Wetta v. Wetta

322 So.3d 365

Destany Schexnider WETTA

v.David WETTA

21-92

Court of Appeal of Louisiana, Third Circuit.

June 2, 2021

Kim Reginald Hayes, Kim R. Hayes Law Corp. APLC, P. O. Drawer 369, Crowley, LA 70527-0369, (337) 785-2760, COUNSEL FOR PLAINTIFF APPELLEE: Destany Schexnider Wetta

Dean Alan Doherty, Cox Fitzgerald, LLC, 405 W. Convent St., Lafayette, LA 70501, (337) 232-7747, COUNSEL FOR OTHER APPELLEE: A.S. (minor)

Joshua D. Roy, Roy H. Maughan, Jr., Namisha D. Patel, The Maughan Law Firm, Attorney at Law, 634 Connell's Park Lane, Baton Rouge, LA 70806, (225) 926-8533, COUNSEL FOR DEFENDANT APPELLANT: David Wetta

Court composed of Candyce G. Perret, Sharon Darville Wilson, and Charles G. Fitzgerald, Judges.

WILSON, Judge.

David Wetta filed a Petition to Revoke and Annul Act of Acknowledgement and Disavow Paternity relative to the minor child of Destany Wetta (A.S.)¹ . In response, Mrs. Wetta filed "[Liberative] and Peremptory Exceptions of Prescription." The trial court granted Mrs. Wetta's motion and dismissed Mr. Wetta's petition. Mr. Wetta appeals. For the following reasons, we affirm.

I.ISSUES

We must decide:

(1) Whether [Mr. Wetta had] a cause of action pursuant to Louisiana Revised Statutes 9:406 (B) to annul the "Acknowledgment of Paternity Affidavit" he signed on November 4, 2016, on the basis that he is not the biological father of A.S.;

(2) Whether [Mr. Wetta's] cause of action pursuant to Louisiana Revised Statutes 9:406 (B) to annul the "Acknowledgment of Paternity Affidavit" he signed on November 4, 2016[,] should have been considered by the trial court;

(3) Whether [Mr. Wetta's] action to annul the "Acknowledgment of Paternity Affidavit" he signed on November 4, 2016, based on the undisputed fact that he is not the biological father of A.S. was preempted or prescribed;

(4) Whether the cause of action to annul an authentic act of acknowledgment afforded under Louisiana Revised Statutes 9:406 (B) on the basis that a person is not the biological father of the child is subject to any preemptive or prescriptive periods;

(5) Whether, pursuant to Louisiana Revised Statutes 9:406 (B), Appellant may seek to annul the "Acknowledgment of Paternity Affidavit" he signed on November 4, 2016, when there is no biological relationship between Mr. Wetta and the minor child acknowledged in the affidavit;

(6) Whether an "Acknowledgment of Paternity Affidavit" executed in contravention of the law (i.e. the father is not the biological parent) and is thus absolutely null can produce any effects (i.e. presumption of paternity);

(7) Whether a presumption of paternity under La. C.C. art. 195 is created or arises when the authentic act of acknowledgement is absolutely null;

(8) Whether the cause of action to disavow paternity is subject to any preemptive or prescriptive period under La. C.C. art. 195 when an authentic act of acknowledgment is absolutely null;

(9) Whether Mr. Wetta's action to disavow paternity is subject to any preemptive or prescriptive period when he is not the biological father of the minor child and the authentic act of acknowledgment he signed is absolutely null [; and]

(10) Whether Mr. Wetta should be allowed to amend his Petition to Revoke and Annul Act of Acknowledgement and Disavow Paternity should this Court affirm the trial court's ruling sustaining the Peremptory Exception of Peremption.

II.FACTS AND PROCEDURAL HISTORY

Destany Schexnider Wetta, Plaintiff/Appellee, is the biological mother of a minor child (A.S.) born on June 29, 2015. The biological father is unknown. On June 2, 2016, Mrs. Wetta married David Wetta, Defendant/Appellant, and on November 4, 2016, Mr. Wetta executed an authentic act entitled Acknowledgment of Paternity Affidavit, acknowledging paternity of A.S. Mr. and Mrs. Wetta did not know each other when A.S. was conceived or even when she was born; therefore, it is clearly stipulated by both parties that Mr. Wetta is not the biological father of A.S. It is undisputed that Mr. Wetta was aware of that fact when he signed the Acknowledgment of Paternity Affidavit. It is also undisputed that A.S. is not filiated to another man.

On August 1, 2019, Mrs. Wetta filed a Petition for Divorce against Mr. Wetta. In connection with the divorce, Mrs. Wetta sought custody of A.S. and child support. On December 16, 2019, Mr. Wetta filed a Motion to Revoke and Annul Act of Acknowledgment and Disavow Paternity. In response, Mrs. Wetta filed Liberative and Peremptory Exceptions of Prescription asserting that Mr. Wetta's petition should be dismissed, with prejudice, because he failed to state a cause of action and because the action had prescribed under La. Civ. Code art. 195. On August 11, 2020, the trial court granted the exception of peremption and dismissed Mr. Wetta's motion at his cost.

III.STANDARD OF REVIEW

The appellate court reviews the trial court's denial of an exception of no cause of action using the de novo standard of review because it raises an issue of law. Cole v. Sabine Bancshares, Inc. , 17-272 (La.App. 3 Cir. 12/6/17), 258 So.3d 641, writ denied , 18-19 (La. 2/23/18), 237 So.3d 1188.

The standard of review of a grant of an exception of prescription is determined by whether evidence was adduced at the hearing of the exception. If evidence was adduced, the standard of review is manifest error; if no evidence was adduced, the judgment is reviewed simply to determine whether the trial court's decision was legally correct. The party pleading the exception of prescription bears the burden of proof unless it is apparent on the face of the pleadings that the claim is prescribed, in which case the plaintiff must prove that it is not.

Arton v. Tedesco , 14-1281, p. 3 (La.App. 3 Cir. 4/29/15), 176 So.3d 1125, 1128, writ denied , 15-1065 (La. 9/11/15), 176 So.3d 1043 (citation omitted).

IV.LAW AND DISCUSSION

La.R.S. 9:406(B) v La. Civ.Code art. 195

At the core of all the issues presented to this court for review is the relationship between La.R.S. 9:406(B) Acknowledgment of Paternity Affidavit (act of acknowledgment) and La. Civ. Code art 195 Disavowal of Paternity. Mr. Wetta filed a Petition to Revoke and Annul Act of Acknowledgement and Disavowal Paternity. During the trial, the trial court Judge ruled that the court would be treating Mr. Wetta's petition as a disavowal action pursuant to La. Civ. Code art. 195. In his brief to this court, Mr. Wetta asserts that the trial court erred when it treated his petition as simply a disavowal action and disregarded the request to revoke or annul the acknowledgement of paternity affidavit.

At the trial, Mr. Wetta argued the act of acknowledgment should be revoked or annulled because he is not the biological father of A.S. Louisiana Revised Statutes 9:406(B)(1) states:

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.

In the trial court's written reasons following the trial, the trial court states that Mr. Wetta's "argument misses the point." This court agrees and rejects Mr. Wetta's argument.

Mr. Wetta's argument suggests that revoking and annulling the act of acknowledgment and the disavowal of paternity are two separate and distinct issues before the court. That is simply not the case here. Louisiana jurisprudence is clear, the court is to consider pleadings not by the caption but by the body of the document in order to ascertain their substance and to do substantial justice to the parties. Alexander v. Blade , 20-337 (La.App. 3 Cir. 12/16/20), 310 So.3d 232. In Mr. Wetta's petition he prays that the trial court issues a ruling "decreeing that Petitioner, is not the father of the minor child..." Mr. Wetta filed the petition after Mrs. Wetta moved for child support. It is clear to this court, as it was to the trial court, that Mr. Wetta did not simply intend to revoke or annul his act of acknowledgment but ultimately his goal was to disavow A.S. More importantly, Mr. Wetta cannot annul or revoke his act of acknowledgment without a resulting disavowal of paternity. As will be discussed below, revoking or annulling an acknowledgement of paternity affidavit would result in rebutting the presumption of paternity created by La. Civ. Code art 195. The legislature has provided laws as to how the presumption of paternity can be rebutted, which explicitly includes La.R.S. 9:406(B). Therefore, the trial court did not err in treating this matter as a disavowal action because ultimately that is the result being sought by Mr. Wetta's petition.

Louisiana Civil Code Article 195 states:

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.

As stated above, this article creates a presumption of paternity. Mr. Wetta argues that without a valid authentic act of acknowledgment, the presumption does not exist. Mr. Wetta argues that the act of acknowledgment is null for two reasons. He argues that the attestation clause signed by Mrs. Wetta in the act of acknowledgment was a misrepresentation of the truth because she was aware that A.S. was not the biological child of Mr. Wetta. In the trial on this matter, the trial court mentions the unclean...