Kelley v. Kelley

376 So.3d 320

55,358 (La.App. 2 Cir. 12/20/23)

Steven Marcus KELLEY, Appellant

v.Jeannie Marie KELLEY (Now Jenkins), Andrea Gail Kelley, and Hannah Grace Kelley, Appellees

No. 55,358-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment Rendered December 20, 2023.

Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana, Trial Court No. 2022-1731, Honorable Daniel J. Ellender, Judge

LAYNE M. ADAMS, Monroe, Counsel for Appellant

SNELLINGS, BREARD, SARTOR, INABNETT & TRASCHER, LLP, Monroe, By: Wendy E. W. Giovingo, Counsel for Appellees

Before PITMAN, COX, STEPHENS, THOMPSON, and HUNTER, JJ.

STEPHENS, J.

₁Steven Marcus Kelley ("Steven") and Jeannie Marie Kelley (now Jenkins) ("Jeannie") were married on December 10, 2011. At that time, Jeannie had two children, Andrea Gail, d.o.b. 5-21-03, and Hannah Grace, d.o.b. 3-21-07. Neither of the children are the biological children of Steven, something that both parties knew, and there is no other presumptive father involved.

On August 21, 2012, Steven, with Jeannie’s concurrence, formally acknowledged Hannah Grace in an Acknowledgment of Paternity Affidavit form for a child born outside of marriage prepared by the State of Louisiana (VRR-44 2P (05/10)). On August 18, 2014, Steven, again with Jeannie’s concurrence, acknowledged Andrea Gail in an Acknowledgment of Paternity Affidavit for a child born outside of marriage form prepared by the State of Louisiana (VRR-44 2P (1/05)). Again, these acknowledgements were entered into by both Steven and Jeannie fully aware that he was not the biological father of either child.

Both parties agree that before each acknowledgment, the notary public failed to apprise them, either in writing or orally, of the required information set forth in La. R.S. 9:392. Steven asserts that the reason he formally acknowledged each child was to give them his last name.

₂On February 6, 2019, Steven and Jeannie physically separated. On June 20, 2019, Jeannie filed an amended and supplemental petition for divorce requesting that Steven be ordered to pay child support. On May 16, 2022, Steven filed a petition to revoke his formal acknowledgment of the two children. On June 8, 2022, Jeannie filed an exception of no cause of action and peremption. On November 29, 2022, after a hearing, the trial court sustained Jeannie’s exception of peremption and dismissed Steven’s petition for revocation of the acknowledgments of paternity.¹ Steven has appealed from this adverse judgment.

DISCUSSION

Steven alleges that the trial court’s judgment is erroneous and sets forth three assignments of error: (1) the trial court erred in finding that the 2016 amendment to La. C.C. 195 was procedural rather than substantive and applying the current version of the article to his action to revoke the acknowledgments; (2) the trial court erred in failing to find that acknowledgments, signed by both parents attesting that he was the biological father of the girls, were absolute nullities that were not subject to preemption; and (3) the trial court erred in failing to find that the notary’s failure to advise him and Jeannie of the rights and ₃requirements set forth in La. R.S. 9:392(A)(1)-(8) in conjunction with the execution of both acknowledgments as mandated by Louisiana law.

Jeannie contends that the trial court did not err in sustaining the exception of preemption. First, the trial court properly applied La. C.C. art. 195 as amended in 2016 to the facts of this case, as Steven knew when he signed the acknowledgments he had become the legal father to the girls. Jeannie next asserts that the trial court did not err in finding that the acknowledgments were not absolute nullities. In support, she cites Wetta v. Wetta, 21-92 (La. App. 3 Cir. 6/2/21), 322 So. 3d 365, writ denied, 21-00940 (La. 10/19/21), 326 So.3d 255. As for Steven’s argument that the trial court’s judgment is erroneous because the requirements of La. R.S. 9:392 were not met, Jeannie disagrees, but even so, application of the unclean hands doctrine would prevent Steven from maintaining his cause of action.

In his second assignment of error, Steven asserts that the trial court erred in finding that an absolute nullity could be perempted. Steven concedes that under La. C.C. art. 195, the peremptive period is 180 days. Furthermore, that 180 days had passed when his petition to revoke the acknowledgments had been filed. However, Steven contends that a false acknowledgment is no ₄acknowledgment at all. It is an absolute, not a relative nullity, and as such, produces no effects whatsoever.

La. C.C. art. 195 provides:

A man who marries the mother of a child not filiated to another man and who, with the concurrence of the mother, acknowledges the child by authentic act is presumed to be the father of that child.

The husband may disavow paternity of the child as provided in Article 187. Revocation of the authentic act of acknowledgment alone is not sufficient to rebut the presumption of paternity created by this Article.

The action for disavowal is subject to a peremptive period of one hundred eighty days. This peremptive period commences to run from the day of the marriage or the acknowledgment, whichever occurs later.

La. R.S. 9:406(B) provides:

(1) If the notarial act of acknowledgment has not been revoked within sixty days in accordance with the provisions of Subsection A of this Section, a person who executed an authentic act of acknowledgment may petition the court to annul the acknowledgment only upon proof, by clear and convincing evidence, that such act was induced by fraud, duress, material mistake of fact or error, or that the person is not the biological parent of the child.

(2) The petitioner shall institute the annulment proceeding by ordinary process in a court of competent jurisdiction upon notice to the other party who executed the notarial act of acknowledgment and other necessary parties including the office of children and family services, child support enforcement section of the Department of Children and Family Services.

(3) If the court finds based upon the evidence presented at the hearing that there is substantial likelihood that fraud, duress, material mistake of fact or error existed in the execution of the act or that the person who executed the authentic act of acknowledgment is not the biological father, then, ₅and only then, the court shall order genetic tests pursu- ant to R.S. 9:396. Nothing herein shall preclude the petitioner from presenting any other evidence as a substitute for the genetic tests if it is not possible to conduct such tests.

(4) The test results certified under oath by an authorized representative of an accredited laboratory shall be filed with the court and shall be admissible on the issue of paternity pursuant to R.S. 9:397.3. If the test results show a statistical probability of ninety-nine point nine percent or greater, a rebuttable presumption of paternity shall be established. If the acknowledged father is found excluded by the tests, an action seeking support or an established order of support shall be dismissed and the acknowledgment of paternity shall be annulled. A judgment dismissing an established order of support does not affect any child support payment or arrearages paid, due or owing prior to the date the annulment was filed.

(5) The burden of proof in this proceeding shall be upon the party seeking to revoke the authentic act of acknowledgment. The testimony of the petitioner shall be corroborated by other evidence.

The legislative comments to the 2016 amendment of La. R.S. 9:406 state:

The 2016 revision repeals the two-year prescriptive period previously imposed for revocation of authentic acts of acknowledgment. That prescriptive period was illogical where the acknowledgment was executed by a man who was not the father of the child. The Louisiana Supreme Court has held the execution of such an acknowledgment to be an absolute nullity absent the requisite biological relationship supporting it. Succession of Robinson, 94-2229 (La. 5/22/95), 654 So. 2d 682. To speak of prescription when a father seeks a declaration of absolute nullity is inappropriate, as absolute nullities are imprescriptible. La. C.C. art. 2032.

La. C.C. art. 1833(A) provides in part that an authentic act is a writing executed before a notary public or other ₆officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed. La. C.C. art. 1835 provides that an authentic act provides full proof of the agreement it contains, as against the parties, their heirs, and successors by universal or particular title. La. C.C. art. 1848 provides that testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent or to prove that the written act was modified by a subsequent and valid oral agreement. Likewise, where it is alleged that the authentic act is made in contravention to the law, evidence relevant to this fact is admissible to prove what legal effect, if any, the act will be given. Succession of Robinson, 99-2229 at p. 5, 654 So. 2d at 685.

In Succession of Robinson, supra, at p. 4, 654 So. 2d at 684, the court declared that the validity of a formal acknowledgment depended upon whether the decedent was the intervenors’ (the decedent’s acknowledged children’s) biological father. The court noted that, although C.C. art. 203, which provided for the formal acknowledgment of an illegitimate child, does not expressly preclude executing an ₇acknowledgment where no biological relationship exists, this conclusion is self-evident and definitional of an acknowledgment. "Absent a biological relationship, the avowal is null. ‘A fact cannot be avowed when it has...