552 So.2d 609 (La.App. 2 Cir. 1989), 20,932, Starks v. Powell

• Date: 01 November 1989
• Citation: 552 So.2d 609
• Docket Number: 20,932-CA.
• Parties: Camilla Ann STARKS, Plaintiff-Appellee, v. Marvin POWELL, Jr., Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 609

552 So.2d 609 (La.App. 2 Cir. 1989)

Camilla Ann STARKS, Plaintiff-Appellee,

v.

Marvin POWELL, Jr., Defendant-Appellant.

No. 20,932-CA.

Court of Appeals of Louisiana, Second Circuit.

November 1, 1989

Page 610

Hunter, Scott, Blue, Johnson & Ross by Louis Granderson Scott, Monroe, for defendant-appellant.

Bobby L. Culpepper, Jonesboro, for plaintiff-appellee.

Before SEXTON, NORRIS and HIGHTOWER, JJ.

HIGHTOWER, Judge.

Defendant, Marvin Powell, Jr., appeals a trial court judgment declaring him to be the biological father of a minor and ordering him to pay child support. We affirm.

Plaintiff, Camilla Ann Starks, was married to Henry Starks in 1973. They physically separated in 1980, and a judgment of separation was rendered that same year. On February 9, 1984, they were divorced; on October 19, 1984, Duarta Starks was born to plaintiff. Defendant and plaintiff had a sexual relationship beginning in the late 1970's and continuing, with a few brief lapses, until after the birth of the child.

Plaintiff, as natural tutrix, filed suit seeking to have the defendant decreed the biological father of the child and directed to provide support. Mr. Starks, the presumed father later added as a defendant in response to an exception, failed to answer after being served. He apparently acquiesced in the proceedings, and has not appealed.

Following trial, the judge a quo determined that the blood testing results and scientific evidence, coupled with the testimony of the parties, more than adequately met the burden of proof incumbent upon plaintiff. It was found that during the period of conception plaintiff engaged in sexual relations only with the defendant, who was adjudicated the biological father. The trial court decided that plaintiff could maintain the action on behalf of the child despite the legal presumption of paternity, LSA-C.C. Arts. 184, 185, toward her former husband. Finally, child support of $200 a month was awarded.

This appeal urges two specifications of error. It is argued that the trial court erred in finding appellant to be the biological father of the child despite the presumption in law that the child is legitimate as to Mr. Starks. Secondly, appellant contends that it was error to proceed to trial in the case because a dismissal had resulted from the plaintiff's failure to timely amend her petition. Appellant does not question the

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sufficiency of evidence concerning paternity. We will address the issues in reverse order.

DISCUSSION

In the original petition, plaintiff failed to name Mr. Starks as a party. Defendant filed, as one of three exceptions, a peremptory exception of failure to add an indispensable party. After a September 19, 1986 hearing, the exception was taken under advisement. In written reasons for judgment filed September 23, 1986, the trial court sustained the objection and stated that plaintiff was "given 20 days from the date of the reasons for judgment to amend the petition to add thereto as defendant Henry Starks." The decision further enounced that failure to so amend would result in dismissal. In his first specification of error, appellant-defendant contends that the amended petition was not filed until October 20, 1986, some seven days after the ordered date, and therefore the case was automatically dismissed in accordance with the judge's decision.

Appellee-plaintiff maintains that, on October 1, 1986, the amendment was mailed to the clerk of court. The attorney's certificate of service does show a copy sent to opposing counsel then, but a filing date of October 20 is reflected by the clerk's office. On the other hand, the record contains no signed judgment or notice of judgment, LSA-C.C.P. Art. 1914, effectuating the 20 day time limit and dismissal provisions set forth by the trial judge in his reasons for judgment. More importantly, though, we disagree with appellant's...