Succession of Clinton Cameron Schreiber

SUCCESSION OF CLINTON CAMERON NO. 24-CA-60
SCHREIBER
FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 810-343, DIVISION "D"
HONORABLE JOSEPH A. MARINO, III, JUDGE AD HOC, PRESIDING

November 20, 2024

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Jude G. Gravois,
Marc E. Johnson, and Stephen J. Windhorst

AFFIRMED
JGG
MEJ
SJW

COUNSEL FOR INTERVENOR/APPELLANT,
ROBERT HUTCHESON
William R. Penton, III
Maurice V. Piza
Martin J. McGuane

COUNSEL FOR PLAINTIFF/APPELLEE,
BRIAN GREWE, INDEPENDENT ADMINISTRATOR OF THE SUCCESSION
OF CLINTON CAMERON SCHREIBER AND CAROLE SCHREIBER GREWE
AND CLAIRE FRANCES SCHREIBER
M. Suzanne Montero
Meghan E. Carter
Graham H. Williams
Kevin J. Naccari, Jr.

COUNSEL FOR PLAINTIFF/APPELLEE,
LOUISIANA ATTORNEY GENERAL LIZ MURRILL
Elizabeth B. Murrill
Terrel T. Kent
Chimene Y. St. Amant
David J. Smith, Jr.

GRAVOIS, J.

Intervenor/appellant, Robert J. Hutcheson II,1 intervened in the Succession

of Clinton Cameron Schreiber, alleging that he was Mr. Schreiber’s

unacknowledged and unaffiliated biological son, and he desired to be recognized

as his biological son so that he could exercise his right to inherit from Mr.

Schreiber’s estate. The Succession filed exceptions of no right of action and

peremption to Mr. Hutcheson’s intervention, arguing that Mr. Hutcheson’s

intervention was well after the peremptive time period allowed by La. C.C. art.

197, entitled “Child’s Action to establish paternity; proof; time period,” for

requesting filiation. These exceptions were granted on April 28, 2023.

Mr. Hutcheson also filed a Motion for Declaratory Judgment in the

succession proceeding, seeking a declaration that La. C.C. art. 197 was

unconstitutional on equal protection and due process grounds. The trial court

denied the Motion for Declaratory Judgment on September 8, 2023, finding the

article constitutional. Mr. Hutcheson appeals the denial of his Motion for

Declaratory Judgment.

In brief to this Court, Mr. Hutcheson also appeals the judgment of April 28,

2023 which granted the Succession’s peremptory exceptions of no right of action

and peremption to Mr. Hutcheson’s intervention. As further explained below, the

April 28, 2023 judgment granting the Succession’s peremptory exceptions is an

interlocutory judgment that is not before this Court at this procedural juncture, and

thus any assignment of error particular to that judgment is pretermitted.2

1
In the record, Mr. Hutcheson is identified interchangeably as “Robert Hutcheson,”
“Robert Hutcheson, II,” “Robert J. Hutcheson, II,” and “Robert J. Hutcheson, III.”
2
In brief, Mr. Hutcheson argues that the trial court erred in granting the exceptions
because La. C.C. art. 197 is unconstitutional, which we consider herein in the context of the
appeal of the declaratory judgment.

24-CA-60 1

For the following reasons, we affirm the trial court’s declaratory judgment

of September 8, 2023, finding La. C.C. art. 197 constitutional. We remand the

matter to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

On July 14, 2020, Clinton Cameron Schreiber died intestate. His widow,

Peggy O’Neill Schreiber, petitioned the court to open his intestate succession on

September 18, 2020. Therein, she alleged that Mr. Schreiber had no children nor

had he adopted anyone, and was survived by her and his two adult sisters. The

succession was duly opened.3

Over two years later, on November 3, 2022, Mr. Hutcheson filed a Petition

to Intervene in the Succession of Clinton Cameron Schreiber, alleging that he (Mr.

Hutcheson) was the biological child of Mr. Schreiber. In response thereto, the

Succession filed an exception of vagueness and ambiguity, which the trial court

granted, allowing Mr. Hutcheson time to amend. Mr. Hutcheson then filed a First

Supplemental and Amending Petition for Intervention, expounding and clarifying

his allegations.

In his Petition to Intervene and his First Supplemental and Amending

Petition for Intervention, Mr. Hutcheson explained that his mother, Kathryn Jo

Curry Hutcheson, and Mr. Schreiber had never married. She had kept the identity

of his biological father a secret, only divulging this information to him about a

month before she passed away on July 29, 2018. Mr. Hutcheson was born on

February 21, 1976 and was given the name Robert Shawn Curry. When he was a

small child, his mother married Robert James Hutcheson, who adopted him in a

stepparent adoption proceeding in Tangipahoa Parish, wherein his name was

changed to Robert James Hutcheson, II. Mr. Hutcheson alleged that it was in the

3
On October 27, 2022, a consent judgment was entered appointing Brian Grewe,
husband of one of the surviving sisters, as independent administrator.

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“best interests of justice” to have his DNA compared to Mr. Schreiber’s living

sisters to show that he is biologically related to them and Mr. Schreiber. He stated

that he wished to intervene to exercise his right to receive his inheritance.

The Succession responded to the Petition to Intervene and the First

Supplemental and Amending Petition for Intervention on February 28, 2023 with

peremptory exceptions of no right of action and peremption. Therein, the

Succession argued that the unequivocal language of La. C.C. art. 197 operated to

extinguish Mr. Hutcheson’s right of action to filiate to the decedent by peremption,

the action having been asserted (through the intervention in the Succession) more

than one year after Mr. Schreiber’s death. The Succession prayed that Mr.

Hutcheson’s intervention be dismissed with prejudice. The matter was set for a

hearing on April 17, 2023.

On April 10, 2023, Mr. Hutcheson filed a Motion for Declaratory Judgment,

conceding that the Succession’s analysis of La. C.C. art. 197 was correct, but

asserting that Article 197 is unconstitutional. He argued that he had a fundamental

right to inherit from his father, and Article 197 adversely affected him because the

time limitation destroyed his ability to seek filiation and inheritance rights. He

argued that Article 197 was “unreasonable, arbitrary and capricious because it does

not serve a legitimate state purpose” and treats legitimate and illegitimate children

differently. He argued that the statute was a “flagrant” violation of equal

protection because it created a difference in the class of children who may inherit

from their fathers.

Also on April 10, 2023, Mr. Hutcheson filed an opposition to the

Succession’s exceptions of no right of action and peremption, asserting that Article

197 is unconstitutional for the same reasons argued in the Motion for Declaratory

Judgment.

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The matters came on for a hearing via Zoom on April 17, 2023.4 In a

written judgment dated April 28, 2023, the trial court granted the Succession’s

peremptory exceptions of no right of action and peremption, but allowed Mr.

Hutcheson fifteen days from the date of the hearing to cure the deficiencies in his

petitions to intervene, if he could. If he failed to do so, the court ruled that the

claims “shall be dismissed with prejudice.” The trial court also allowed Mr.

Hutcheson thirty days to cure any procedural deficiencies in his Motion for

Declaratory Judgment regarding the constitutionality of Article 197.

The designated appellate record before us fails to show that Mr. Hutcheson

amended his petitions for intervention within the fifteen days allowed by the trial

court in its April 28, 2023 judgment. However, on May 30, 2023, Mr. Hutcheson

filed a Supplemental Motion for Declaratory Judgment, adding paragraphs 12

through 14, which argued the applicability of the analysis in this Court’s decision

in Kinnett v. Kinnett, 17-625 (La. App. 5 Cir. 12/28/22), 355 So.3d 181

(“Kinnett I”), which had declared La. C.C. art. 198, relative to a biological father’s

ability to establish paternity to his child, unconstitutional as applied to the putative

father.

The State Attorney General’s Office filed a Memorandum in response to Mr.

Hutcheson’s motions for declaratory judgment, arguing for the constitutionality of

Article 197. The Succession adopted the arguments therein. The Succession filed

a supplemental opposition on July 26, 2023, noting that the Supreme Court had

recently reversed this Court’s ruling in Kinnett I, in Kinnett v. Kinnett, 23-0060

(La. 6/27/23), 366 So.3d 25, cert. denied sub nom. Andrews v. Kinnett, 144 S.Ct.

493, 217 L.Ed.2d 258 (2023), and arguing that any position of Mr. Hutcheson

premised on this Court’s now-reversed opinion in Kinnett I was now invalid.

4
The transcript of this hearing was not designated to be included in the appellate record.

24-CA-60 4

Mr. Hutcheson moved for and was granted leave to file a Second

Supplemental and Amending Motion for Declaratory Judgment on August 11,

2023. Therein, he made additional arguments relative to denial of due process and

violation of equal protection. The Attorney General filed an opposition thereto,

asserting all previously made arguments against the claim of Article 197’s

unconstitutionality, but conceding that Mr. Hutcheson’s Second Supplemental and

Amending Motion satisfied the requirements of Vallo v. Gayle Oil Company, Inc.,

94-1238 (La. 11/30/94), 646 So.2d 859, that the mover must particularize the

constitutional claims.

The declaratory judgment action came on for a hearing on August 29, 2023.

After consideration, the trial court orally denied Mr. Hutcheson’s request for

declaratory judgment, finding that Article 197 is constitutional under both the

Louisiana Constitution, as well as the United States Constitution. A written

judgment to this effect was signed on September 8, 2023.

On November 7, 2023, Mr. Hutcheson filed a motion for devolutive appeal,

seeking to appeal the judgment on the motion for declaratory relief dated “August

30, 2023” and mailed on September 12, 2023.5 Mr. Hutcheson designated only the

August 29, 2023 transcript and other particular pleadings to be included in the

appellate record.

JURISDICTIONAL NOTE

In brief, Mr. Hutcheson seeks this Court’s appellate review of the judgment

of April 28, 2023 which granted the Succession’s peremptory exceptions of no

right of action and peremption to his petition for intervention, as well as the

September 8, 2023 judgment denying his motion for declaratory judgment.

5
It appears that “August 30” is a typo, as the hearing was held on August 29, 2023 and
the judge ruled from the bench. A written judgment was entered on September 8, 2023; notice of
judgment was mailed by the Clerk of Court on September 11, 2023.

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As previously noted, however, Mr. Hutcheson’s notice of appeal specifically

appeals only the latter judgment, and designates only the transcript of the August

29, 2023 hearing pertaining to this judgment. A judgment on a motion for

declaratory judgment is a final judgment, as per La. C.C.P. art. 1871.6

The judgment granting the Succession’s peremptory exceptions of no right

of action and peremption is interlocutory, because it determined preliminary

matters in the intervention and it did not dismiss the intervention. As this Court

explained in Sporl v. Sporl, 00-1321 (La. App. 5 Cir. 5/30/01), 788 So.2d 682,

683-84, writ denied, 01-1926 (La. 10/12/01), 799 So.2d 506, an interlocutory

judgment determines “preliminary matters in the course of the action” and is

generally non-appealable, citing La. C.C.P. arts. 1841 and 2083.

The April 28, 2023 judgment did not dismiss Mr. Hutcheson’s intervention.

A ruling that sustains a peremptory exception and allows a period of time for an

amendment of the petition is not a final judgment or an appealable interlocutory

judgment. Atchafalaya Basinkeeper v. Bayou Bridge Pipeline, LLC, 18-0417 (La.

App. 1 Cir. 2/22/19), 272 So.3d 567. Such a judgment merely permits an

amendment within the delay allowed by the court as provided by La. C.C.P. art.

934, and does not dismiss the plaintiff’s suit nor any party to the suit. This is so

because even if the period within which to amend has passed, the plaintiff may still

amend unless the defendant has moved for dismissal. Schroeder v. Bd. of Sup’rs of

Louisiana State Univ., 540 So.2d 380, 382 (La. App. 1 Cir. 1989).7 The designated

6
La. C.C.P. art. 1871 states:
Courts of record within their respective jurisdictions may declare rights, status,
and other legal relations whether or not further relief is or could be claimed. No
action or proceeding shall be open to objection on the ground that a declaratory
judgment or decree is prayed for; and the existence of another adequate remedy
does not preclude a judgment for declaratory relief in cases where it is
appropriate. The declaration shall have the force and effect of a final judgment or
decree. (Emphasis added.)
7
See also Landry v. Les Fontaine Funeral Home, Inc., 99-1157 (La. App. 3 Cir. 12/8/99),
755 So.2d 901, 903-04 (“despite the passage of the amendment period and the provision that the
matter shall be dismissed absent such an amendment, the matter is not dismissed until a formal

24-CA-60 6

record before us fails to show that Mr. Hutcheson amended his petition for

intervention within fifteen days, or at all, but the portion of the judgment stating

that the intervention shall be dismissed with prejudice if not amended within

fifteen days is not self-activating. A subsequent judgment of dismissal must be

moved for and entered to dismiss the intervention. Moreover, the trial court’s

ruling on the motion for declaratory judgment did not effectuate the dismissal of

the intervention.8

When an unrestricted appeal is taken from a final judgment, the appellant is

entitled to a review of all adverse interlocutory rulings prejudicial to him, in

addition to the review of the correctness of the final judgment from which the party

has taken the appeal. Sporl, supra, 788 So.2d at 683-84, citing Bielkiewicz v. Ins.

Co. of North America, 201 So.2d 130 (La. App. 3 Cir. 1967). While the judgment

herein on the exceptions is interlocutory, we find that it is not before this Court at

this procedural juncture because it did not decide preliminary matters in the action

for declaratory judgment. See Sporl, supra, 788 So.2d at 683-84.9 The Motion for

Declaratory Judgment is a separate and distinct action from the intervention. The

exceptions were filed to defeat Mr. Hutcheson’s intervention in the succession, not

his Motion for Declaratory Judgment. Thus, the judgment granting the exceptions

was not legally preliminary to the declaratory judgment proceeding. Accordingly,

judgment of dismissal is subsequently perfected ... if no formal motion for dismissal has been
filed, an amendment can be made even after the expiration of the time set forth by the trial
court.”).
8
Generally, the purpose of a declaratory judgment is simply to establish rights of parties
or to express opinion of the court on a question of law without ordering anything to be done.
Schmill v. St. Charles Parish, 96-894 (La. App. 5 Cir. 3/12/97), 692 So.2d 1161. A declaratory
judgment action is an appropriate means of testing the constitutionality of a statute. Westlawn
Cemeteries, L.L.C. v. Louisiana Cemetery Board, 21-01414 (La. 3/25/22), 339 So.3d 548.
9
“Here, the ruling on the sources of Sporl’s income was necessary to later accurately
calculate Sporl’s child support obligations, and thus, determined a preliminary matter.
Therefore, when Sporl appealed the trial court’s final determination of his child support
responsibility, he also properly appealed the trial court’s earlier judgment regarding the sources
of that income. Accordingly, we review the evidence leading to the interlocutory decree.”

24-CA-60 7

the April 28, 2023 judgment on the peremptory exceptions is not before this Court

at this procedural juncture, and is thus not reviewed herein.

CONSTITUTIONALITY OF LA. C.C. ART. 197

La. C.C. art. 197 states:

A child may institute an action to prove paternity even though he is
presumed to be the child of another man. If the action is instituted
after the death of the alleged father, a child shall prove paternity by
clear and convincing evidence.

For purposes of succession only, this action is subject to a peremptive
period of one year. This peremptive period commences to run from
the day of the death of the alleged father.
(Emphasis added.)

Mr. Hutcheson did not file his intervention until more than two years after

Mr. Schreiber’s death. Thus, the Succession argued that the cause of action to

intervene for succession purposes was perempted under the clear language of

Article 197. The crux of Mr. Hutcheson’s argument regarding the constitutionality

of Article 197 is that the one-year peremptive period “destroyed” his right to

establish paternity. He argues that it unfairly discriminates against illegitimate

children like himself, preventing him from exercising his fundamental right to

inherit from his father. He argues that he is being denied equal protection under

the law because an unaffiliated child like himself is subject to a one-year

peremptive period (pursuant to Article 197), while legitimate children are subject

to a thirty-year prescriptive period with regard to successions (pursuant to La. C.C.

art. 3502). He also argues that the statute violates his rights to due process.

As a general rule, statutes are presumed to be constitutional. W. Feliciana

Par. Gov’t v. State, 19-00878 (La. 10/11/19), 286 So.3d 987, 993-94. Because the

provisions of the Louisiana Constitution are not grants of power, but instead are

limitations on the otherwise plenary power of the people, exercised through the

legislature, the legislature may enact any legislation that the constitution does not

prohibit. Id. Because a state statute is presumed constitutional, the party

24-CA-60 8

challenging the statute bears the burden of proving its unconstitutionality. Id.; see

also State v. Brenner, 486 So.2d 101 (La. 1986). However, this presumption does

not apply when a statute infringes upon a fundamental right. State v. Spell, 21-

00876 (La. 5/13/22), 339 So.3d 1125, 1131.

Unless the fundamental rights or privileges and immunities of a person are

involved, a strong presumption exists that the legislature in adopting legislation has

acted within its constitutional authority. Polk v. Edwards, 626 So. 2d 1128, 1132

(La. 1993). This presumption is especially forceful in the case of statutes enacted

to promote a public purpose. Id. Where fundamental rights are at stake, due

process is satisfied only when the government has a compelling interest that

justifies infringing upon the right, and the law employs the least restrictive means

to achieve the government’s objective. State v. Draughter, 13-0914 (La.

12/10/13), 130 So.3d 855, 863.

Whether a statute is constitutional is a question of law. Accordingly, our

standard of review is de novo. State in Int. of M.H., 23-326 (La. App. 5 Cir.

12/27/23), 379 So.3d 759, 763, writ denied, 24-00122 (La. 9/4/24), 391 So.3d

1057.

DUE PROCESS

La. Const. Ann. art. I, § 2 states: “No person shall be deprived of life,

liberty, or property, except by due process of law.” Exactly what process is due is

dependent upon the peculiar facts involved. Guo v. Southern University & A&M

College Baton Rouge, 342 So.3d 70, 21-1163 (La. App. 1 Cir. 4/8/22). Due

process is both procedural and substantive.

Substantive Due Process

In order to prove a violation of substantive due process, Mr. Hutcheson

“must first establish the existence of a constitutionally protected property or liberty

interest.” Coxe Prop. Mgmt. & Leasing v. City of New Orleans, 19-0911 (La. App.

24-CA-60 9

4 Cir. 4/8/20), 294 So.3d 1098, 1104, citing Boudreaux v. Larpenter, 11-0410 (La.

App. 1 Cir. 6/1/12), 110 So.3d 159, 170. “Once that interest has been established,

a violation of substantive due process still requires arbitrary and capricious conduct

by the governing authority.” Id. “[G]overnment action comports with substantive

due process if the action is rationally related to a legitimate governmental interest.”

Id.

Upon review, we find that Mr. Hutcheson has failed show that Article 197’s

peremptive time limit is arbitrary or capricious. This time limit, considered by the

legislature when adopting the code article, is rationally related to the legitimate

governmental interest of orderly descent and distribution of property, the stability

of land titles, and the finality of judgments of possession. The State’s interest in

the orderly descent and distribution of property, the stability of land titles, and the

finality of judgments is no mere hollow assertion, as Mr. Hutcheson argues, but is

extensively acknowledged throughout this State’s statutory law, as well as in

jurisprudence, as a legitimate government purpose. See, e.g., Succession of

Herndon, 45,146 (La. App. 2 Cir. 4/28/10), 36 So.3d 434, 436, and Comments to

Article 197.10 Mr. Hutcheson has not shown otherwise.

It is irrelevant that in Mr. Hutcheson’s case, no judgment of possession had

yet been rendered when his one-year peremptive period had elapsed. Article 197’s

peremptive time limit does not state that a succession must be opened for it to

apply.

Procedural Due Process

The central meaning of procedural due process is well settled: Persons

whose rights may be affected by state action are entitled to be heard, and in order

10
Additionally, the public records doctrine is founded upon our public policy and social
purpose of assuring stability of land titles. First NBC Bank v. Gusman, 11-0458 (La. App. 4 Cir.
9/28/11), 79 So.3d 353, 357, writ denied, 11-2595 (La. 2/3/12), 79 So.3d 1030, citing Camel v.
Waller, 526 So.2d 1086, 1089 (La. 1988).

24-CA-60 10

that they may enjoy that right, they must first be notified. In re Adoption of B.G.S.,

556 So.2d 545, 549 (La. 1990). It is equally fundamental that the right to notice

and an opportunity to be heard must be granted at a meaningful time and in a

meaningful manner. Id.

In this case, the enactment of Act 192 of 2005 (Article 197) by the Louisiana

State Legislature is properly characterized as a legislative act. When a

governmental action is characterized as legislative, procedural due process

requirements do not apply. Messina v. St. Charles Parish Council, 03-644 (La.

App. 5 Cir. 12/30/03), 865 So.2d 158, 161, writ denied, 04-0285 (La. 3/26/04), 871

So.2d 354, cert denied, 544 U.S. 1060; see also Boudreaux v. Larpenter, 11-0410

(La. App. 1 Cir. 6/1/12), 110 So.3d 159, 170.

EQUAL PROTECTION

La. Const. Art. I, § 3, entitled “Right to Individual Dignity,” states, in

pertinent part: “No person shall be denied the equal protection of the laws. No law

shall discriminate against a person because of race or religious ideas, beliefs, or

affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate

against a person because of birth, age, sex, culture, physical condition, or political

ideas or affiliations.”

The Fourteenth Amendment to the United States Constitution states: “No

State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.”

Mr. Hutcheson argues that as applied to him, under the facts of this case,

Article 197 is unconstitutional because it unduly interferes with his “fundamental

right” to inherit from his father. He argues that equal protection means that the law

will not discriminate between people of different groups in our society. He argues

24-CA-60 11

that Article 197 treats illegitimate children such as him drastically differently from

legitimate children.

There is no fundamental right in the State of Louisiana for any child, filiated

or unaffiliated, over 23 years of age and not mentally or physically infirm, to

inherit from their parents. In 1995, the voters of this State amended the Louisiana

Constitution to abolish forced heirship except for children under 23 years of age,

with an exception for older children with mental incapacity or physical infirmity

who are incapable of taking care of their person, which is not applicable herein.

Supplemental legislation to abolish forced heirship became effective January 1,

1996. See In re Succession of Boyter, 99-0761 (La. 1/7/00), 756 So.2d 1122. Mr.

Hutcheson is admittedly over 23 years of age, and at all relevant times in this

litigation, has not been mentally or physically infirm.

The equal protection clause does not require absolute equality or precisely

equal advantages. Beauclaire v. Greenhouse, 05-0765 (La. 2/22/06), 922 So.2d

501, 505, citing McCormick v. Hunt, 328 So.2d 140, 142 (La. 1976). It is possible

for parties to be treated differently without violation of equal protection rights.

Equal treatment of all claimants in all circumstances is not required. Id.

In Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d

1094 (La. 1985), the Supreme Court enunciated a three-tier evaluation to determine

whether there was a violation of equal protection:

Article I, Section 3 commands the courts to decline enforcement of a
legislative classification of individuals in three different situations: (1)
When the law classifies individuals by race or religious beliefs, it shall
be repudiated completely; (2) When the statute classifies persons on
the basis of birth, age, sex, culture, physical condition, or political
ideas or affiliations, its enforcement shall be refused unless the state
or other advocate of the classification shows that the classification has
a reasonable basis; (3) When the law classifies individuals on any
other basis, it shall be rejected whenever a member of a disadvantaged
class shows that it does not suitably further any appropriate state
interest.

24-CA-60 12

Article 197 does not classify children by birth, contrary to Mr. Hutcheson’s

assertion. It makes no mention of legitimacy or illegitimacy, and permits children

who are presumed to be the child of another man to institute an action to prove

paternity to an alleged father.11 Therefore, the third level of scrutiny would appear

to apply. Under the third level of scrutiny, where the challenged classification is

based on grounds other than discrimination because of birth, race, age, sex, social

origin, physical condition, or political or religious ideas, the law creating the

classification is presumed to be constitutional. Thus, the party challenging the

constitutionality of the law has the burden of proving it unconstitutional by

showing the statute fails to serve a legitimate government purpose. Beauclaire v.

Greenhouse, 922 So.2d at 505-06, citing State v. Expunged Record (No.) 249,044,

03-1940 (La. 7/2/04) 881 So.2d 104, 111.

Assuming arguendo that Article 197 classifies persons by birth, under the

“medium” level of scrutiny stated in Sibley v. Board of Supervisors of Louisiana

State University, supra, the State must show that the classification has a reasonable

basis. The result of such analysis does not change the result, as the one-year

peremptive period has a reasonable basis, as stated in the Comments to Article 197,

that being, again, the stability of land titles and the finality of judgments of

possession.

Mr. Hutcheson relies heavily on the Supreme Court case of Trimble v.

Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) in support of his

claims. However, that case is easily distinguishable. The Trimble court struck

down an Illinois statute that precluded any illegitimate child, even a child

acknowledged and supported, or where a paternity order had previously been

entered, from inheriting from their father under any circumstances.

11
Article 197 recognizes the concept of dual paternity.

24-CA-60 13

Article 197’s peremptive time period did not preclude Mr. Hutcheson from

asserting a claim in Mr. Schreiber’s succession timely. It is undisputed that Mr.

Hutchison mother told him before she died in 2018 that Mr. Schreiber was his

biological father. Mr. Hutcheson failed to act on this information prior to Mr.

Schreiber’s death, other than to “friend” Mr. Schreiber on Facebook and send him

a message that his mother (Kathryn Curry Hutcheson) had passed away. He did

not initiate a filiation proceeding during the approximately two remaining years in

the life of Mr. Schreiber. He explained that he did not do so between the time of

his mother’s death and Mr. Schreiber’s death because he was grieving and

distraught over his mother’s death and other compelling issues in his life.

Mr. Hutcheson testified at the declaratory judgment hearing that he had seen

the notice of Mr. Schreiber’s death on Facebook shortly after it occurred.

Apparently, Mr. Hutcheson contacted Mr. Schreiber’s widow and his two sisters

with the allegation of his paternity, within the one-year period after Mr.

Schreiber’s death. Still, Mr. Hutcheson did not act in any way to legally establish

filiation until he intervened in the Succession in November of 2022, more than two

years after Mr. Schreiber’s death. After Mr. Schreiber’s death, he explained his

inaction was based on his lack of knowledge that he needed to file an action to

legally establish filiation. Because peremption runs against everyone and is not

suspended or interrupted, these reasons are not relevant to the ultimate decision on

the declaratory judgment, but they illustrate that Article 197 in fact afforded Mr.

Hutcheson ample time in which to assert his rights.

Mr. Hutcheson argues that Article 197’s peremptive time period limits the

ability to filiate timely because it is “controlled” by “adverse” actors, such as a

mother and/or father, who possess the requisite information, but might prevent an

illegitimate child’s ability to filiate to a deceased father by withholding the

information until after the peremptive period has elapsed. As the Succession

24-CA-60 14

pointed out, the parents’ action or inaction is not state action, and thus does not

invoke constitutional concerns. And, we reiterate that in Mr. Hutcheson’s

particular case, his mother informed him of the fact of his paternity when he had

ample remaining time to investigate and assert his claim.

Mr. Hutcheson also argues that the trial court erred in not allowing him to

introduce hearsay evidence showing his attempts to investigate his paternity. He

argues that the evidence was not introduced to prove the truth of the matter, i.e., his

paternity, but rather was admissible as evidence of his efforts to investigate his

paternity. This evidence consisted of the substance of text messages and Facebook

messenger messages between him and Mrs. Schreiber and Mr. Schreiber’s sisters,

as well as a screenshot of the Ancestry.com website allegedly showing that Mr.

Hutcheson’s DNA matched Mr. Schreiber’s. Upon review, we find no error in the

trial court’s evidentiary rulings. Mr. Hutcheson has not shown that the evidence in

question were exceptions to the hearsay rule, as per La. C.E. art. 803, or, in the

case of the alleged screen shot from Ancestry.com, was properly authenticated, as

per La. C.E. art. 901, et seq. Further, the declaratory judgment proceeding

concerned the constitutionality of Article 197, which is a question of law, as

previously stated herein. The hearsay evidence in question was not relevant to this

legal question.12

Finally, we observe that Mr. Hutcheson is not precluded by Article 197’s

peremption from filing a proceeding to filiate to Mr. Schreiber for purposes other

than the succession, as the time limitation in paragraph two applies only for

“purposes of succession.”

12
Mr. Hutcheson argues that his evidence showed his due diligence investigating his
paternity, which supports his claim that the court should order DNA testing. DNA testing is not
relevant to the constitutional issues involved herein.

24-CA-60 15

CONCLUSION

For the foregoing reasons, upon de novo review, we agree with the trial

court’s ruling and conclude that La. C.C. art. 197 is constitutional.

DECREE

The trial court’s declaratory judgment of September 8, 2023, finding La.

C.C. art. 197 constitutional, is affirmed. The matter is remanded to the trial court

for further proceedings.

AFFIRMED

24-CA-60 16

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
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IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
NOVEMBER 20, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-CA-60
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE JOSEPH A. MARINO, III (DISTRICT JUDGE)
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