J.P. v. C.E.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-20

J.P.

VERSUS

C.E.

**********

APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 09-C-5092-D
HONORABLE A. FRANK MCGEE, DISTRICT JUDGE PRO TEMPORE

**********

JIMMIE C. PETERS
JUDGE

**********

Court composed of Oswald A. Decuir, Jimmie C. Peters, and J. David Painter,
Judges.

REVERSED AND REMANDED.

J.P.
830 Belle Drive
Breaux Bridge, LA 70517
(337)315-9503
PLAINTIFF/APPELLANT
In Proper Person

Kenneth R. Martinez
State Of Louisiana
Department of Children and Family Services
116 S.W. Railroad Ave., Suite B
Ville Platte, LA 70586
(337)363-6693
COUNSEL FOR DEFENDANT/APPELLEE
State of Louisiana
Department of Social Services

Bridgette A. Soileau Gaudin
Attorney at Law
100 W. Bellevue Street
Opelousas, LA 70507
(337)948-3818
COUNSEL FOR DEFENDANT/APPELLEE
Curator for N.P.

PETERS, J.

J.P. initially brought this action seeking paternity testing and named C.E.,

the biological mother of the child in question, as the sole defendant. The State of

Louisiana, Department of Social Services, Support Enforcement Services (the

state), intervened in the suit. J.P. now appeals from a trial court judgment

sustaining a peremptory exception of prescription in favor of the state. For the

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

the trial court for further proceedings.

DISCUSSION OF THE RECORD

The minor child at issue in this litigation, N.P., 1 was born in Lafayette,

Louisiana, on November 8, 1999. His birthmother was C.E., and soon after N.P.’s

birth, J.P. executed an affidavit certifying that he was N.P.’s biological father.

N.P.’s Certificate of Live Birth lists J.P. as the biological father.

On September 22, 2009, J.P. filed a Petition for Paternity Testing, naming

C.E. as defendant. In the petition, J.P. alleged the following concerning his right to

paternity testing:

3.

Plaintiff shows that in accordance with La[.] C.C. art 198 that
the Defendant, [C.E.] did in bad faith deceive the Plaintiff into
believing that he was the biological farther [sic] of her child, [N.P.]

4.

Further, after learning that the Defendant practices black magic,
spells and curses, the Plaintiff discovered that the Defendant was
working black magic in their relationship through her religious
practice of witchcraft.

1
The initials of the child and her parents are used to protect the identity of the minor
child. Uniform Rules—Courts of Appeal, Rules 5-1, 5-2.

5.

The Plaintiff shows that he was warned by other men that the
Defendant would produce an authentic looking document that claimed
she was to inherit the sum of $5 million dollars. She would use this
document to entice men into a long term relationship.

6.

The Plaintiff shows that as a result of years of deceitful
practices in the form of witchcraft by the Defendant that he has
suffered damages in the form of paying child support, financial
distress and ridicule by his peers for being suckered into believing that
[N.P.] was the Plaintiff’s biological son.

Based on these allegations, J.P. requested that C.E. be ordered to submit N.P. for

paternity testing in order to determine whether he was N.P.’s biological father.

The state, rather than C.E., responded to the petition by filing an intervention

naming both J.P. and C.E. as defendants in intervention. In its intervention, the

state asserted that it was a necessary and indispensible party to this action as it had

obtained a prior judgment of child support in favor of N.P. and against J.P.,

effective September 15, 2001. The trial court granted the state’s right to intervene

by an order dated October 30, 2009. On the same day it filed the intervention, the

state answered J.P.’s petition.

After a number of other pleadings were filed addressing discovery issues and

service issues on C.E., J.P. amended his petition by a pleading filed December 21,

2010. Among other changes, the amendment replaced the original Paragraphs 3

through 6 with the following:

3.

Defendant, [C.E.], and petitioner, [J.P.], are not married and
have never been married.

4.

This court has jurisdiction over the status in question based on
La. Code Civ. Proc. art. 10(A)(8). This court may exercise personal
2

jurisdiction over the defendant, [C.E.], pursuant to La. R.S.
13:3201(A)(7).

5.

Service of process of the original Petition for Paternity Testing
was made on the non-resident defendant by as required by La. R.S.
13:3204(A), as evidence [sic] by the documents attached hereto as
Exhibit A, in globo.

Alternatively, if the court finds that service of process cannot be
made on the non-resident defendant by registered or certified mail or
by actual delivery, then petitioner requests that the court appoint an
attorney at law to represent the defendant pursuant to La. Code Civ.
Proc. art. 5091 and that service of process be made on the attorney so
appointed.

6.

Pursuant to La. Code of Civ. Proc. art. 5091.1, petitioner
requests that the court appoint an attorney to represent the child whose
status is at issue.

The deletion and replacement of the original paragraphs had the effect of

eliminating the original reasons for J.P.’s request for paternity testing.

On January 6, 2010, J.P. filed a Motion for Hearing to Close Case. J.P.

alleged in his motion that C.E. was served with notice of his petition by the St.

Landry Clerk of Court’s reissue of its long arm service via the United State Postal

Service (USPS). The petition was mailed to C.E.’s address in Houston, Texas.

The USPS’s track and confirm showed that the document was unclaimed in

Houston on July 12, 2010, but that it was delivered on July 17, 2010, in Breaux

Bridge, Louisiana. However, after a hearing on the motion, the trial court denied

J.P.’s request to close the paternity case.

After more proceedings directed toward service on C.E., on May 2, 2011,

the state filed exceptions of non-joinder of a necessary and indispensible party,

prescription, no cause of action, prematurity, vagueness, and lack of service of

process on C.E. J.P. responded to this filing by again amending his petition. This
3

amendment, which was filed on May 27, 2011, again replaced previous paragraphs,

including Paragraphs 6 and 7 which relate directly to the issue of knowledge.

These paragraphs now read as follows:

6.

Pursuant to La. Code of Civ. Proc. art 2004, a fraudulent
judgment, the petitioner request [sic] that DNA testing be
administered in this matter in order to further substantiate fraudulent
allegations that [C.E.] knowingly and fraudulently deceived [J.P.] into
signing the acknowledgement and birth certificate of her minor child
by having [J.P.] believe that he was the father.

7.

Plaintiff has interviewed ex co-workers and personal associates
of [C.E.] on or about September 2009 who made [J.P.] aware that the
minor child was not his child and that [C.E.] did not know who was
the father of her child due to the numerous sexual relationships that
she had at the time of conception of the minor child in question.

The state’s exceptions were tried on October 31, 2011. At the end of that

hearing, the trial court granted judgment maintaining the state’s peremptory

exception of prescription. The judgment ultimately executed by the trial court on

November 14, 2011, constituted a form judgment apparently used by the state in

support cases, which gave the trial court a number of paragraphs to choose from

and complete. In this case, the trial court marked a box under the title “OTHER:”

and inserted the following language:

Exceptions dismissing petition is granted on the exception of
prescription and petitioner failed to establish a substantial likelihood
[of non-parentage] due to duress, fraud, or otherwise pursuant to R.S.
9:406.

J.P. appeals from this judgment, raising three assignments of error:

1. Whether the court can allow the state’s attorney and intervener
[sic] seemingly represents the defendant-appellee in litigation,
proceed to litigate the case with the defendant-appellee absent
from the hearing by having the case dismissed on exceptions
and[;]

4

2. Whether the trial court erred by not acknowledging the 2nd
Amended Petition for Paternity Testing And Annulment Of
Acknowledgment which cured deficiencies raised by the
intervener’s [sic] exceptions and[;]

3. Whether the trial court erred in holding a default confirmation
pleading for over 45 days without ruling on the matter at the
hearing because the judge kept the pleading on his desk[.]

OPINION

Assignment of Error Number One

In his first assignment of error, J.P. argues that the trial court erred in

allowing the state, as an intervenor, to litigate this matter in lieu of the absent C.E.

Specifically, he asserts that the state should not have been allowed to raise

exceptions in his proceedings against C.E. We find no merit in this argument.

Louisiana Revised Statutes 9:406(B) provides that the “office of children

and family services, support enforcement services of the Department of Children

and Family Services” is a necessary party to an action for the revocation of an

authentic act of acknowledgment. In this instance, the state had obtained a prior

child support order against J.P. in another proceeding and, thus, is a necessary

party to this present matter. Further, as the state’s involvement in this matter is a

demand incidental to the principal demand, it is entitled to plead any exception

available to the defendant in the principal action. La.Code Civ.P. art. 1034.

Accordingly, we find no error by the trial court in this instance.

Assignment of Error Number Two

In this assignment of error, J.P. asserts that the trial court erred in not

acknowledging his second amending petition which, he asserts, cured all of the

issues raised by the state’s exceptions. We construe this argument to suggest that

the trial court erred in granting the exception of prescription and dismissing his suit.

5

Louisiana Revised Statutes 9:405 provides, “In child support, custody, and

visitation cases, the acknowledgement of paternity by authentic act is deemed to be

a legal finding of paternity and is sufficient to establish an obligation to support the

child and to establish visitation without the necessity of obtaining a judgment of

paternity.” A person who acknowledges paternity of a child by authentic act may

revoke that acknowledgement for any reason if the revocation takes place within

sixty days of the acknowledgement. La.R.S. 9:406(A). Otherwise, a revocation

may only be obtained upon petitioning the trial court pursuant to La.R.S. 9:406(B).

That statute currently provides, in part:

(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 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.

(2) 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 acknowledgment and other necessary parties including the
office of children and family services, support enforcement services of
the Department of Children and Family Services. 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 mover from
presenting any other evidence as a substitute for the genetic tests if it
is not possible to conduct such tests.

However, La.R.S. 9:406 was amended by Acts 2008, No. 533§ 1, effective

August 15, 2008. Prior to that amendment, La.R.S. 9:406(B), which was added by

Acts 2006, No. 344 § 4, effective June 13, 2006, provided:

At any time, a person who executed an authentic act of
acknowledgment may petition the court to rescind such
6

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.

Thus, between June 13, 2006 and August 15, 2008, a person seeking to

revoke an acknowledgment of paternity, created by authentic act, could do so at

any time. In State ex. rel. AC v. MD, 10-1799 (La.App. 1 Cir. 6/17/11), 70 So.3d

159, the first circuit held that the provisions of La.R.S. 9:406(B), as amended in

2008, could only have prospective application. We agree with that holding. Thus,

the provisions of La.R.S. 9:406(B), providing a two-year prescriptive period for the

commencement of an action to revoke an authentic act of acknowledgment only

applies prospectively from August 15, 2008.

In this instance, J.P. filed his original petition requesting paternity testing on

September 22, 2009. Although he did not formally request revocation of his prior

acknowledgment of N.P. in his petition, the effect of his petition is the same. It

was not until he amended his petition for the second time on May 27, 2011, that J.P.

first requested that the prior acknowledgment be nullified. However, La.Code

Civ.P. art. 1153 provides that “[w]hen the action or defense asserted in the

amended petition or answer arises out of the conduct, transaction, or occurrence set

forth or attempted to be set forth in the original pleadings, the amendment relates

back to the date of filing the original pleading.” Furthermore, “[e]very pleading

shall be so construed as to do substantial justice.” La.Code Civ.P. art. 865.

Because J.P.’s May 27, 2011 petition relates back to September 22, 2009, we find

that J.P.’s request to annul his prior authentic act of acknowledgment was timely

filed within the two years of the amendment of La.R.S. 9:406(B). Accordingly, we

find that the trial court incorrectly sustained the state’s peremptory exception of

prescription.

7

We also find that the trial court erred in its finding that J.P. had failed to

“establish a substantial likelihood [of non-parentage] due to duress, fraud, or

otherwise pursuant to R.S. 9:406.” The various exceptions filed by the state were

the only issues before the trial court on October 31, 2011.

Assignment of Error Number Three

In his last assignment of error, J.P. argues that the trial court erred by not

taking up his default confirmation during the hearing on the exceptions. For the

same reason that the trial court erred in making factual findings concerning J.P.’s

ability to be successful at trial, we find that the trial court did not err in not

proceeding with the default confirmation. The only issue before the trial court at

this hearing was the state’s exceptions. We find no merit in this assignment of

error.

DISPOSITION

For the foregoing reasons, we reverse the trial court judgment rendered in

favor of the State of Louisiana, Department of Social Services, Support

Enforcement Services, and against J.P. dismissing his suit. We remand the matter

to the trial court for further proceedings. We assess the costs of this appeal equally

between J.P. and the State of Louisiana, Department of Social Services, Support

Enforcement Services, with the amount to the state in the amount of $892.25, as

required by La.R.S. 13:5112.

REVERSED AND REMANDED.

8