Brittany M. Boquet v. Nicole L. Boquet

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-798

BRITTANY M. BOQUET

VERSUS

NICOLE L. BOQUET

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 103106
HONORABLE DAVID BLANCHET, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Van H. Kyzar, and Candyce G. Perret, Judges.

AFFIRMED.

Ann D. Latour
Attorney at Law
405 West Main Street
Lafayette, LA 70501
(337) 235-3878
COUNSEL FOR OTHER APPELLEE:
S. R. B. (minor child)

Jeff Landry
Attorney General
Joseph Scott St. John
Deputy Solicitor General
Chimene St. Amant
Assistant Attorney General
P.O. Box 94005
Baton Rouge, LA 70804-9005
(225) 326-6000
COUNSEL FOR OTHER APPELLEE:
State of Louisiana, Office of the Attorney General

Henry Adams, III
Adams & Associates
905 The Boulevard
Rayne, LA 70578
(337) 334-7000
COUNSEL FOR DEFENDANT/APPELLEE:
Nicole L. Boquet

Bhyllie J. Mouton
Shane M. Mouton
Mouton & Mouton Law Firm, LLC
905 The Boulevard
Rayne, LA 70578
(337) 334-7000
COUNSEL FOR DEFENDANT/APPELLEE:
Nicole L. Boquet

Danielle Thompson
Paul J. deMahy
The Thompson Law Firm
2901 Johnston Street, Suite 301
Lafayette, LA 70503
(337) 534-8761
COUNSEL FOR PLAINTIFF/APPELLANT:
Brittany M. Boquet

SAUNDERS, Judge.

This appeal comes to this court from a judgment granting an exception of

prescription by the trial court where an untimely action to disavow was instituted by

the spouse of a birth mother to a child. In the course of the marriage, a child was

born giving the spouses the legal status of parents to the minor child.

The spouse of the birth mother instituted divorce proceedings. In response,

the birth mother filed an answer and reconventional demand for child support.

Thereafter, the spouse of the birth mother filed a disavowal action more than one

year from the birth of the minor child. The birth mother responded to the disavowal

action by filing an exception of prescription, which the trial court granted.

The spouse of the birth mother files this appeal asserting that the trial court

erroneously applied La.Civ.Code arts. 185 and 189 in this matter. We find no error

by the trial court.

FACTUAL AND PROCEDURAL HISTORY:

Brittany and Nicole Boquet married on December 18, 2015. At the time of

the marriage, Nicole was pregnant. Brittany had full knowledge that Nicole was

pregnant. The child was born on February 5, 2016. Brittany was aware of the

circumstances that brought into question whether she was not the biological parent

of the child. Brittany accepted tax benefits of having a child with Nicole when they

filed a joint tax return for the year 2016.

On March 14, 2017, Brittany filed a petition for divorce and termination of

the matrimonial regime from Nicole. In that petition, Brittany alleged that one child

was born of their marriage. Brittany sought joint custody and access to the child

pursuant to a custody plan.

On April 19, 2017, Nicole filed an answer to Brittany’s petition for divorce

and a reconventional demand seeking child support from Brittany. On April 28,

2017, Brittany filed a petition for declaratory judgment and disavowal of the minor

child. Nicole responded by filing various pleadings and exceptions, of which is

relevant, an exception of prescription. The trial court granted Nicole’s exception of

prescription. Brittany appeals, alleging eight assignments of error.

ASSIGNMENTS OF ERROR:

1. The Trial Court erred by ruling that Civil Code Articles 185 and
189 violated the U.S. and Louisiana Constitutions without a party
specifically challenging their constitutionality in a pleading and
without the Attorney General being notified.

2. The Trial Court erred in deciding this controversy based on the
spousal relationship between Brittany Boquet and Nicole Boquet
rather than on the absence of a parent-child relationship between
Brittany Bouquet and [S.R.B.].

3. The Trial Court erred by retroactively applying Pavan v. Smith, 137 S. Ct. 2075, 198 L. Ed.2d 636 (2017).

4. The Trial Court erred when it declared that Civil Code Article
185 violated the Equal Protection Clause of the 14th Amendment
of the U.S. Constitution and Article 1, Section 3 of the Louisiana
Constitution.

5. The Trial Court erred in usurping the Legislature’s authority by
redrafting the Civil Code Article 185 in such a way that it
violated Brittany Boquet’s rights of Equal Protection guaranteed
by the 14th Amendment to the U.S. Constitution and Article 1,
Section 3 of the Louisiana Constitution.

6. The Trial Court erred in retroactively applying its decision that
Civil Code Article 185 violates the Equal Protection clauses of
the 14th Amendment to the U.S. Constitution and Article 1,
Section 3 of the Louisiana Constitution.

7. The Trial Court erred by usurping the authority of the Legislature
and violating Civil Code Article 3457 by redrafting Civil Code
Article 189 to apply to the disavowal of maternity by the wife of
a birth mother.

8. The Trial Court erred in applying its redrafted Civil Code Article
189 retroactively, in violation of the Due Process Clauses of the
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14th Amendment of the U.S. Constitution and Article 1, Section
3 of the Louisiana Constitution.

ASSIGNMENTS OF ERROR NUMBERS FOUR, FIVE, SIX, SEVEN, AND

EIGHT:

Constitutional Issues

Nicole raises constitutional issues in assignments of error numbers four, five,

six, seven, and eight. We decline to address these assignments of error as they are

not properly before us.

In Johnson v. Welsh, 334 So.2d 395, 396 (La.1976), the Louisiana Supreme

Court stated, “[i]t is well settled that all laws are presumed to be constitutional until

the contrary is made to appear, and that as a general rule a litigant cannot raise the

unconstitutionality of a statute unless its unconstitutionality is specially pleaded and

the grounds particularized.” Here, neither party challenged the constitutionality of

La.Civ.Code arts. 185 and 189. Accordingly, the constitutionality of La.Civ.Code

arts. 185 and 189 is not in the proper posture for this court’s review.

ASSIGNMENTS OF ERROR NUMBERS ONE, TWO, AND THREE:

In the first alleged error, Brittany asserts that the trial court erred by ruling

that La.Civ.Code arts. 185 and 189 violated the U.S. and Louisiana Constitutions

without a party specifically challenging their constitutionality in a pleading and

without the Attorney General being notified. We agree that the trial court’s reasons

for judgment iterated that it was basing its judgment on its finding that La.Civ.Code

arts. 185 and 189 were not constitutional. This is not proper.

However, Brittany correctly protesting that the trial court’s reasons for

judgment are improperly based on constitutional grounds does not render the actual

judgment of the trial court erroneous.

It is well settled that the trial court’s “oral or written reasons for
judgment form no part of the judgment, and that appellate courts review
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judgments, not reasons for judgment.” Bellard v. Am. Cent. Ins. Co.,
07-1335, p. 25 (La. 4/18/08), 980 So.2d 654, 671; La.Code Civ.P. art.
1918. “The written reasons for judgment are merely an explication of
the Trial Court’s determinations. They do not alter, amend, or affect the
final judgment being appealed. . . .” State in the Interest of Mason, 356
So.2d 530 (La.App. 1 Cir. 1977).

GBB Props. Two, LLC v. Stirling Props., LLC, 17-384, pp. 3-4, (La.App. 3 Cir.

7/5/17), 224 So.3d 1001, 1004.

The judgment of the trial court states, “IT IS FURTHER ORDERED that

this court grants Nicole L. Boquet’s Peremptory Exception of Prescription and

assesses costs for the Exception to Brittany M. Boquet.” Therefore, we will review

whether the grant of Nicole’s exception was proper.

The standard of review of a grant of an exception of prescription is
determined by whether evidence was adduced at the hearing of the
exception. If evidence was adduced, the standard of review is manifest
error; if no evidence was adduced, the judgment is reviewed simply to
determine whether the trial court’s decision was legally correct. Allain
v. Tripple B Holding, LLC, 13-673 (La.App. 3 Cir. 12/11/13), 128 So.3d
1278. The party pleading the exception of prescription bears the burden
of proof unless it is apparent on the face of the pleadings that the claim
is prescribed, in which case the plaintiff must prove that it is not. Id.

Arton v. Tedesco, 14-1281, p. 3 (La.App. 3 Cir. 4/29/15), 176 So.3d 1125, 1128, writ

denied, 15-1065 (La. 9/11/15), 176 So.3d 1043. Here, evidence was introduced at

the hearing. Accordingly, we will review this matter using the manifest error

standard of review.

Proper Application of La.Civ.Code arts. 185 and 189

In assignment of error number two, Nicole argues that the trial court erred in

deciding this controversy based on the spousal relationship between she and Brittany

Boquet rather than on the absence of a parent-child relationship between Brittany

Bouquet and S.R.B. In the third assignment of error, Nicole contends that the trial

court erred by retroactively applying Pavan v. Smith, 137 S.Ct. 2075 (2017). We

find no merit to these contentions.

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United States Constitution Article VI states, “[t]his Constitution . . . shall be

the supreme law of the land; and the judges in every state shall be bound thereby,

anything in the Constitution or laws of any State to the contrary notwithstanding.”

Based on “the supreme law of the land,” i.e., the United States Constitution, the

United States Supreme Court, in Obergefell v. Hodges, 135 S.Ct. 2584, 2601 (2015),

stated:

The States have contributed to the fundamental character of the
marriage right by placing that institution at the center of so many facets
of the legal and social order.

There is no difference between same- and opposite-sex couples
with respect to this principle. Yet by virtue of their exclusion from that
institution, same-sex couples are denied the constellation of benefits
that the States have linked to marriage.

The concept of equal treatment for marriage between a man and woman and

marriage between spouses of the same sex was reiterated by the United States

Supreme Court in Pavan, 137 S.Ct. 2075. In Pavin, an Arkansas Statute, as written,

allowed for a female spouse of a birth mother to be excluded from a child’s birth

certificate. The Supreme Court ordered that the statute be applied constitutionally

by extending the same “constellation of benefits” to female spouses of birth mothers

as were given to male spouses of birth mothers.

Here, La.Civ.Code art. 185 (emphasis added) states, “[t]he husband of the

mother is presumed to be the father of a child born during the marriage or within

three hundred days from the date of the termination of the marriage.” Additionally,

La.Civ.Code art. 189 (emphasis added) states, in pertinent part, the following:

The action for disavowal of paternity is subject to a liberative
prescription of one year. This prescription commences to run from the
day of the birth of the child, or the day the husband knew or should
have known that he may not be the biological father of the child,
whichever occurs later.

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Thus, under an interpretation of La.Civ.Code arts. 185 and 189 in the

environment existing prior to Obergefell v. Hodges, the female spouse of a birth

mother would not enjoy the same “constellation of benefits” as those of a male

spouse of a birth mother. However, the United States Supreme Court has made it

clear that this old framework is not the status of the laws of this land. 1 Thus, to

interpret La.Civ.Code arts. 185 and 189 as Brittany suggests is not proper under an

established interpretation of “the supreme law of the land” as made by our United

States Supreme Court in Obergefell and reiterated in Pavan. As such, using the

reasoning of Pavan, we find that we must apply La.Civ.Code arts. 185 and 189 in

such a manner that Brittany, the female spouse of a birth mother, has the same

“constellation of benefits” and obligations as those of a male spouse of a birth mother.

In the case before us, on March 14, 2017, Brittany filed a petition for divorce

from Nicole. The petition alleged they were married on December 18, 2015.

Brittany knew that Nicole was pregnant when they married. A child was born of the

marriage on February 5, 2016. Therefore, under La.Civ.Code art. 185, Brittany is

presumed to be a parent of the child. Further, under La.Civ.Code art. 189, the one

year liberative prescription of any disavowal action began to run on February 5, 2016,

the date of the child’s birth and also when Brittany knew or should have known that

1
We note that while not procedurally proper to consider the constitutionality of
La.Civ.Code arts. 185 and 189, under Louisiana Federation of Teachers v. State, 13-120, 13-232,
13-350, pp. 22, (La. 5/7/13), 118 So.3d 1033, 1048 (citations omitted), the Louisiana Supreme
Court laid out these principles:

[B]ecause it is presumed that the legislature acts within its constitutional authority
in promulgating a legislative instrument, this court must construe a legislative
instrument so as to preserve its constitutionality when it is reasonable to do so. In
other words, if a legislative instrument is susceptible to two constructions, one of
which would render it unconstitutional or raise grave constitutional questions, the
court will adopt the interpretation of the legislative instrument which, without doing
violence to its language, will maintain its constitutionality.

In choosing to align La.Civ.Code arts. 185 and 189 with the current environment as laid
out by Obergefell and Pavan, this court is adhering to these principles.
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she might not be a biological parent of the child. Thus, Brittany had until February

5, 2017 to file an action for disavowal. Brittany’s petition for disavowal was filed

on April 28, 2017. Therefore, Brittany’s petition for disavowal was prescribed on

its face, and she has the burden of proving why her petition to disavowal was not

prescribed. We find no evidence that Brittany has carried this burden. Accordingly,

we find that the trial court’s judgment granting Nicole’s exception of prescription

was legally correct.

CONCLUSION:

Brittany Boquet files eight assignments of error. We decline to address any

assignments that question the constitutionality of any laws, as any such issues are

not in the procedurally proper posture. We further find that Brittany’s remaining

assignments, which question whether La.Civ.Code arts. 185 and 189 can be applied

in this case and whether Nicole Boquet’s exception of prescription was improperly

granted by the trial court, are without merit. All costs of these proceedings are

assessed to Brittany Boquet.

AFFIRMED.

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