Bass v. Sepulvado

340 So.3d 1158

Garrett BASS

v.Christopher SEPULVADO, et al.

20-608

Court of Appeal of Louisiana, Third Circuit.

May 11, 2022

William D. Dyess, Dyess Law Firm, 207 Church Street, Suite 106, Post Office Box 18, Natchitoches, Louisiana 71457, (318) 352-5880, COUNSEL FOR PLAINTIFF/APPELLANT: Garrett Bass

Misty Dawn Smith, Dowden & Smith, L.L.C., 301 South Third Street, Leesville, Louisiana 71446, (337) 238-2800, COUNSEL FOR DEFENDANT/APPELLEE: Christopher Sepulvado

Christina Edwards, In Proper Person, 715 Blockhouse Road, Many, Louisiana 71449, PRO SE DEFENDANT/APPELLEE: Christina Edwards

Court composed of John E. Conery, D. Kent Savoie, Van H. Kyzar, Sharon Darville Wilson, and Gary J. Ortego,¹ Judges.

CONERY, Judge.

This case comes before the Court on a reversal and remand from the Louisiana Supreme Court.

In the underlying appeal, the plaintiff, Garrett Bass (Mr. Bass), sought to reverse the trial court's June 8, 2020 judgment granting the defendant Christopher Sepulvado's exception of peremption pursuant to La.Civ.Code art. 198, thereby dismissing Mr. Bass's petition to establish the paternity of S.J.S.² The mother of S.J.S., Christina Edwards, resumed her maiden name after her divorce from Mr. Sepulvado, and was named as a defendant in Mr. Bass's petition for paternity. Ms. Edwards filed a pro-se brief acknowledging that Mr. Bass was the father of S.J.S. On initial review, in a 3-2 ruling, this court reversed the trial court's ruling granting Mr. Sepulvado's exception of peremption pursuant to La.Civ.Code art. 198 and dismissed Mr. Bass's suit. See Bass v. Sepulvado , 20-608 (La.App. 3 Cir. 6/30/21) (an unpublished opinion) (2021 WL 2694865 ). We did so on the basis that Mr. Sepulvado made a judicial confession pursuant to La.Civ.Code art. 1853 that Mr. Bass was, in fact, the biological father of S.J.S., as well as an admission at trial to that same effect. Also, DNA evidence introduced at trial undeniably established that Mr. Bass is the biological father of S.J.S. Id.

The Louisiana Supreme Court subsequently granted writs, remanding this case to this Court by Per Curiam opinion, as follows:

Writ granted. The judgment of the appellate court is hereby reversed and this case is remanded to the court of appeal for a consideration of whether the requirements of La. C.C. art. 198 were met in light of this Court's decision in Kinnett v. Kinnett , 2020-01134, 332 So.3d 1149, reh'g denied , 2020-01156, ––– So.[3]d ––––, 2022 WL 263066 (La. 1/28/22 ).

Bass v. Sepulvado , 21-1124, p. 1 (La. 2/15/22), 332 So.3d 1174, 1174.

After reviewing the supreme court's decision in Kinnett v. Kinnett , 2020-01134 (La. 10/10/21), 332 So.3d 1149, we find that a reversal of the underlying trial court judgment and remand to the trial court is required.

FACTS AND PROCEDURAL HISTORY

Before beginning a discussion of the factual and legal issues on remand, we find from the uncontroverted facts in the record, the following:

August 2, 2003 – Ms. Edwards and Mr. Sepulvado were married.

October 16, 2016 - October 17, 2017 - Mr. Bass and Ms. Edwards were involved in an intimate sexual relationship. Ms. Edwards testified she did not use birth control during the entire the year 2017.

April 2017 - Ms. Edwards believed her minor daughter S.J.S. was conceived but is not sure of the exact date. At the time, Ms. Edwards was having unprotected sex with both Mr. Bass and Mr. Sepulvado. Mr. Sepulvado was working offshore and was gone for two or more weeks a time. Sometime between Ms. Edwards learning of her pregnancy and Mr. Sepulvado's petition for divorce in August, Ms. Edwards told Mr. Sepulvado she was pregnant and there was a possibility the child was not his.

August 14, 2017 - Mr. Sepulvado filed a Petition for Divorce pursuant to La.Civ.Code art. 103.2 based on adultery. He named Mr. Bass as the biological father of the fetus. Mr. Bass was not a party to that proceeding and hence was never served with the petition. Mr. Sepulvado testified the petition was dismissed, but there is no evidence of a dismissal in the record.

October 2017 - Mr. Sepulvado and Ms. Edwards reconciled and began living together again.

January 5, 2018 - S.J.S. was born. Mr. Sepulvado was named as the father of S.J.S. on the birth certificate.

March 28, 2018 - Mr. Sepulvado and Ms. Edwards again separated.

March 29, 2019 – Ms. Edwards filed for divorce based on the couple living separate and apart for a year.

April 4, 2019 – Mr. Sepulvado and Ms. Edwards's divorce became final.

May 2019 - Ms. Edwards and Mr. Bass resumed their relationship. Ms. Edwards had a hysterectomy and thus, would not be able to have any more children. Shortly thereafter, Ms. Edwards and Mr. Bass begin living together.

July 2019 – Ms. Edwards and Mr. Bass became engaged to be married.

August 10, 2019 – After Ms. Edwards and Mr. Bass were engaged, Ms. Edwards told Mr. Bass "that there was a possibility that [S.J.S.] was his."

September 20, 2019 - Mr. Bass immediately sought a DNA test and received the results which demonstrated that there was a 99.997% chance that S.J.S. was his child.

November 25, 2019 – Mr. Bass filed a Petition To Establish Paternity seeking to "be recognized as the natural and biological father" of S.J.S. and to add his name to the birth certificate of S.J.S. The petition was filed approximately one year and ten months after the birth of S.J.S, but only two (2) months after he received the DNA test establishing that he was the biological father of S.J.S.

December 13, 2019 - Mr. Sepulvado filed a Peremptory Exception pursuant to La.Civ.Code art.185, claiming that he was the presumed father of S.J.S. as she was born during the marriage, and that Ms. Bass's claim was perempted pursuant to La.Civ.Code art. 198.

June 5, 2020 – After several continuances and the delays associated with the COVID-19 public health emergency, the trial court held a hearing on Mr. Sepulvado's peremptory exception to Mr. Bass's Petition to Establish Paternity.

June 8, 2020 – Judgment was issued by the trial court granting Mr. Sepulvado's exception pursuant to La.Civ.Code art. 198. The trial court did not issue any findings of fact or reasons for ruling.

July 8, 2020 – Mr. Bass timely filed a devolutive appeal in this court.

May 4, 2021 - Mr. Bass's appeal was heard on the May 2021 Docket by a panel of this court, without oral argument.

May 25, 2021 - A Five Judge Panel was appointed to hear the appeal, also without additional briefing and oral argument.

June 30, 2021 – The 3-2 opinion of the appellate court was released reversing the trial court's June 8, 2020, judgment and granting Mr. Bass's avowal action naming him as the father of S.J.S. Judge Savoie filed a dissent, joined by Judge Kyzar.

July 30, 2021 - Mr. Sepulvado filed a writ with the Louisiana Supreme Court seeking to reverse this court's ruling.

February 15, 2022 - The Louisiana Supreme Court granted Mr. Sepulvado's writ, and remanded the case to this court to review in light of their ruling in Kinnett .

March 2, 2022 – Mr. Bass did not request a rehearing in the supreme court, and the case was remanded to this court.

Finding error of fact and law, we reverse the trial court and remand for further proceedings in light of the supreme court's ruling in Kinnett, 332 So.3d 1149.

LAW AND DISCUSSION

Consideration here begins with the supreme court's directive to consider "whether the requirements of La.C.C. art. 198³ were met in light of [the supreme] [c]ourt's decision in Kinnett , " a case released subsequent to this panel's original opinion in this case. See Bass , 332 So.3d at 1174.

The supreme court began its discussion in Kinnett with the foundational consideration of the burden of proof applicable to consideration of the one-year peremptive period of Article 198. The supreme court explained:

"Peremption has been likened to prescription; namely, it is prescription that is not subject to interruption or suspension." Lomont v. Bennett , 14-2483 (La. 6/30/15), 172 So.3d 620, 626-27 ; Rando v. Anco Insulations, Inc. , 08-1163 (La. 5/22/09), 16 So.3d 1065, 1082. The rules governing the burden of proof as to prescription also apply to peremption. Id . Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Id . But, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed . Id.

Id. at 1154 (emphasis added). It is on this basis that we find that a de novo review of the record is now required.

Unlike the situation in Kinnett , Mr. Bass's Petition to Establish Paternity is perempted on its face as he filed the avowal action on November 25, 2019 and alleged therein that the minor child, S.J.S., was born on January 5, 2018. He thus filed the petition more than one year after the child's birth.⁴ Notably, and again unlike Kinnett , Mr. Bass did not include in the petition a plea of the exception to La.Civ.Code art. 198 of bad faith on the part of Ms. Edwards. At the hearing, however, there was no objection to any of the evidence as to paternity as well as the applicability of the "bad faith" exception to the peremptive period, and therefore we find the pleadings were expanded and the evidence, such as it is, was properly admitted. See La.Code Civ.P. art. 1154 (providing, in part: "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading."). See also Hataway v. AKAL Sec., Inc. , 17-398 (La.App. 3 Cir. 12/28/17), 235 So.3d 1189.

Given the burden of proof set forth in Kinnett , 332 So.3d 1149, Mr. Bass was required to bear the burden of demonstrating that his Petition to Establish Paternity was not perempted. Mr. Bass was therefore required to prove that 1) Ms. Edwards acted "in bad faith" as to Mr. Bass's paternity of S.J.S. and that 2) the Petition to Establish Paternity was filed within one year of the day he knew or should have known of his paternity. See La.Civ.Code...