William M. McKinley v. Sheraunte' D. McKinley

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2022 CA 0132

WILLIAM M. McKINLEY

VERSUS

SHERAUNTE' D. McKINLEY

Judgment Rendered: SEP 1 6 ? 022

On Appeal from the 21 st Judicial District Court
In and for the Parish of Tangipahoa
State of Louisiana
Trial Court Docket Number 2020- 0001243, Div. "K"

The Honorable Jeffery T. Oglesbee, Judge Presiding

DaShawn P. Hayes Counsel for Plaintiff/Appellant,
New Orleans, Louisiana William M. McKinley

Douglas Brown Counsel for Defendant/Appellee,
Hammond, Louisiana Sheraunte' D. McKinley

BEFORE: WELCH, PENZATO, AND LANIER, JJ.

PENZATO, J.

Plaintiff, William McKinley, seeks reversal of a judgment sustaining an

exception of prescription filed by defendant, Sheraunte' McKinley. For the

following reasons, we reverse the judgment and remand to the trial court for

further proceedings.

FACTS AND PROCEDURAL HISTORY

On November 16, 2020, William McKinley filed a petition to annul

acknowledgments of paternity of two minor children, Z.M. (born October 2, 2008)

and M.M. (born August 4, 2010). 1 According to the petition, William married the

children' s mother, Sheraunte' McKinley, on July 16, 2016. The petition states that

William formally acknowledged paternity of both children by authentic act but

does not state the date the acts were executed. William alleged that DNA tests

established zero probability of paternity between himself and the children.

Nevertheless, he prayed for the court to order Sheraunte' and the children to submit

to blood and tissue testing pursuant to La. R.S. 9: 406( B)( 3) and La. R.S. 9: 396.

Finally, he prayed for judgment annulling the acknowledgments of paternity of

both children.

Sheraunte' asserted an exception of prescription in response to William' s

petition based on La. R.S. 9: 406( B). 2 She alleged that the version of this statute in

effect at the time of acknowledgment contained a prescriptive period that lapsed.

Trial on the exception took place on May 24, 2021. DNA test reports

admitted into evidence show a zero percent probability that William is the

1 Pursuant to Uniform Rules - Courts of Appeal, Rule 5- 2, initials are used to ensure the
confidentiality of the minors.

2 Since the exception of prescription was based solely on La. R.S. 9: 406(B), no other statutory
prescriptive periods are at issue, and this court may not raise prescription sua sponte. La. C. C. P.
art. 927( B). Sheraunte' also asserted exceptions of peremption, vagueness, nonjoinder of

necessary parties ( the children), no right of action, and no cause of action, which are not at issue
in this appeal.

biological father of either child. An acknowledgement of paternity of Z.M., dated

June 19, 2012, was admitted into evidence.' Concerning M.M., testimony

established that William signed the child' s birth certificate, which was not admitted

into evidence. He did not execute an authentic act acknowledging paternity of

M.M.

After taking the matter under advisement and allowing post -trial briefs, the

trial court rendered judgment on September 16, 2021, sustaining the exception of

prescription filed by Sheraunte' and dismissing William' s petition to annul

acknowledgments of paternity.

William filed the instant appeal, seeking to reverse this judgment. William

asserts that the trial court erred by sustaining the exception because the 2016

revision of La. R.S. 9: 406( B) removed the two-year prescriptive period to file a

petition to annul acknowledgment of paternity and the undisputed evidence

established that he is not the biological father of Z.M. or M.M.

DISCUSSION

The issue raised by the appellant concerns the appropriate interpretation and

application of La. R.S. 9: 406( B). Where the issue of prescription turns upon the

proper application and interpretation of statutory law, the exception presents a

question of law for appellate review. Questions of law are reviewed de novo, with

the judgment rendered on the record, without deference to the legal conclusions of

the tribunal below. Newton v. St. Tammany Fire District No. 12, 2020- 0797 ( La.

App. 1st Cir. 2/ 19/ 21), 318 So. 3d 206, 210.

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Although the acknowledgement of paternity of Z.M. purports to bear signatures from both
William and Sheraunte', William testified that he did not sign the acknowledgment. Sheraunte'
testified that he did. William did not challenge the validity of the acknowledgment in his
petition and the issue is not before us on appeal. Therefore, for purposes of this opinion, we
presume the authentic act is valid. We also note that, to the extent William signed the
acknowledgment, he did so knowing that Z.M. was not his biological child. Both William and
Sheraunte' testified that Z.M. was born before they met.

3

As an initial matter, we note that La. R.S. 9: 406 sets forth the procedure to

revoke or annul an authentic act acknowledging paternity. In 2010, at the time

M.M. was born, La. C. C. art. 195 provided that a man who marries the mother of a

child not filiated to another man who, with the concurrence of the mother,

acknowledges the child by authentic act or by signing the birth certificate is

presumed to be the father of the child. The undisputed evidence established that

William acknowledged M.M. by signing the child' s birth certificate, not by

executing an authentic act of acknowledgment. There being no authentic act, La.

R. S. 9: 406 does not apply to proceedings related to M.M., and the trial court

legally erred in finding otherwise.'

Since the record contains an authentic act of acknowledgment of paternity of

Z.M., we consider the issue raised by the appellant — whether the two-year

prescriptive period set forth in La. R.S. 9: 406( B) was retroactively repealed in

2016 such that William' s action to annul is not prescribed.

In 2012, when the authentic act of paternity of Z.M. was executed, La. R.S.

9: 406( A) pertinently provided that a person who executed an authentic act of

acknowledgment may, without cause, revoke it within sixty days of the execution

of the authentic act of acknowledgment. If this was not done, La. R.S. 9: 406( B)( 1)

provided that a person who executed an authentic act of acknowledgment may

petition the court to revoke such acknowledgment only upon proof, by clear and

convincing evidence, that such act was induced by fraud, duress, material mistake

of fact or error, or that the person is not the biological parent of the child.

Pertinently, La. R.S. 9: 406(B)( 2) stated,

The mover shall institute the proceeding by ordinary process, within a
two-year period commencing with the execution of the authentic act
of acknowledgment of paternity, in a court of competent jurisdiction
upon notice to the other party who executed the notarial act of

4 See State ex rel. A.L., 2009- 1565 ( La. App. 3d Cir. 4/ 7/ 10), 34 So. 3d 416, 419, writ denied,
2010- 1017 ( La. 5/ 28/ 10), 36 So. 3d 256, recognizing the legal distinction between
acknowledgment by signing the birth certificate and by executing an authentic act.

4

acknowledgment and other necessary parties including the office of
children and family services, child support enforcement section of the
Department of Children and Family Services.

Louisiana Revised Statutes 9: 406( A) and ( B)( 1) substantively remained the

same following the 2016 revision, allowing revocation within sixty days or,

otherwise, upon clear and convincing evidence that the person who executed the

acknowledgment is not the biological parent of the child. However, the two-year

prescriptive period was removed from La. R.S. 9: 406( B)( 2), which now states:

The petitioner shall institute the annulment proceeding by ordinary
process in a court of competent jurisdiction upon notice to the other
party who executed the notarial act of acknowledgment and other
necessary parties including the office of children and family services,
child support enforcement section of the Department of Children and
Family Services. Esl

On appeal, William argues that the 2016 revision applies retroactively such

that his action to annul is not prescribed. He cites Barras v. O' Rourke, 2019- 412

La. App. 3d Cir. 12/ 18/ 19), 287 So. 3d 817, wherein the Third Circuit Court of

Appeal considered the issue now before us and held that the 2016 amendment to

La. R.S. 9: 406( B) applies retroactively. The Barras court relied on the analysis set

forth in Chance a American Honda Motor Co., Inc., 93- 2582 ( La. 4/ 11/ 94), 635

So. 2d 177, 178, wherein the Louisiana Supreme Court considered whether an

amendment to a prescriptive period applied retroactively to revive an already

prescribed cause of action. Chance recognized that, once the defendant acquires

the right to plead the exception of prescription, a change in that right constitutes a

substantive change in the law as applied to the defendant. Chance, 635 So.2d at

178. Although prescriptive periods are typically treated as procedural laws and are

applied retroactively, if a statute that is procedural also has the effect of making a

change in the substantive law, it must be construed to operate prospectively only,
absent a " clear and unequivocal expression" of legislative intent to " revive

5 2016 La. Acts, No. 309, § 2, eff. August 1, 2016.

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prescribed claims." La. C. C. art. 6; 6 Chance, 635 So.2d at 178- 79.

The Barras court found that the 2016 Official Revision Comments

associated with La. R.S. 9: 406 reflected " clear and unequivocal" legislative intent

to retroactively repeal the two-year prescriptive period. Barras, 287 So. 3d at 820.

Although the comments are not the law, they can be useful in determining

legislative intent. Succession of Bradley, 2021- 01159 ( La. 3/ 25/ 22), 339 So. 3d

608, 613.

The 2016 Official Revision Comments to La. R.S. 9: 406 state:

The 2016 revision repeals the two-year prescriptive period previously
imposed for revocation of authentic acts of acknowledgment. That
prescriptive period was illogical where the acknowledgment was
executed by a man who was not the biological father of the child. The
Louisiana Supreme Court has held the execution of such an

acknowledgment to be an absolute nullity absent the requisite

biological relationship supporting it. Succession of Robinson, 654 So.
2d 682 ( La. 25 1995). To speak of prescription when a father seeks a

declaration of absolute nullity is inappropriate, as absolute nullities
are imprescriptible by nature. C. C. Art. 2032.

In Succession of Robinson, 94- 2229, ( La. 5/ 22/ 95), 654 So. 2d 682, 684, the

Louisiana Supreme Court stated that, absent a biological relationship, an avowal is

null. " A fact cannot be avowed when it has never existed." Id., citing 1 Planiol,

Treatise on the Civil Law § 1490( 2). Therefore, if the acknowledgment is null, it

produces no effects. Id.

We agree with the conclusion reached in Barras that, through the 2016

amendment to La. R.S. 9: 406( B), the legislature sought to codify this holding in

Robinson, in recognition of well- settled law that an absolute nullity is not subject

to prescription. La. C. C. art. 2032; Barras, 287 So. 3d at 820. The legislature' s

6 Louisiana Civil Code article 6 states, " In the absence of contrary legislative expression,
substantive laws apply prospectively only. Procedural and interpretative laws apply both
prospectively and retroactively, unless there is a legislative expression to the contrary."
Louisiana Revised Statutes 1: 2 reiterates, " No section of the Revised Statutes is retroactive
unless it is expressly so stated." The jurisprudence has consistently regarded these two provisions
as co -extensive, with La R.S. 1: 2 being construed to apply only to substantive and not procedural
or interpretative legislation. Church Mutual Ins. Co. v. Dardar, 2013- 2351 ( La. 5/ 7/ 14), 145
So. 3d 271, 279, n.9.

Z

express finding that, in this instance, prescription is " illogical" and " inappropriate,"

applies equally to absolutely null acknowledgements executed prior to the 2016

amendment. See 2016 Official Revision Comments to La. R.S. 9: 406. Thus, we

likewise find the legislature intended to retroactively remove the two-year

prescriptive period.

Additionally, La. R.S. 9: 392 sets forth the procedural requirements for the

execution of an authentic act of acknowledgment of paternity. Under this statute,

there is no prescriptive period for filing an action to void an authentic act of

acknowledgment when the father is not the biological father. La. R. S.

9: 392( A)(7)( b); Faucheux v. Faucheux, 00- 20 ( La. App. 5th Cir. 10/ 31/ 00), 772

So. 2d 237, 239. Retroactively repealing the two-year prescriptive period from La.

R.S. 9: 406( B) made this statute consistent with La. R.S. 9: 392( A)(7)( b), which was

in effect in 2016. See Kocher v. Truth in Politics, Inc., 2020- 01153 ( La. 12/ 22/ 20),

307 So. 3d 182, 184 ( The legislature is presumed to have acted with deliberation

and to have enacted a statute in light of the preceding statutes involving the same

subject matter.).

Based on the record before us, we conclude that William' s action to annul

the authentic act of acknowledgment of paternity of Z.M. is not prescribed

pursuant to La. R.S. 9: 406( B). The trial court erred in sustaining the exception of

prescription filed by Sheraunte'.

CONCLUSION

For the foregoing reasons, the September 16, 2021 judgment sustaining the

exception of prescription filed by Sheraunte' McKinley is reversed. This matter is

remanded to the trial court for further proceedings. Costs of this appeal are

assessed against Sheraunte' McKinley.

REVERSED AND REMANDED.