Steven Marcus Kelley v. Jeannie Marie Kelley (Now Jenkins), Andrea Gail Kelley, and Hannah Grace Kelley

Judgment rendered December 20, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,358-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STEVEN MARCUS KELLEY Appellant

Versus

JEANNIE MARIE KELLEY Appellees
(NOW JENKINS), ANDREA
GAIL KELLEY, AND
HANNAH GRACE KELLEY

*****
Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 2022-1731

Honorable Daniel J. Ellender, Judge

*****
LAYNE M. ADAMS Counsel for Appellant

SNELLINGS, BREARD, SARTOR, Counsel for Appellees
INABNETT & TRASCHER, LLP
By: Wendy E. W. Giovingo

*****

Before PITMAN, COX, STEPHENS, THOMPSON, and HUNTER, JJ.

COX, J., concurs with written reasons.

THOMPSON, J., concurs with written reasons.

PITMAN, J., dissents with written reasons.

HUNTER, J., dissents with written reasons.

STEPHENS, J.

Steven Marcus Kelley (“Steven”) and Jeannie Marie Kelley (now

Jenkins) (“Jeannie”) were married on December 10, 2011. At that time,

Jeannie had two children, Andrea Gail, d.o.b. 5-21-03, and Hannah Grace,

d.o.b. 3-21-07. Neither of the children are the biological children of Steven,

something that both parties knew, and there is no other presumptive father

involved.

On August 21, 2012, Steven, with Jeannie’s concurrence, formally

acknowledged Hannah Grace in an Acknowledgment of Paternity Affidavit

form for a child born outside of marriage prepared by the State of Louisiana

(VRR-44 2P (05/10)). On August 18, 2014, Steven, again with Jeannie’s

concurrence, acknowledged Andrea Gail in an Acknowledgment of Paternity

Affidavit for a child born outside of marriage form prepared by the State of

Louisiana (VRR-44 2P (1/05)). Again, these acknowledgements were

entered into by both Steven and Jeannie fully aware that he was not the

biological father of either child.

Both parties agree that before each acknowledgment, the notary public

failed to apprise them, either in writing or orally, of the required information

set forth in La. R.S. 9:392. Steven asserts that the reason he formally

acknowledged each child was to give them his last name.

On February 6, 2019, Steven and Jeannie physically separated. On

June 20, 2019, Jeannie filed an amended and supplemental petition for

divorce requesting that Steven be ordered to pay child support. On May 16,

2022, Steven filed a petition to revoke his formal acknowledgment of the

two children. On June 8, 2022, Jeannie filed an exception of no cause of

action and peremption. On November 29, 2022, after a hearing, the trial

court sustained Jeannie’s exception of peremption and dismissed Steven’s

petition for revocation of the acknowledgments of paternity.1 Steven has

appealed from this adverse judgment.

DISCUSSION

Steven alleges that the trial court’s judgment is erroneous and sets

forth three assignments of error: (1) the trial court erred in finding that the

2016 amendment to La. C.C. 195 was procedural rather than substantive and

applying the current version of the article to his action to revoke the

acknowledgments; (2) the trial court erred in failing to find that

acknowledgments, signed by both parents attesting that he was the biological

father of the girls, were absolute nullities that were not subject to

preemption; and (3) the trial court erred in failing to find that the notary’s

failure to advise him and Jeannie of the rights and requirements set forth in

La. R.S. 9:392(A)(1)-(8) in conjunction with the execution of both

acknowledgments as mandated by Louisiana law.

Jeannie contends that the trial court did not err in sustaining the

exception of preemption. First, the trial court properly applied La. C.C. art.

195 as amended in 2016 to the facts of this case, as Steven knew when he

signed the acknowledgments he had become the legal father to the girls.

Jeannie next asserts that the trial court did not err in finding that the

acknowledgments were not absolute nullities. In support, she cites Wetta v.

Wetta, 21-92 (La. App. 3 Cir. 6/2/21), 322 So. 3d 365, writ denied, 21-

00940 (La. 10/19/21), 326 So. 2d 255. As for Steven’s argument that the

1
No ruling was made by the trial court on the exception of no cause of action, so
it is deemed denied.

2

trial court’s judgment is erroneous because the requirements of La. R.S.

9:392 were not met, Jeannie disagrees, but even so, application of the

unclean hands doctrine would prevent Steven from maintaining his cause of

action.

In his second assignment of error, Steven asserts that the trial court

erred in finding that an absolute nullity could be perempted. Steven

concedes that under La. C.C. art. 195, the peremptive period is 180 days.

Furthermore, that 180 days had passed when his petition to revoke the

acknowledgments had been filed. However, Steven contends that a false

acknowledgment is no acknowledgment at all. It is an absolute, not a

relative nullity, and as such, produces no effects whatsoever.

La. C.C. art. 195 provides:

A man who marries the mother of a child not filiated to another
man and who, with the concurrence of the mother,
acknowledges the child by authentic act is presumed to be the
father of that child.
The husband may disavow paternity of the child as provided in
Article 187. Revocation of the authentic act of
acknowledgment alone is not sufficient to rebut the
presumption of paternity created by this Article.
The action for disavowal is subject to a peremptive period of
one hundred eighty days. This peremptive period commences
to run from the day of the marriage or the acknowledgment,
whichever occurs later.

La. R.S. 9:406(B) provides:

(1) If the notarial act of acknowledgment has not been revoked
within sixty days in accordance with the provisions of
Subsection A of this Section, a person who executed an
authentic act of acknowledgment may petition the court to
annul the 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.

(2) 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
3

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.

(3) If the court finds based upon the evidence presented at the
hearing that there is substantial likelihood that fraud, duress,
material mistake of fact or error existed in the execution of the
act or that the person who executed the authentic act of
acknowledgment is not the biological father, then, and only
then, the court shall order genetic tests pursuant to R.S. 9:396.
Nothing herein shall preclude the petitioner from presenting
any other evidence as a substitute for the genetic tests if it is not
possible to conduct such tests.

(4) The test results certified under oath by an authorized
representative of an accredited laboratory shall be filed with the
court and shall be admissible on the issue of paternity pursuant
to R.S. 9:397.3. If the test results show a statistical probability
of ninety-nine point nine percent or greater, a rebuttable
presumption of paternity shall be established. If the
acknowledged father is found excluded by the tests, an action
seeking support or an established order of support shall be
dismissed and the acknowledgment of paternity shall be
annulled. A judgment dismissing an established order of
support does not affect any child support payment or arrearages
paid, due or owing prior to the date the annulment was filed.

(5) The burden of proof in this proceeding shall be upon the
party seeking to revoke the authentic act of acknowledgment.
The testimony of the petitioner shall be corroborated by other
evidence.

The legislative comments to the 2016 amendment of 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
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, 94-2229 (La. 5/22/95), 654 So. 2d 682.
To speak of prescription when a father seeks a declaration of
absolute nullity is inappropriate, as absolute nullities are
imprescriptible. La. C.C. art. 2032.

4

La. C.C. art. 1833(A) provides in part that an authentic act is a writing

executed before a notary public or other officer authorized to perform that

function, in the presence of two witnesses, and signed by each party who

executed it, by each witness, and by each notary public before whom it was

executed. La. C.C. art. 1835 provides that an authentic act provides full

proof of the agreement it contains, as against the parties, their heirs, and

successors by universal or particular title. La. C.C. art. 1848 provides that

testimonial or other evidence may not be admitted to negate or vary the

contents of an authentic act or an act under private signature. Nevertheless,

in the interest of justice, that evidence may be admitted to prove such

circumstances as a vice of consent or to prove that the written act was

modified by a subsequent and valid oral agreement. Likewise, where it is

alleged that the authentic act is made in contravention to the law, evidence

relevant to this fact is admissible to prove what legal effect, if any, the act

will be given. Succession of Robinson, 99-2229 at p. 5, 654 So. 2d at 685.

In Succession of Robinson, supra at p. 4, 654 So. 2d at 684, the court

declared that the validity of a formal acknowledgment depended upon

whether the decedent was the intervenors’ (the decedent’s acknowledged

children’s) biological father. The court noted that, although C.C. art. 203,

which provided for the formal acknowledgment of an illegitimate child, does

not expressly preclude executing an acknowledgment where no biological

relationship exists, this conclusion is self-evident and definitional of an

acknowledgment. “Absent a biological relationship, the avowal is null. ‘A

fact cannot be avowed when it has never existed.’ 1 M. Planiol, Treatise on

the Civil Law § 1490(2) (La. St. L. Inst. Translation 1959)). If the

acknowledgment is null, it produces no effects.” Id.
5

In McKinley v. McKinley, 22-0132 (La. App. 1 Cir. 9/16/22), 352 So.

3d 1001, a husband filed a petition to annul his acknowledgments of

paternity of his wife’s two minor children based upon DNA tests

establishing a zero probability of his paternity.2 Following a trial, the judge

sustained the wife’s exception of prescription and dismissed the father’s

petition. The First Circuit reversed, in part based on Barras v. O’Rourke,

19-412 (La. App. 3 Cir. 12/18/19), 287 So. 3d 817, a case in which the Third

Circuit held that the 2016 revision to La. R.S. 9:406(B) applied retroactively.

Specifically, the Court in Barras found that the legislature’s intent was

“clear and unequivocal” that its repeal of the two-year prescriptive period

previously set forth in that statute was retroactive. Id., 19-412 at p. 4, 287

So. 3d at 820. The First and Third Circuits also observed in McKinley, 22-

0132 at p. 6, 352 So. 3d at 1004, and Barras, supra, that it was with the

2016 amendment to La. R.S. 9:406(B) that the legislature codified the

holding in Succession of Robinson, supra, in recognition of the well-settled

principle that an absolute nullity is not subject to prescription or peremption.

The Third Circuit, in a similar case, reached a different result. See,

Wetta v. Wetta, 21-92 (La. App. 3 Cir. 6/2/21), 322 So. 3d 365, writ denied,

21-00940 (La. 10/19/21), 326 So. 2d 255. This Court recognizes the conflict

between its holding today and that of Wetta, supra. Nonetheless, in keeping

with the rationale set forth in Succession of Robinson, and reiterated in

McKinley and Barras, we find that Steven’s acknowledgments are absolute

nullities, and as such, productive of no legal effects from their execution.

Therefore, his right to rescind his acknowledgments has not expired as it is

2
One of the acknowledgments was effected by the father’s signature on the
child’s birth certificate; the other was made in an authentic act of acknowledgment.
6

imprescriptible by nature. See, Sandi A. Varnado, Note, A Primer on

Biological Filiation in Louisiana, 69 Loy. L. Rev. 237, 263 (2022). An

acknowledgment of paternity based upon biology alone seems to be firmly

rooted in Louisiana’s civilian tradition, notwithstanding other legitimate

societal concerns and public interests.

The obvious option for a non-biological father who wants to create a

paternal relationship with a child who has no presumptive father would be

adoption. See, La. C.C. art. 199, La. Ch. C. arts. 1167, et seq. Based on our

determination that the acknowledgments in this case are absolute nullities,

there is no need for us to discuss the other two assignments of error. When

as in the case sub judice, the father is not the biological father, there is no

prescriptive period for filing an action to rescind an acknowledgment. La.

R.S. 9:392(A)(7)(b); McKinley, supra; Faucheux v. Faucheux, 00-20, p. 3

(La. App. 5 Cir. 10/31/00), 772 So. 2d 237, 239. If Steven can prove by

clear and convincing evidence that he is not the father of Andrea Gail and

Hannah Grace, his right to annul his acknowledgment of paternity has not

been perempted.

CONCLUSION

For the reasons set forth above, we reverse the judgment of the trial

court and remand for further proceedings consistent with this opinion. Costs

of the appeal are to be paid by both parties, each paying one-half of the total

amount.

REVERSED; REMANDED.

7

COX, J., concurs with written reasons.

I agree with the ruling of the majority opinion, and I write to highlight

the history of La. C.C. art. 195, which states, “A man who marries the

mother of a child not filiated to another man and 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 that child.” (emphasis added).

Article 195 is located under “Section 2. Proof of Paternity.” Even

though titles within the civil code are not law, the legislature found fit to

include this article under this section of the civil code. Comment (a) to this

article states that this article corresponds to the circumstances of former La.

C.C. art. 198 (rev. 1979) (hereinafter referred to as the “Old Article”), which

recognized legitimation of the child by subsequent marriage. The Old

Article and its predecessors, which can be tracked to its French roots, stated

that a child born outside of marriage could be legitimated by “the

subsequent marriage of their father and mother, whenever the later have

legally acknowledged them[.]” (emphasis added). Therefore, our current

article was created to correspond with the circumstances in which a child is

born outside of marriage and the parents marry after the birth of the child.

The Old Article was later interpreted to mean the acknowledgment was for a

biological father; although historically, the term “biological” was not

incorporated into our laws because the original language predates our 1804

Civil Code.

The current article brings with it our long-standing legal tradition that

only a biological father may acknowledge an illegitimate child. Succession

of Robinson, supra; J. R. Trahan, Glossae on the New Law of Filiation, 67

La. L. Rev. 387, 435 (2007); Verlander, 176. This is the case for
1

acknowledgements under both La. C.C. arts. 195 and 196. See Trahan, 426.

Therefore, as stated by the majority opinion, because Kelley declares he is

not the biological father, the acknowledgement would be an absolutely

nullity and there is no peremptive or prescriptive period. The matter should

be remanded for further proceedings concerning the annulment of his

acknowledgment.

The 2016 Revision Comment to La. R.S. 9:406, which is quoted in

the majority opinion, also supports this line of reasoning that an

acknowledgment by someone other than the biological father is absolutely

null. The legislature recognized the judicial requirement of a biological

relationship in acknowledgments. Until the legislature expressly overrules

the judicial tradition of holding an acknowledgment to be absolutely null

without a biological relationship, applying the “plain meaning” without

considering the history and intent of the enactors goes against the provisions

of La. C.C. arts. 9 and 10. The process for acknowledgment should not be

used to subvert our adoption procedures to suit personal conveniences.

Neither party in this matter has clean hands.

Because of the contrary holding in Wetta, supra, there is a split in the

circuit courts regarding acknowledgments, the requirement of a biological

relationship, absolute nullities, disavowing, and peremption/prescription.

Based on the history of La. C.C. art 195 and the relevant jurisprudence, I

vote with the majority to reverse and remand.

2

THOMPSON, J., concurs with written reasons.

I concur in the opinion and write separately to address two lingering

concerns; (1) the implications of the abuse of the expedited process in our

laws of the use of a sworn acknowledgment of paternity to establish

paternity of children born out of wedlock and uniting those families; and (2)

whether the self-serving3 actions of executing a fraudulent acknowledgment

of paternity and then challenging the legitimacy of that document to escape

child support comes without consequences. Mr. Kelley originally exercised

an expedited process by fraudulently acknowledging children who were not

his biological children to accomplish the same legal result as though he had

adopted them. His shortcut came without the time and expense of an

adoption process and without the included protections afforded the actual

biological parents had there been an adoption proceeding and hearing. He

now challenges his own actions in that expedited process to avoid paying

child support for his fraudulently acknowledged children.

Fraudulent acknowledgments abuse the system designed to expedite

fathers acknowledging children born out of wedlock and clarify the

corresponding legal rights and responsibilities of the parties. Abuse of that

process for individual convenience is injurious to the confidence of our

citizens in our laws that allow for expedited consolidation of families and

should be confronted seriously. The fraudulent affidavits in the present

matter are false public records which injure our public records, and

3
Whether there were corresponding tax benefits with added dependents it not
included in the record but seem likely, and he avoided the costs and delays associated
with a legitimate adoption proceeding.

1

appropriately expose the parties to possible prosecution.4 Here, a father is

attempting to avoid child support obligations by pointing to his own

fraudulent sworn document as a nullity. Such actions are not without

consequences. The shield asserted by the ineffectiveness of the sworn

affidavit also serves as the sword for prosecuting the original filing of such a

document.

Any party asserting their acknowledgment of paternity was an

absolute nullity due to its fraudulent nature may well use the law to avoid

the obligations of paying child support. However, those same individuals

should be held to account by the law for their fraudulent actions and abuse

of the process that is designed to help strengthen families, not create a

manipulative safe harbor from child support.

4
La. R.S. 14:132 and La. R.S. 14:133
2

PITMAN, C. J., dissents.

I respectfully dissent.

This case is not a difficult one to decide. It is controlled by La. C.C.

art. 195, which was enacted in 2005 as a revision to former filiation articles,

and before a subsequent revision in 2016. The 2005 version of La. C.C.

art. 195 reads as follows:

A man who marries the mother of a child not filiated to another
man and 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 that child.

The husband may disavow paternity of the child as provided in
Article 187.

The action for disavowal is subject to a peremptive period of
one hundred eighty days. This peremptive period commences
to run from the day of the marriage or the acknowledgment,
whichever occurs later.

Steven Kelley married Jeannie Kelley on December 10, 2011. Jeannie

was the mother of two young girls at the time of the marriage, neither of

whom was filiated to another man.

On August 21, 2012, Steven acknowledged the older child by

authentic act with the concurrence of Jeannie; and, on August 14, 2014,

Steven acknowledged the younger child with the concurrence of Jeannie.

These acknowledgments created a legal presumption that Steven is the father

of both girls.

In February 2019, Steven and Jeannie separated. On June 20, 2019,

Jeannie filed an amended and supplemental petition for divorce and

requested child support from Steven. On May 16, 2022, Steven filed a

petition to revoke his acknowledgments of both children, which was

1

followed by Jeannie filing exceptions of no cause of action and peremption

on June 8, 2022.

A hearing was held on November 29, 2022, during which the trial

court granted the peremptive exception, styled as a petition to revoke

acknowledgments of paternity of both children, which was essentially a

disavowal action.

I agree with the trial court that, according to La. C.C. art. 195, Steven

Kelley is the legal father of the two children and that he freely accepted

these responsibilities in 2012 and 2014 with the concurrence of his wife, the

mother of the children.

Steven could have disavowed either of the children, as described in

La. C.C. art. 187, within 180 days from the date of the acknowledgment.

The first right to disavow perempted 180 days after August 12, 2012, and the

second right to disavow perempted 180 days after August 14, 2014. Since

neither disavowal occurred, Steven’s right to disavow either child was

extinguished.

According to La. C.C. art. 3458:

Peremption is a period of time fixed by law for the existence of
a right. Unless timely exercised, the right is extinguished upon
expiration of the peremptive period.

The majority fails to recognize that Louisiana law allows for different

kinds of paternity. There may be biological paternity or presumed paternity

or both. In the case before us, Steven Kelley is presumed to be the father of

Jeannie’s two daughters since he did not disavow either child within the time

allowed by Article 195, or by the means allowed by La. C.C. art. 187, which

states as follows:

2

The husband may disavow paternity of the child by clear and
convincing evidence that he is not the father. The testimony of
the husband shall be corroborated by other evidence.

Steven’s right to disavow passed many years ago.

The majority and one of the concurrences rely on the case of

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

decided by the Louisiana Supreme Court in 1995 and deals with forced

heirship in a succession contest. It is not relevant to Article 195, which was

enacted in 2005 and allows for acknowledgment of unfiliated children with

the concurrence of their mother and creates a presumption of paternity that is

perempted if not disavowed within 180 days.

The majority is also incorrect in relying on McKinley v. McKinley, 22-

0132 (La. App. 1 Cir. 9/16/22), 352 So. 3d 1001, and Barras v. O’Rourke,

19-412 (La. App. 3 Cir. 12/18/19), 287 So. 3d 817, which deal with the 2016

revision of La. R.S. 9:406. The case we are deciding was finished by

peremption of the right to disavow in 2014, at the latest.

In the instant case, we can refer to La. C.C. art. 9, which states:

When a law is clear and unambiguous and its application does
not lead to absurd consequences, the law shall be applied as
written and no further interpretation may be made in search of
the intent of the legislature.

Steven Kelley is the legal father of both girls and can be required to

support them as would any father or mother when a divorce occurs.

Accordingly, I would affirm the judgment of the trial court.

3

HUNTER, J., dissenting.

Since their respective inceptions, America and the “Gret Stet” of

Louisiana, along with God, country, and family serving as their moral

compass, established their constitutions with an impregnable respect for

these tenants firmly nestled in or laws, customs, and mores.

While my colleagues are supportive of solely criminal punitive

charges associated with injuring of public records, this is at best, a

penultimate concern.

We are a state where marriage, family, and children are purportedly

sacrosanct. The courts have long since established and evolved the maternal

and best interest of children laws to counteract the prior paternalistic leaning

legislation and jurisprudence. However, to allow a lawfully married and

professed parent to withdraw their sworn obligation to protect and provide

for their children is simply not in the best interest of children. This action, if

sanctioned by this Court, would lead to a proliferation of persons seeking to

invalidate parental obligations simply because of separate and unrelated

relationship strife.

In this particular case, I believe the “penalty” for the “fraudulent”

signature is parentage. This was no fault of the children. The children

sought nothing of the parties involved but support and affection. Nothing

between the parties to this suit should lead to a deleterious effect on the

children. Finally, we are a state where biological and putative fathers can

both be bound for financial obligations based on mere signatures. Until the

legislature addresses the inequitable aspects of these actions, I see no

difference in responsibility here.

1