State v. Lowrie

• Decision Date: 05 May 2015
• Docket Number: No. 2014–CC–1025.,2014–CC–1025.
• Citation: 167 So.3d 573
• Parties: STATE of Louisiana, DEPARTMENT OF CHILDREN AND FAMILY SERVICES, in the Interest of A.L. v. Thomas Robert LOWRIE.
• Court: Louisiana Supreme Court

167 So.3d 573

STATE of Louisiana, DEPARTMENT OF CHILDREN AND FAMILY SERVICES, in the Interest of A.L.

v.Thomas Robert LOWRIE.

No. 2014–CC–1025.

Supreme Court of Louisiana.

May 5, 2015.

Opinion

HUGHES, J.^*

This writ presents the issue of whether an alleged biological father should be joined in a child support enforcement action, filed pursuant to LSA–R.S. 46:236.1.1 et seq. against the legally-presumed father. The juvenile court denied joinder, and the appellate court denied writs. Concluding that a biological father owes an obligation of support to his child, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

In December of 2002 Thomas Robert Lowrie married Melissa Percy Lowrie, who gave birth to two children during the marriage: A.L., born February 4, 2003; and B.W., born May 4, 2009. In October of 2010 the Lowries were divorced.

Although the children were born during the marriage, Mr. Lowrie, believing that Stephen A. Wetzel was the biological father of the children, sought to disavow paternity of the children. Mr. Lowrie successfully disavowed paternity of the younger child, B.W., in January of 2011; however, his action to disavow the older child, A.L., was found to be untimely. Therefore, Mr. Lowrie remains the legal father of A.L.

In September of 2012, the State of Louisiana, Department of Children and Family Services (“DCFS”), represented by the Jefferson Parish District Attorney (collectively, “State”), filed an action in the Jefferson Parish Juvenile Court against Mr. Lowrie, seeking medical and child support for A.L. DCFS alleged that it was providing services for A.L., which created a cause of action in favor of the State pursuant to the State's child support enforcement law, LSA–R.S. 46:236.1.1 et seq.

The court minutes for January 22, 2013 stated that both A.L.'s mother and Mr. Lowrie appeared, along with counsel, before the juvenile court hearing officer on a rule for child support.¹ The hearing officer noted that “[t]here is a biological father also [and] his income was imputed as $1919.00 from the Louisiana Occupational Handbook.” The minutes also noted that the hearing officer calculated what the proportional amount of child support for Mr. Lowrie would be if the combined monthly income for the parties included the attributed income of the biological father; the monthly amount owed by Mr. Lowrie when calculated by that method was $869.00. However, the minute entry further stated:

The hearing officer does not agree with the foregoing methodology and will not consider the income of the biological father in the calculation.

The hearing officer cannot proceed with the calculation of another worksheet as both parties may be benefitting from expense sharing and sufficient information is not available.

[The] [h]earing officer recommends that [a] temporary order of support be entered in the amount of $500.00 ... every month.... ^{[ 2 ]}

A judgment was thereafter signed by the juvenile court judge ordering that the recommendation of the hearing officer be made the judgment of the court.

On July 19, 2013, Mr. Lowrie filed a “Petition for Third Party Claim,” alleging that Mr. Wetzel was a necessary and indispensable party to the support proceeding, asserting that Mr. Wetzel's income should be included in any child support calculation, and requesting that Mr. Wetzel be made a party defendant. In response, Mr. Wetzel filed exceptions of no cause of action, no right of action, lack of procedural capacity, and vagueness.

Following a December 9, 2013 review by the juvenile court hearing officer, the hearing officer recommended that Mr. Lowrie's third party claim be dismissed, stating:

Thomas Robert Lowrie (original defendant herein) is the legal father of [A.L.], having been married to the mother of said child, Melissa Danielle Lowrie. Mr. Lowrie is listed as the child's father on the birth certificate. A disavowal action has been dismissed as untimely.

Stephen A. Wetzel argues through counsel that he has not been found to be the biological father of [A.L.], and that the proper plaintiff in any filiation action is Melissa Danielle Lowrie, the recipient of child support herein, rather than the [DCFS]. Ms. Lowrie has not filed any action to have Mr. Wetzel named as the child's biological father.

The hearing officer recommends that the Third Party Claim be dismissed as to Stephen A. Wetzel, as he has not been found to be the biological father of [A.L.] (or to have any official relationship to the child) and therefore has no obligation to provide support.

The attorney for Thomas Robert Lowrie disagrees and requests a hearing before the judge.

During the subsequent February 24, 2014 hearing before the juvenile court judge, Mr. Lowrie proffered into evidence Melissa Lowrie's March 2013 answers to interrogatories, wherein she admitted that: Mr. Wetzel was the biological father of both B.W. and A.L.; Mr. Wetzel submitted to paternity testing for A.L.; the results of the paternity test reflected that Mr. Wetzel was the biological father of A.L.; and, she was living with Mr. Wetzel. A copy of the 2008 “Paternity Analysis Report” was also proffered and filed into the juvenile court record; it stated that Mr. Wetzel's probability of paternity of A.L. was 99.17%.³ The juvenile court judge ruled to uphold the hearing officer's December 9, 2013 recommendation to dismiss Mr. Lowrie's third party demand against Mr. Wetzel.

Mr. Lowrie applied for supervisory review to the appellate court, which denied his application. See State, Department of Children and Family Services ex rel. A.L. v. Lowrie, 14–0210 (La.App. 5 Cir. 4/16/14) (unpublished). Mr. Lowrie then filed a writ application with this court, which was granted. See State, Department of Children and Family Services ex rel. A.L. v. Lowrie, 14–1025 (La.10/3/14), 149 So.3d 275.

LAW AND ANALYSIS

Third Party Demand

A demand incidental to the principal demand may be instituted against an adverse party, a co-party, or against a third person. LSA–C.C.P. art. 1031(A). Incidental demands are reconvention, cross-claims, intervention, and the demand against third parties. LSA–C.C.P. art. 1031(B). The defendant in a principal action by petition may bring in any person, including a codefendant, who is his warrantor, or who is or may be liable to him for all or part of the principal demand. LSA–C.C.P. art. 1111. In such cases the plaintiff in the principal action may assert any demand against the third party defendant arising out of or connected with the principal demand. Id.

However, the legislature did not intend that LSA–C.C.P. art. 1111 be used by a third party plaintiff to implead a third party defendant on the assertion that he is liable to the original plaintiff directly for all or part of the original plaintiff's demand. Article 1111 provides, rather, that the third party demand must allege that the third party defendant is liable to the third party plaintiff for all or part of the principal demand. See Karam v. St. Paul Fire & Marine Insurance Company, 281 So.2d 728, 732 (La.1973). When a third party plaintiff does not allege that the third party defendant is liable to them for all or part of the principal demand, the third party demand fails to state a cause of action. Id.

In this case, Mr. Lowrie's “third party claim” against Mr. Wetzel did not assert that Mr. Wetzel was his warrantor or that Mr. Wetzel was liable to him for all or part of the principal demand; therefore, the claims asserted were not properly presented as a third party demand.

Nevertheless, our Code of Civil Procedure requires that every pleading be so construed as to do substantial justice. See LSA–C.C.P. art. 865. Further, the articles of the Code of Civil Procedure are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves. See LSA–C.C.P. art. 5051.

Harsh rules of pleading are not favored in this state. Each pleading must be reasonably construed so as to afford the litigant his day in court, arrive at the truth, and do substantial justice. Succession of Smith, 247 La. 921, 928, 175 So.2d 269, 271 (La.1965). See also Quinn v. Louisiana Citizens Property Insurance Corporation, 12–0152 (La.11/2/12), 118 So.3d 1011, 1017 n. 6 ; First National Bank of Picayune v. Pearl River Fabricators, Inc., 06–2195 (La.11/16/07), 971 So.2d 302, 308–09. The characterization of a pleading by the litigant is not controlling. Pleadings are taken for what they actually are and not for what their authors designate them. A court should not reject a justiciable cause “merely because it is dressed in the wrong coat.” Succession of Smith, 175 So.2d at 271. See also Alcorn v. City of Baton Rouge ex rel. Baton Rouge Police Department, 03–2682 (La.1/16/04), 863 So.2d 517, 519 ; Katz v. Katz, 412 So.2d 1291, 1293 (La.1982) ; Smith v. Cajun Insulation, Inc., 392 So.2d 398, 402 n. 2 (La.1980) (“Courts should look through the caption of pleadings in order to ascertain their substance and to do substantial justice to the parties.”).

As in Succession of Smith, we must analyze the pleading at issue and determine what, in reality, it asserts. See 175 So.2d at 271–72. An analysis of Mr. Lowrie's “Petition for Third Party Claim” discloses that the pleading contends that Mr. Wetzel is a necessary and indispensible party to this suit, that Mr. Wetzel's income should be included in any child support calculation, and that Mr. Wetzel should be made a party defendant. Therefore, in reality, the pleading presents an LSA–C.C.P. art. 927(A)(4) peremptory exception pleading the objection of nonjoinder of a party and a defense on the merits (i.e., owing to the fact that Mr. Wetzel is allegedly the biological father of A.L., a mechanical application of the child support guidelines would be inequitable to Mr. Lowrie, so that a deviation from the guidelines to include the income of Mr. Wetzel is warranted pursuant to LSA–R.S. 9:315.1(B)(1) ).

We examine, first, the...