Lastrapes v. WillisLastrapes v. Willis
- Reporters:
- ,
- Before:
- Doucet, Thibodeaux, Bertrand
Cynthia Guillory, Paul Peter Reggie, Lake Charles, for Rose Marie Willis etc.
Before DOUCET and THIBODEAUX, JJ., and BERTRAND*, J. Pro Tem.
THIBODEAUX, Judge.
This is a disavowal action in which the respondent, Jerome Anthony Lastrapes, is attempting to prove that he is not the biological father of Jerome Anthony Lastrapes, Jr. The issue before us is whether or not the trial court incorrectly ordered blood tests to be administered to the mother, her minor child, and the presumed father to determine the paternity оf the minor child.
FACTS
Jerome Anthony Lastrapes, Jr. was born on November 6, 1979 to Rose Marie Willis. The child was initially named Jerome Anthony Willis but his birth certificate was later officially changed to Jеrome Anthony Lastrapes, Jr. as early as May 17, 1983. Jerome Anthony Lastrapes executed an acknowledgment of paternity on July 28, 1980 before James Spruel, Jr., a Lake Charles аttorney. The Acknowledgment of Paternity is in authentic form and was voluntarily executed.
The State of Louisiana, Department of Social Services, brought an action pursuant to
On April 8, 1993, Lastrapes filed a petition to disavow paternity alleging that he was not the biological father of the minor child and that he had discovered this supposed fact in February, 1993. Another individual, Sam Joubert, informed him that he and Ms. Willis had sexual relations in Marсh, 1979.
The suits entitled “Jerome Anthony Lastrapes v. Rose Marie Willis and Jerome Anthony Lastrapes, Jr.” and “State of Louisiana, ex rel Rose M. Willis v. Jerome Lastrapes” were consolidated for trial in Calcasieu Parish.
An exception of no cause and no right of action was filed by the state and orally denied by the trial court. On October 18, 1993, the trial court ordered Mr. Lastrapes, Ms. Willis, and the minor child to submit to paternity blood testing. The state appeals asserting that the trial court erred in ordering that blood tests be administered to the parties to determine paternity in Mr. Lastrapes‘s disavowal action pursuant to
LAW AND DISCUSSION
It is the announced public policy of this state that innocent children should not be bastardized. This is especially true, we think, when a child has previously been acknowledged by an authentic act whose validity
Wе find these facts to be especially salient to our determination of this matter. Mr. Lastrapes voluntarily signed an acknowledgment of paternity on July 28, 1980. This document was in authentic form. “An authentic act constitutes full proof of the agreement it contains as against the parties, their heirs, and their successors by universal or particular title.”
The birth certificate of the minor child names respondent, Jerome A. Lastrapes, as the father. An income assignment order signed by the Honorable Billy H. Ezell on December 11, 1990 stated in part that: “... the [court] did not find good cause not to issue an order requiring the defendant‘s [Jerome Lastrapes] present and/or future payors of any income....” This certainly implies a recognition of Lastrapes‘s obligation to pay child support to the minor child and, as such, impliedly judicially recognizes him as the father.
Moreover, the record reflects that the mother had a normal term pregnancy and the child was born on November 6, 1979. Ms. Willis had sexual relations with Mr. Lastrapes in January or February, 1979 and apparently with Sam Joubert in March. Assuming these facts to be true, the minor child would have been born in December, not November, 1979, if Mr. Joubert was the father.
Lastrapes‘s lawsuit was filed in April, 1993. At that time, no specific сodal or statutory provision governed the time limitation within which a disavowal action must be brought by a father who was not the husband of the mother. The Civil Code only refers to time limits for disavowal by the husband. See, e.g.,
“... A peremptive statute ... totally destroys the previously existing right with the result that, upon expiration of the prescribed period, a cause of action or substantive right no longer exists to be enforced.” (Citations omitted).
The plea of peremption may be supplied by the court prior to final judgment.
Accordingly, we conclude that respondent did not have a cause of action or a substantive right at the time he filed his lawsuit in April, 1993. His petition, therefore, is dismissed with prejudice.
The respondent argues that a section of the statute recently enacted, 1993 Act No. 32 § 2, preserves his right to bring this action. We disagree. This action was a separately instituted, ordinary action by the respondent. It was not “an action ancillary to any child support proceeding.” See, 1993 Lаws No. 32, § 2. Since it cannot be characterized as such an action, he cannot avail himself of the 180 days from the effective date of this act within which to bring this action. That this lawsuit wаs consolidated with the state‘s action for non-support against Mr. Lastrapes does not make it an ancillary action. According to Black‘s Law Dictionary, 5th edition (1983), an аncillary proceeding is:
“One growing out of or auxiliary to another action or suit, or which is subordinate to or in aid of a primary action, either at law or in equity. In state courts, a procedural undertaking in aid of the principal action...”
His lawsuit is the principal action and not the ancillary action. Thus, the provisions of 1993 Laws No. 32, § 2 are inapplicable.
CONCLUSION
For the forеgoing reasons, the judgment of the trial court ordering Jerome Anthony Lastrapes, Rose Marie Willis, and Jerome Anthony Lastrapes, Jr. to submit to paternity blood testing is hereby set aside аnd vacated. Furthermore, for the reasons assigned, the respondent‘s petition to disavow paternity is dismissed with prejudice.
All costs of these proceedings are assessed against Jerome Anthony Lastrapes.
REVERSED AND RENDERED.
Notes
§ 305. Disavowal of paternity; ancillary to child support proceeding
Notwithstanding the provisions of Civil Code Art. 189 and for the sole purpose of determining the proper payor in child support cases, if the husband, or legal father who is presumed to be the father of the child, erroneously believed, because of misrepresentation, fraud, or deception by the mother, that he was the father of the child, then the time for filing suit for disavowal of paternity shall be suspended during the period of such erroneous belief оr for ten years, whichever ends first.
Act 1993, No. 32, Section 2. The provisions of this Act shall be applied retrospectively such that a husband or legal father who, because of the mоther‘s misrepresentation, fraud, or deception, erroneously believed he was the father of a child, and whose action for disavowal has prescribed, may institute such an action ancillary to any child support proceeding brought within one hundred eighty days of the effective date hereof, and any such suit not instituted within that time and any claims relating thereto shall be forever barred.