310 So. 2d 851 | La. | 1975
In re: John Lee Dugas applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Martin. 307 So.2d 650.
Writ denied. On the facts found by the Court of Appeal, there is no error of law in the judgment complained of.
BARHAM, J., is of opinion writ should be granted. There is a “presumption of paternity as an incident to the marriage .”. A presumption is by its very definition not an absolute and it is rebut-table. C.C. art. 188 provides “But in case of voluntary separation, cohabitation is always presumed, unless the contrary he proved.” The “contrary” was conclusively proved here. Also it was conclusively proved that the child is the biological child of Henson who is now the husband of the mother of the child. The child is the legitimated child of Henson. It is not the child of plaintiff, Dugas. See dissent in Tannehill v. Tannehill, 261 La. 933, 261 So.2d 619 (1972) & opinion in Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972). See also the French authorities cited in those cases also Louisiana doctrine.