COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

Judgment rendered September 20, 2006.Application for rehearing may be filedwithin the delay allowed by art. 2166,
La. C.C.P.
No. 41,288-CACOURT OF APPEALSECOND CIRCUITSTATE OF
LOUISIANA
* * * * *DAVID LEWIS STATEN, JR. Plaintiff-AppellantversusBRUCE EDWARD BROWN Defendant-Appellee* * * * *Appealed from theFourth Judicial District Court for theParish of
Ouachita, Louisiana
Trial Court No. 05-1839Honorable
Hamilton Stephens Winters, Judge
* * * * *FEWELL-KITCHENS Counsel forBy: Richard L. Fewell, Jr. AppellantPAUL HENRY KIDD, JR. Counsel forAppellee* * * * *Before CARAWAY, DREW and MOORE, JJ.DREW, J.:DLS sought to establish his paternity of two children born to YFBduring her marriage to BEB. DLS appealed a judgment which found thathis paternity claim as to the older child was barred by prescription orperemption, and that La. C.C. art. 191 (since replaced by La. C.C. art. 198)did not offend due process and was constitutional. On appeal, DLScontends the trial court erred in ruling that his action to establish hispaternity of the older child had prescribed and that former C.C. art. 191 wasconstitutional. For the following reasons, the judgment of the trial court isaffirmed.BACKGROUNDIn his petition to establish his paternity, DLS alleged:• SWB and TEB were born during the marriage of YFB and BEB.• The mother died of an aneurysm on December 4, 2004.• 2005 DNA testing concluded the probability of DLS’s paternity of thetwo children was well over 99%.• A maternal aunt had physical custody of the children.• Under
La. R.S. 9:296, DLS sought additional DNA testing of BEB.
• DLS requested that once paternity was established, the court granthim custody of the children.Relying on C.C. art. 191, BEB responded to DLS’s action with anexception of prescription and/or peremption as to DLS’s claim concerningthe older child. By joint motion, the parties supplemented the appellaterecord with the deposition of DLS taken July 8, 2005, and filed at the trialcourt hearing on December 12, 2005.2In the deposition, DLS stated he first met the mother in 2000 whileshe was living with her husband, BEB. DLS and the mother began theirsexual relationship in December 2000 after which he saw her everyweekend. DLS acknowledged that when YFB became pregnant and duringher first pregnancy, she lived with her husband. After the first baby wasborn, she and DLS lived at her friend’s home. He stated he also saw thechildren after their births at her grandmother’s house where the mother’saunt also lived. DLS said that while the mother was separated from BEB,DLS and the mother “stayed together” at the Town and Country off JenniferLane at the home of the mother’s best friend from fall 2002 until aboutsummer 2004.The mother told him she was pregnant in July 2002 which heremembered because they had just returned from the Essence Festival in
New Orleans. DLS was positive the older child was his because the mother
told him she and her husband were not having sexual relations. She wascontinuing to live with her husband at the time the first child was born.DLS stated he visited the hospital and saw the baby the day after he wasborn.DLS described the mother as kind of angry about the secondpregnancy. Although the deposition twice showed DLS nodded his headaffirmatively when asked if the mother was living with her husband duringthe second pregnancy, DLS contradicted himself by stating she never livedwith her husband following the birth of the older child. Although DLS andthe mother stopped living together in July 2004 when finances became a3problem, DLS stated they continued their sexual relationship after themother moved to her grandmother’s home.DLS explained that he did not pursue his claim of fatherhood earlierbecause he did not want to jeopardize the children’s benefits. After themother died, DLS stated that the husband let the children stay with amaternal aunt two or three days a week until BEB was off work. DLS sawthe children when they were with the aunt. In DLS’s opinion, BEB thoughthimself to be the older child’s father but suspected he might not be thefather of his wife’s second child. DLS said he would not exclude BEB fromthe lives of the children and would not have a problem with a set weekendvisitation. He acknowledged that if the second set of DNA tests showed thechildren had different fathers, DLS would cease his efforts because hewould not separate the children. DLS said the children’s Social Securitybenefit was $1200 a month.TIMELINEEarlier Date YFB and BEB married.December 2000 DLS and YFB begin sexual relationship.December 19, 2002 SWB born.June 25, 2004 Effective date of Act 530 of 2004
Louisiana
Legislature enacting La. C. C. art 191 which statedin §3 that the provisions of the act “shall beapplied both prospectively and retroactively andshall be applied to all pending and existingclaims.”Former
La. C.C. art. 191 stated:
A. A man may establish his paternity of a childpresumed to be the child of another man even though thepresumption has not been rebutted.4B. This action shall be instituted within two years fromthe date of the birth of the child, except as may otherwise beprovided by law. Nonetheless, if the mother in bad faithdeceives the father of the child regarding his paternity, theaction shall be instituted within one year from the date thefather knew or should have known of his paternity, but no morethan ten years from the date of birth of the child.August 31, 2004 TEB born.December 4, 2004 YFB died.April 20, 2005 DLS filed paternity action.June 29, 2005 Effective date of La. C.C. art. 198, which states:A man may institute an action to establish his paternity of achild at any time except as provided in this Article. The action isstrictly personal.If the child is presumed to be the child of another man, theaction shall be instituted within one year from the day of the birth ofthe child. Nevertheless, if the mother in bad faith deceived the fatherof the child regarding his paternity, the action shall be institutedwithin one year from the day the father knew or should have knownof his paternity, or within ten years from the day of the birth of thechild, whichever first occurs.In all cases, the action shall be instituted no later than one yearfrom the day of the death of the child.The time periods in this Article are peremptive.In T.D. v. M.M.M., 98-0167 (
La. 3/2/99), 730 So. 2d 873, a man
asserted his paternity of a child legally presumed to be the child of thehusband of the child’s mother. The supreme court discussed the law ofestablishing paternity prior to the enactment of Civil Code articles settingtime limitations on avowal actions. Seeking recognition of his paternity,joint custody and visitation, the biological father intervened in December1994 in a custody dispute between the mother and her husband during theirdivorce proceedings. The child was conceived during an adulterous affair5in March 1988 which continued after the birth of the child. The biologicalfather visited with the mother and child and suspected he was the father.The mother curbed her paramour’s visitation during her separation from herhusband. Paternity testing done in April 1993 showed in June 1993 a 99.5%probability that the paramour was the father. In November 1993 the motherended the affair and thereafter denied the biological father access to thechild.The appellate court dismissed the biological father’s interventionbased upon the common law concept of laches, the purpose of which is toprevent an injustice resulting from seeking to enforce long neglected rightsdifficult to enforce as a result of the delay. The supreme court reversed,noting that common law concept of laches is used in
Louisiana only in rare
and extraordinary circumstances. There was no prescriptive statuteapplicable to the father’s effort to avow his biological child. First, the courtfound that no prejudice occurred as a result of the delay in bringing theaction, since the father would have contact with the child only if the courtfound that was in the child’s best interest. Moreover, the father’s delay inbringing the action resulted at least in part from the actions of the motherwho attempted to thwart visitation only after the affair finally ended. Therare and extraordinary circumstances required to apply laches were notpresent. The matter was remanded for a determination of the best interestsof the child.In a concurrence, Justice Knoll pointed out that a biological father’ssubstantive rights to conceive and rear a child are not violated by6application of a “best interest of the child” determination. The justiceopined that the fact that a biological father is thwarted from exercisingparental rights while the mother is married to another man is notconstitutionally offensive because the balance of competing interests tips infavor of preserving the family unit.In
Louisiana, dual paternity is legally permissible, giving the child the
benefits of filiation to both fathers. Dual paternity allows a child to seeksupport from the biological father notwithstanding that the child wasconceived or born during the mother’s marriage to another man, and istherefore presumed to be the legitimate child of the marriage. A legitimatefather’s status is not affected by an action to establish biological paternity,and a biological father does not escape his support obligations merelybecause a legal father may share the responsibility. State ex rel. Dept. ofSocial Services v. Howard, 2003-2865 (
La. App. 1st Cir. 12/30/04), 898 So.
2d 443.In a recent case in which an alleged biological father sought to avowpaternity of a child born during the mother’s marriage to another man, thethird circuit found that applying La. C.C. art. 191 to bar the biologicalfather’s avowal action was an unconstitutional abridgement of his right todue process. W.R.M. v. H.C.V. and M.J.V., 05-425 (
La. App. 3d Cir.
3/1/06), 923 So. 2d 911. On June 23, 2006, the supreme court granted writsin the companion case at 05-608 (La. App. 3d Cir. 3/1/06), 923 So. 2d 916,which reversed and remanded for the reasons stated in 923 So. 2d 911. See7W.R.M. v. H.C.V. and M.J.V. 2006-0702 (
La. 6/23/06), 931 So. 2d 1090,
which is pending before that court.The relationship between W.R.M. and the mother began in 1992 andthe child was born on September 1, 1994. The mother terminated therelationship in November 2004. In the interim, she divorced her husband inOctober 1996 and W.R.M. filed a petition to establish filiation on July 7,2003.
La. C.C. art. 191 became effective on June 25, 2004, and required
that an avowal action be instituted within two years from the birth of thechild, unless the mother deceived the father about his paternity. The thirdcircuit found that at the time W.R.M. filed his avowal action in 2003 he hada vested right to sue to establish his paternity. The court concluded that aretroactive application of art. 191 would be an unconstitutional abridgementof W.R.M.’s right to due process. W.R.M. v. H.C.V. and M.J.V., supra. Aspreviously noted, the matter is pending before the supreme court.Statutes are generally presumed constitutional, and the burden ofproving unconstitutionality is on the challenging party. The legislature canset limits on enforcement of vested rights, provided that the legislatureprovides a reasonable time in which to enforce the vested right. Too short atime period is a denial of justice and “due process.” W.R.M. v. H.C.V. andM.J.V., supra.The
Louisiana legislature made the time limits in art. 191 and the
current art. 198 peremptive. The legislature clearly provided that La. C.C.art. 198 is peremptive. The term peremption was not specifically used inart. 191. However, Act 530 of the 2004
Louisiana Legislature, which
8enacted both art. 191 and R.S. 9:395.1, stated in 9:395.1 that the two-yearperiod in art. 191 was peremptive. The time limitation of peremption is notsubject to interruption or suspension. Peremption totally destroys thepreviously-existing right with the result that, upon expiration of theprescribed period, a cause of action or substantive right no longer exists tobe enforced. Bunge Corp. v. GATX Corp., 557 So. 2d 1376 (
La. 1990).
As noted in pertinent part in Revision Comment (e) to Article 198:Requiring that the biological father institute the avowal actionquickly is intended to protect the child from the upheaval ofsuch litigation and its consequences in circumstances where thechild may actually live in an existing intact family with hismother and presumed father or may have become attached overmany years to the man presumed to be his father.The legislature’s interest in stabilizing the family is reflected by thelegislature’s decision to make the two-year period peremptive rather thanprescriptive.DLS clearly stated at his deposition that he knew he was the father ofboth children immediately on learning of the mother’s pregnancies. Thetrial court specifically found that DLS knew of his paternity and was notdeceived. Under the facts in this case, we cannot conclude that the nearlysix months allowed by retroactive application of art. 191 was anunreasonably short time. Therefore, art. 191 is not unconstitutional asapplied in this case. Because art. 191 was the applicable law in this dispute,it is not necessary to address constitutional questions concerning currentArticle 198.Finally, we note that these two young children who have lost theirmother have a legitimate, legal father, BEB, since they were born during his9marriage to their mother. Whatever the outcome of the various paternitytests, the best interests of these children must be particularly determined insetting any appropriate custody and/or visitation. Stability and notseparating them are factors which weigh heavily in deciding their bestinterests.DECREEWith costs assessed against DLS, the judgment of the trial court isAFFIRMED.1CARAWAY, J., dissenting.The majority sets forth clearly the law before and after the 2004enactment of Civil Code Article 191 (now replaced by Article 198). In June2004, immediately before the enactment of Article 191, DLS was under nospecific time constraint regarding his ability to avow paternity of SWB orTEB, who was to be born two months later. T.D. v. M.M.M., 98-0167 (
La.
3/2/99), 730 So. 2d 873. Likewise, at that time, the best interests of thosetwo siblings regarding a relationship with DLS were not subject to anyperemptive period. We are now called upon to set a purely transitionalprescriptive rule for a unique case which has facts that evolved on bothsides of the date of the enactment of Article 191. The majority indicatesagreement with the Third Circuit Court of Appeal that, despite the expressretroactivity language of Article 191, DLS had to be provided with somereasonable time to act after June 25, 2004, regardless of the prior date ofbirth of SWB. If SWB had been born on June 26, 2002, the peremptiveperiod of the statute would not be allowed to make such a sudden divestitureof the parties’ rights one day after its enactment on June 26, 2004. I wouldtherefore fix the time period for DLS to act at one year from the date of theJune 25, 2004 statute as my transitional rule to govern the few cases such asthis that may ever arise. This would be in keeping with the similar one-yearperiods expressed in former Article 191 and new Article 198. Accordingly,I respectfully dissent. 

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