State v. WigginsState v. Wiggins
Under the authority of
On appeal, the defendant argues essentially that the evidence was insufficient to support a finding that he was the father of the child. Defendant argues that, other than the results of blood tests conducted on the mother, the child, and the defendant which established that defendant could be the father of the child, the only evidence which supports the decision of the trial court is the assertion of the mother that defendant is the father of her child. Defendant contends that under
Pertinent to this suit are
Although one decision of this court has characterized the 1980 legislation as substantive and as having no retroactive effect, State v. Watson, 403 So.2d 1249 (La. App. 2d Cir. 1981), it would seem that those provisions of the 1980 legislation relating to evidentiary matters are remedial or procedural in nature and should be applied even where the operative facts occurred and suit was filed prior to the effective date of the legislation. See Page v. American Motorist Ins. Co., Ltd., 381 So.2d 889 (La.App. 2d Cir. 1980).
It is not, however, necessary to resolve this issue in order to decide this case. Under the law as it existed both before and after the 1980 legislation, it was and is necessary for the party seeking to establish filiation to prove such by a preponderance of the evidence. Succession of Washington, 308 So.2d 892 (La.App. 2d Cir. 1975). In this case, the state has not done so.
As noted above, the results of the blood tests indicated that defendant could be the father of the child. The mother testified that she was dating the defendant from 1971 to 1973. Carolyn Parker was born on January 4, 1973. A sister of the mother corroborated the mother‘s testimony in this regard. Throughout this period of time the mother, then 16 years old, was living at home with her parents. The mother also testified that, although she had other male friends during the time she was seeing the defendant, she was not having sexual relations with anyone but the defendant. The sister confirmed that the mother had other male friends during the time she was seeing the defendant but could not confirm that the mother was not having sexual relations with anyone else.
The state attempted to establish that the defendant had acknowledged the child as his. The acts of the defendant which were alleged by the state to constitute acknowledgment were that defendant had given the mother $15 and a box of Pampers shortly after the child was born. Upon questioning by the court, the mother testified that defendant had verbally acknowledged the child as his on one occasion. Neither of these assertions were corroborated. Defendant denied giving the mother $15 and the box of Pampers and asserted he had never acknowledged the child as his own verbally or otherwise. The defendant also introduced evidence that the mother was seeing other men around the time the child was conceived.
This claim of paternity was not asserted for more than seven years after the birth of the child. The mother has since lived with at least two other men and has had another illegitimate child. The defendant has since married and has two children. The defendant never acknowledged the child as his own, formally or informally. There was no relationship between the mother or child and the defendant after the child‘s birth. There is some evidence that the mother was visited by or dated other men about the time the child was conceived. The facts that defendant dated the mother and had sexual relations with her in the general time period when she became pregnant and that, biologically, he could be the father of the child, are not sufficient to establish paternity by a preponderance of the evidence. The decision of the trial court is manifestly erroneous or clearly wrong. Therefore, we reverse the judgment of the trial court declaring the defendant to be the father of Carolyn Parker and ordering him to pay $65 per month in child support.
For the reasons assigned, the judgment of the trial court is reversed and judgment is rendered dismissing plaintiff‘s suit. Plaintiff, the State of Louisiana, is cast with such costs of these proceedings as are allowed by law.
Reversed and rendered.