the trial on Mr. Andrews’ first supplemental petition

challenging the constitutionality of La. C.C. art. 198. We find that the trial court’s

ruling impeded the discovery process and prevented Mr. Andrews from properly

challenging the statute’s constitutionality at trial. We therefore reverse the trial

court’s October 23, 2018 judgment granting the motion in limine, which affected

the presentation of evidence, or lack thereof, permitted at trial, vacate the

subsequent January 10, 2019 judgment holding La. C.C. art. 198 constitutional,

and remand this matter to the trial court to allow the parties to conduct proper

discovery and order the trial court to hold a new trial on Mr. Andrews’

supplemental petition, with factual and/or expert testimony and evidence, raising

the issue of La. C.C. art. 198’s constitutionality.

Procedural History:

The preliminary procedural history is set forth in this Court’s opinion in the

first appeal in this case:

Ms. Kinnett commenced the instant litigation by filing for
divorce on January 14, 2017. She sought joint custody with Mr. Kinnett
of their daughter, B.A.K., but sole custody of her son, G.J.K. On
January 27, 2017, Mr. Kinnett filed his Answer and Reconventional
Demand disputing Ms. Kinnett's contention that awarding her sole
custody of G.J.K. would be in the child's best interest, urging instead
that joint custody be granted.

17-CA-625 1

On February 10, 2017, Mr. Andrews filed a Petition in
Intervention to Establish Paternity and to Obtain Custody of G.J.K. In
his petition, Mr. Andrews alleged that Ms. Kinnett had concealed his
possible paternity until December 9, 2016, and sought an order
establishing paternity and an action to obtain custody.

On February 21, 2017, Mr. Kinnett answered Mr. Andrews’
intervention with Exceptions of No Cause and/or No Right of Action,
Prescription, and Peremption, arguing that Mr. Andrews’ avowal action
was perempted under Louisiana Civil Code art. 198 because he failed
to file an action within one year of G.J.K.’s birth. On February 24, 2017,
the court appointed the Loyola Law Clinic to represent the interests of
the minor child. Ms. Kinnett first filed a memorandum opposing the
exceptions on April 10, 2017, however, on May 31, 2017, she filed a
second memorandum supporting the exceptions. On appeal, Ms.
Kinnett adopted the arguments in Mr. Kinnett’s appellee briefs.

At the initial April 12, 2017 hearing, the Domestic
Commissioner denied the exceptions of no right of action and no cause
of action as to paternity, and granted the exception of no cause of action
as to custody. He also granted the exception of peremption, finding that
Mr. Andrews should have known G.J.K. was his child given that he had
“intimate contact” with Ms. Kinnett nine months prior to the child’s
birth. Mr. Andrews objected to the Commissioner’s ruling, contending
in pertinent part that the “time limitations in Civil Code article 198 are
constitutionally invalid.”

The parties tried the exceptions de novo before the district court
on June 2, 2017. The district court judge ruled from the bench denying
the exceptions of no cause of action and no right of action as to
paternity, but granting the exceptions of no cause of action and no right
of action as to custody and visitation. The judge further held that Mr.
Andrews’ avowal action was perempted under Article 198 based on his
finding that (a) Mr. Andrews had not proven “that the mother was
actually in bad faith and intended to deceive,” and (b) he had filed his
avowal action more than a year from the time the judge determined he
knew or should have known that he was G.J.K.’s father. The trial court
declined to rule on the constitutionality of the statute and denied Mr.
Andrews’ motion for additional time to notify the attorney general and
further plead the constitutionality issue. Mr. Andrews appealed the June
2, 2017 judgment to this Court.

On March 23, 2018, this Court stayed this appeal and remanded
the case to the trial court to allow Mr. Andrews the opportunity to
amend his petition and appropriately challenge the constitutionality of
Article 198. Kinnett v. Kinnett, 17-CA-625, per curiam, p. 4. On April
6, 2018, Mr. Andrews filed his First Supplemental and Amending
Petition, formally challenging Article 198’s constitutionality, thereafter
notifying the Louisiana Attorney General as required by law. The Law
Clinic filed a memorandum in support of Mr. Andrews’ Supplemental
and Amending Petition on June 4, 2018.

17-CA-625 2

Kinnett v. Kinnett, 17-625 (La. App. 5 Cir. 8/6/20), 302 So.3d 157, 165, writ
granted, 20-01134 (La. 2/9/21), 309 So.3d 735, reh’g denied, 20-01134 (La.
1/28/22), and writ granted, 20-01143 (La. 2/9/21), 309 So.3d 735, reh’g
denied, 20-01143 (La. 1/28/22), and writ granted, 20-01156 (La. 2/9/21), 309
So.3d 738, reh’g denied, 20-01156 (La. 1/28/22), and rev’d in part, 20-01134 (La.
10/10/21), 332 So.3d 1149.

On remand, Mr. Andrews filed a first supplemental and amended petition to

properly raise a challenge to the constitutionality of La. C.C. art. 198. In the

supplemental petition, Mr. Andrews further set forth factual allegations to

demonstrate that he had “immediately assumed the role of G.J.K.’s biological

father and began taking steps to support…and become involved in G.J.K.’s life.”

Mr. Andrews set forth the following allegations:

Upon learning that he is, in fact, the father of the minor child,
G.J.K., Petitioner [sic] [actually Intervenor–Mr. Andrews] immediately
began to establish a relationship with G.J.K. and sought to see G.J.K.
as much as possible. However, this was made extremely difficult by the
circumstances then existing between Petitioner [Ms. Kinnett] and
Defendant [Mr. Kinnett], as Petitioner waited until mid-January of
2017 to tell Defendant he was not the father of G.J.K. After that,
Petitioner and Defendant separated, and began sharing custody of
G.J.K. and B.A.K., which limited the times that Intervenor could see
G.J.K. through Petitioner. It was further complicated by the fact that
Petitioner hid her relationship with Intervenor from Defendant and
Defendant's family. Because B.A.K. was older, in the first grade, and
could potentially tell Defendant of Intervenor’s presence, Intervenor’s
time with G.J.K. was very limited at first. Subsequently, Petitioner
retaliated against Intervenor on multiple occasions because Intervenor
was forced to disclose details about their relationship in court filings
and testimony. This ultimately culminated in Petitioner cutting off all
contact between Intervenor and G.J.K. after the April 15, 2017 hearing
in front of Commissioner Bailey, because she did not like the way he
testified.

In his supplemental petition, Mr. Andrews further set forth allegations of the

circumstances under which he was able to spend time with G.J.K. prior to Ms.

Kinnett’s cutting-off contact:

Despite these difficulties, Intervenor was still able to see G.J.K.
and interact and bond with him sixteen times between December of
2016 and April of 2017:

1) December 10, 2016, Intervenor saw G.J.K. for the first time
the day after he learned of the results of the sibling paternity test, when

17-CA-625 3

he met Petitioner and G.J.K. at Tracepoint, LLC in Mid-City to conduct
the first paternity test.

2) December 20, 2016, Intervenor went to PJ’s coffee on Maple
St to meet Petitioner and G.J.K., and spent approximately one hour with
him there.

3) January 7, 2017, Intervenor went to Audubon Park to meet
Petitioner, G.J.K. and B.A.K. there and spent approximately two hours
playing with G.J.K. and B.A.K.

4) January 10, 2017, Intervenor went to PJ’s coffee on Maple St.
to meet Petitioner and G.J.K. and spent approximately one hour with
him there.

5) January 12, 2017, Intervenor met Petitioner, G.J.K., B.A.K.
and Petitioner’s father at Petitioner’s sister’s house and spent
approximately three hours playing with G.J.K. there.

6) January 22, 2017, Intervenor babysat for G.J.K. for
approximately four hours while Petitioner took B.A.K. to a movie with
friends.

7) January 28, 2017, Intervenor met Petitioner, G.J.K., B.A.K.
and Petitioner’s father at Petitioner’s new apartment for approximately
one hour to help clean and to play with the kids.

8) January 30, 2017, Intervenor picked up G.J.K. and drove him
to Tracepoint, LLC for the second paternity test, and spent about one
and half hours with him that day.

9) February 11, 2017, Intervenor had dinner with Petitioner and
G.J.K. at Petitioner’s new apartment, played with G.J.K, and helped get
him bathed and ready for bed, and spent approximately three and one
half hours with him that night.

10) February 12, 2017, Intervenor met Petitioner and G.J.K. for
breakfast, and played with G.J.K., and spent approximately three hours
with him that day.

11) February 19, 2017, Intervenor spent approximately two and
one-half hours at Petitioner’s new apartment one evening after dinner,
played with G.J.K. and B.A.K. and helped get G.J.K. bathed and ready
for bed.

12) February 27, 2017, Intervenor stopped by Petitioner's new
apartment and played with G.J.K. for approximately one and one-half
hours.

13) March 3, 2017, Intervenor took Petitioner and G.J.K. to the
Audubon Aquarium and spent approximately four hours with him that
day.

17-CA-625 4

14) March 12, 2017, Intervenor spent approximately five hours
in the afternoon and evening with Petitioner, G.J.K. and B.A.K. at
Petitioner’s new apartment. Intervenor played with the kids, had dinner
together, and helped get G.J.K. bathed and ready for bed.

15) March 19, 2017, Intervenor spent approximately five hours
in the afternoon and evening with Petitioner, G.J.K. and B.A.K. at
Petitioner’s new apartment. Intervenor played with the kids, had dinner
together, and helped get G.J.K. bathed and ready for bed.

16) April 5, 2017, Intervenor met with Petitioner, G.J.K. and
B.A.K. for dinner and played with the kids, and spent approximately
three hours with G.J.K. that night.

Moreover, Mr. Andrews made the following allegations regarding his desire

to financially and emotionally provide for the minor child as follows:

Intervenor further asserts that he is able to provide a stable and
loving home for his son, both financially and as a caretaker. He has
flexible work hours that allow for drop off and pick up from school and
he rarely has to work on the weekends. As such, Intervenor will have
ample time to spend with G.J.K. after school, on the weekends, and[]
on holidays. In addition, he has a two-bedroom apartment, in close
proximity to the minor child’s current residence, wherein one bedroom
is solely dedicated to the minor child.

More importantly, and as asserted herein above, Intervenor has
established a connection with the minor child, G.J.K., who is at such a
young age that commencement of an emotional bond is not damaging
to the child in any way, but rather strengthens the need for the
protection of the minor child’s and father’s fundamental constitutional
rights to filiation and avowal.

On May 15, 2018, Mr. Kinnett moved to strike the portions of Mr. Andrews’

supplemental petition in which he alleged that he had provided financial support

and started spending time with G.J.K., on the grounds that whether the biological

father had established a relationship with the child was not relevant to the question

of constitutionality. Mr. Kinnett also filed a motion in limine asserting that “[a]

proper challenge to the constitutionality of any statute does not require more than

briefs and argument” and argued that Mr. Andrews should be prohibited from

presenting any factual testimony or evidence at the constitutionality trial. Ms.

Kinnett also filed a “Motion to Strike Expert Witnesses and Written Discovery…”

17-CA-625 5

arguing that only briefs and arguments were appropriate and that Mr. Andrews

should be prohibited from conducting any fact discovery or presenting any factual

or expert evidence at trial on the issue of constitutionality.

On June 13, 2018, the trial court, Hon. John Molaison presiding, conducted a

hearing on the motions in limine and motions to strike. At the June 13, 2018

hearing, Judge Molaison correctly pointed out that the constitutionality challenge

presented in Mr. Andrew’s supplemental petition is in fact an ordinary proceeding.

Judge Molaison thus found discovery was proper and stated, “it’s an ordinary

proceeding and I cannot bar someone from attempting to introduce evidence to

support that constitutional challenge to a statute” and “I believe the law allows the

introduction of evidence to support a challenge to the constitutionality of the

statute.” On July 18, 2018, Judge Molaison issued a written judgment denying Mr.

Kinnett’s motion to strike the allegations stated in the amended petition as well as

the motion to strike any fact witnesses. He also denied the motions to strike

discovery and fact witnesses, having found that “fact discovery” was appropriate

and stated “I think I have to reset this hearing, allow you folks to conduct your

discovery, determine if you need any additional witnesses on your own, and then

we set it for trial.”1

Judge Molaison then issued a Scheduling Order setting forth discovery

deadlines, authorizing the deposition of Mr. Andrews’ expert, Dr. Sonnier, and

setting a status conference for August 22, 2018 to determine the status of discovery

and to set a trial date. Counsel for Mr. Andrews began the discovery process and

noticed the depositions of both Mr. Kinnett and Ms. Kinnett.

On July 19, 2018, counsel for Mr. Kinnett filed a motion to quash the notice

of deposition for Brandon Kinnett.2 On July 31, 2018, Ms. Kinnett filed a motion

1
As to the motion to strike expert witnesses, Judge Molaison continued that motion.
2
Mr. Kinnett also filed a motion for protective order, which the trial court granted.

17-CA-625 6

to quash the notice of video deposition of Karen Cohen Kinnett, again arguing that

factual testimony was irrelevant to any constitutional analysis.

Soon thereafter, the then trial judge, Hon. John Molaison, was elected to this

Court. On August 22, 2018, the Hon. Michael Kirby, Judge Pro Tempore,

conducted a hearing on the motions to quash. Judge Kirby granted the motions to

quash, finding that Mr. Kinnett’s and Ms. Kinnett’s depositions were not “relevant

to establishing that Article 198 is unconstitutional.”

On October 1, 2018, after a new trial judge had been appointed to preside

over the case, Ms. Kinnett filed a “Motion In Limine to Exclude Testimony and

Evidence of Any Fact Witness,” seeking “an order prohibiting Intervenor from

calling any fact witnesses at trial” on the constitutionality issue. This motion was

nearly identical in substance to the motion in limine previously filed by Mr.

Kinnett and denied by Judge Molaison. In her motion, Ms. Kinnett asserted that

“testimony as to what relationship Intervenor may or may not have had with the

minor and what action he may or may not have taken with respect to parenting the

minor, does not make the constitutionality of Art. 198, more or less likely.”

In opposition to this second motion in limine, Mr. Andrews argued that this

Court had permitted amendment of his petition to appropriately challenge the

constitutionality of article 198. He argued that, to appropriately and effectively

challenge the constitutionality of La. C.C. art. 198, he would be required to put

forth evidence to prove his standing to challenge the statute, as well as put forth

evidence as to why the statute, as applied to him, is unconstitutional.

Prior to the hearing on the second motion in limine, the third judge to preside

over this case was appointed pro tempore, the Hon. William Credo, III. In

considering the arguments of Mr. Andrews’ counsel that this is an ordinary

proceeding and that Mr. Andrews has the burden of proving the factual allegations

set forth in his supplemental petition in order to prove standing to assert the

17-CA-625 7

constitutionality challenge, Judge Credo expressed that “I don’t believe that I’m

required to hear testimony of a factual nature to establish the right to challenge the

constitutionality… .” By judgment dated October 23, 2018, Judge Credo granted

the “Motion in Limine to Exclude Testimony and Evidence of Any Fact

Witnesses,” precluding any factual evidence from being introduced at the trial on

the issue of constitutionality. Further, while Judge Credo recognized the

possibility that “constitutional scholars, legislators, or those who possess highly

specialized knowledge of the legislative history of the law in question” might serve

as witnesses, the court found that neither the opinion of Mr. Andrews’ expert, Dr.

Sonnier, nor the testimony of Mr. Andrews or any other fact witness was related to

“whether the statute serves a legitimate government purpose of protecting the

status of a child vis-á-vis his mother and father, his family, his classmates, and the

world.”

On November 5 and December 18, 2018, Judge Credo presiding, the trial

court heard and considered only oral arguments as to Mr. Andrews’

constitutionality challenge raised in his supplemental petition. On January 10,

2019, the court issued its written judgment, holding “that La. Civ. Code art. 198 is

constitutional. Keith Edward Andrews has failed to submit evidence that Article

198 violates either substantive or procedural rights to due process or that it fails to

protect a fundamental liberty interest, as alleged in his First Supplemental and

Amending Petition.”3

Mr. Andrews filed a devolutive appeal. On appeal, Mr. Andrews

complained of three trial court rulings: the trial court’s June 2, 2017 judgment

holding that his avowal action was preempted; the October 23, 2018 interlocutory

judgment granting the motion in limine to exclude “any fact witness” in connection

3
On October 30, 2018, Mr. Andrews filed a Notice of Intent to Proffer his own testimony and the
testimony of his expert, Dr. Sonnier at the November 5, 2021 trial.

17-CA-625 8

with the trial of his constitutionality challenge raised in his supplemental petition4;

and the January 10, 2019 judgment holding that La. C.C. art. 198 is constitutional.

This Court issued an opinion, reversing the trial court judgment on the issue

of peremption. Finding legal error that interdicted the fact-finding process, this

Court conducted a de novo review and found that Ms. Kinnett in bad faith deceived

Mr. Andrews regarding his paternity, observing: “there is no set of circumstances

wherein a woman–who has had sexual relations with more than one man during the

period of possible conception–may have an ‘honest belief’ that one man, and not

the other, is the father.” Kinnett v. Kinnett, 332 So.3d at 1152, citing Kinnett v.

Kinnett, 302 So.3d at 177. This Court further held “as a matter of law that a

married woman–whose husband is presumed to be the father of her child–who

knows that it is possible that another man is the child’s biological father has a duty

to inform that man of his possible paternity.” Kinnett, 302 So.3d at 179. Because

we found Mr. Andrews’ claim not perempted, this Court pretermitted “discussion

of Mr. Andrews’ assignments of error regarding the trial court’s ruling that Article

198 is constitutional.” Kinnett, 302 So.3d at 187.

The Louisiana Supreme Court reversed this Court and found that “a mother

who knows another man is possibly the father of her child” is not in bad faith in

failing to disclose that knowledge of possible paternity after the child’s birth if a

trial judge finds credible the mother’s belief that one man, rather than the other—

whom she had sexual relations within a single conception period— is the father.

Having reversed this Court on the peremption of Mr. Andrews’ avowal claim, the

4
It is well-settled that although an interlocutory judgment may not itself be immediately appealable, it is
nevertheless subject to review by an appellate court when a judgment is rendered in the case which is
appealable. Elysian, Inc. v. Neal Auction Co., Inc., 20-0674 (La. App. 4 Cir. 7/21/21), 325 So.3d 1075,
108, citing People of the Living God v. Chantilly Corp., 251 La. 943, 947-48, 207 So.2d 752, 753 (1968)
and Phillips v. Gibbs, 10-0175, p. 4 (La. App. 4 Cir. 5/21/10), 39 So.3d 795, 798; see also Par. Nat. Bank
v. Wilks, 04-1439 (La. App. 1 Cir. 8/3/05), 923 So.2d 8, 11.

17-CA-625 9

Louisiana Supreme Court remanded the matter to this Court for “consideration of

Mr. Andrews’ constitutional challenge.” Kinnett, 332 So.3d at 1157.

This Court permitted the parties the opportunity to appear for oral argument

and to file additional briefs for this Court’s consideration.

Discussion

The party challenging the constitutionality of a law has the burden of

proving that the law is barred by a particular provision of the constitution. W.R.M.

v. H.C.V., 06-0702 (La. 3/9/07) 951 So.2d 172. First, a plaintiff challenging the

constitutionality of a law has the burden of introducing evidence of his entitlement

to bring a declaratory judgment action, i.e., his standing to bring suit. In re

Melancon, 05-1702 (La. 7/10/06), 935 So.2d 661, 667. The Louisiana Supreme

Court has instructed that “a party has standing to argue that a statute violates the

constitution only where the statute seriously affects the party’s own rights. To have

standing, a party must complain of a constitutional defect in the application of the

statute to him or herself, not of a defect in its application to third parties in

hypothetical situations.” Kinnett, 332 So.3d at 1157, quoting Melancon, 935 So.2d

at 667.

The United States Supreme Court has held that “a parent’s desire for and

right to ‘the companionship, care, custody and management of his or her children’

is an important interest that ‘undeniably warrants deference and, absent a powerful

countervailing interest, protection.’” Lassiter v. Dep’t of Soc. Servs. of Durham

Cty., N. C., 452 U.S. 18, 27, 101 S.Ct. 2153, 2159-60, 68 L.Ed.2d 640 (1981)

(citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551

(1972)). However, the law is settled that a parent’s constitutional right to parent

his child does not arise by the mere circumstance of his child’s birth. Rather, his

liberty interest to parent his child arises with his demonstration of a full

commitment to the responsibilities of parenthood by “com[ing] forward to

17-CA-625 10

participate in the rearing of his child.” Tracie F. v. Francisco D., 15-224 (La. App.

5 Cir. 9/21/15), 174 So.3d 781, 797, writ granted, 15-1812 (La. 11/16/15), 184

So.3d 20, and aff'd but criticized, 15-1812 (La. 3/15/16), 188 So.3d 231, citing

Lehr v. Robertson, 463 U.S. 248, 261, 103 S. Ct. 2985, 2993, 77 L. Ed. 2d 614

(1983), quoting Caban, 441 U.S., at 392, 99 S.Ct., at 1768. After such a showing

is made, “his [the father’s] interest in personal contact with his child acquires

substantial protection under the due process clause. At that point it may be said that

he “act[s] as a father toward his children.” Id., quoting Caban, 441 U.S. at 389, n.

7, 99 S.Ct., at 1766. Thus, for a biological father to properly assert a

constitutionality challenge to a law governing paternity actions, he must present

evidence to demonstrate his standing, i.e., that he has grasped the opportunity to

father or rear his child and to take an “interest in personal contact with his child.”

Id.

Upon review of the record and consideration of the errors alleged in

connection with Mr. Andrews’ appeal of the judgments rendered in connection

with his constitutionality challenge to La. C.C. art. 198, we find that the trial judge,

Judge Credo, erred in granting the motion in limine to exclude any fact witness and

to, essentially, prohibit any fact discovery or evidence to be produced at trial in this

matter. We further point out that Judge Molaison previously denied Mr. Kinnett’s

substantively identical motion in limine and found that “fact discovery” and

“depositions” would be relevant and necessary for Mr. Andrews to establish

standing to properly challenge the constitutionality of La. C.C. art. 198.

Because we find that the interests of justice would not be served without full

discovery and a full evidentiary trial on Mr. Andrews’ supplemental petition, with

factual and/or expert testimony and evidence, we reverse the trial court’s October

23, 2018 judgment granting the motion in limine, which affected the presentation

of evidence, or lack thereof, permitted at trial, vacate the subsequent January 10,

17-CA-625 11

2019 judgment holding La. C.C. art. 198 constitutional, and remand this matter to

the trial court to allow the parties to conduct proper discovery and for a new trial

on Mr. Andrews’ supplemental petition raising the issue of La. C.C. art. 198’s

constitutionality.

JUDGMENT ON MOTION IN LIMINE
REVERSED; JUDGMENT ON
CONSTITUTIONALITY VACATED;
REMANDED FOR NEW TRIAL

17-CA-625 12

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JULY 7, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

17-CA-625
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
ALLISON K. NESTOR (APPELLEE) LEONARD L. LEVENSON (APPELLEE) JACQUELINE F. MALONEY (APPELLEE)
DESIREE M. VALENTI (APPELLANT) SHARON L. ANDREWS (APPELLANT) STEPHANIE A. FRATELLO (APPELLANT)
THOMAS A. ROBICHAUX (APPELLANT) RAMONA G. FERNANDEZ (APPELLEE)

MAILED
HONORABLE JEFFREY M. LANDRY TRACY G. SHEPPARD (APPELLEE) CHRISTIAN W. HELMKE (APPELLEE)
(APPELLEE) ATTORNEY AT LAW DONNA R. BARRIOS (APPELLEE)
ATTORNEY GENERAL 412 DOLHONDE STREET ATTORNEYS AT LAW
LOUISIANA DEPARTMENT OF JUSTICE GRETNA, LA 70053 424 GRAVIER STREET
1885 NORTH 3RD STREET NEW ORLEANS, LA 70130
6TH FLOOR, LIVINGSTON BUILDING DAVID J. SMITH, JR. (APPELLEE)
BATON ROUGE, LA 70802 JEFFREY M. WALE (APPELLEE)
ASSISTANT ATTORNEY GENERALS
ASHLEY FISHER (APPELLEE) LOUISIANA DEPARTMENT OF JUSTICE
ELIZABETH FOX (APPELLEE) POST OFFICE BOX 94005
LINDSAY DEAN (APPELLEE) BATON ROUGE, LA 70804-9005
STUDENT PRACTITIONER
STUART H. SMITH LAW CLINIC &
CENTER FOR SOCIAL JUSTICE
7214 ST. CHARLES AVENUE
NEW ORLEANS, LA 70118