Smith v. Cole

• Decision Date: 11 December 1989
• Docket Number: No. 89-C-1134,89-C-1134
• Citation: 553 So.2d 847
• Parties: Ledora McCathen SMITH v. Playville Joseph COLE. 553 So.2d 847, 58 U.S.L.W. 2404
• Court: Louisiana Supreme Court

Page 847

553 So.2d 847

Ledora McCathen SMITH v. Playville Joseph COLE.

No. 89-C-1134.

553 So.2d 847, 58 U.S.L.W. 2404

Supreme Court of Louisiana.

Dec. 11, 1989.

William R. Ary, New Orleans, for defendant-applicant.

Charles R. Grady, New Orleans, for plaintiff-respondent.

COLE, Justice.

The issue is whether a biological father is obligated to provide support for his child notwithstanding the child was conceived or born during the mother's marriage to another person and thus the legitimate child of that other person. In this instance, the mother asserts a filiation and support action against the alleged biological father. He filed the peremptory exception raising the objections of no cause of action and no right of action. The trial court sustained the exception and dismissed the action, invoking La.Civil Code article 184 which provides: "The husband of the mother is presumed to be the father of all children born or conceived during the marriage." The court of appeal, applying the concept of dual paternity, held a biological father has an obligation to support his child. It thus reversed and remanded for further proceedings. 541 So.2d 307 (La.App. 5th Cir.1989). We affirm.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff, Ledora McCathen Smith, married Henry Smith on March 28, 1970. They had two sons, Henry and Derrick. During the fall of 1974, the Smiths physically separated, never reconciling. Thereafter, plaintiff began her five year cohabitation with defendant, Playville Cole. The child who is the subject of this action, Donel Patrice Smith, was born on December 25, 1975, approximately a year after plaintiff and defendant began living together. The birth certificate names Smith as Donel's father. The Smiths were not divorced until April 5, 1978.

The affidavit of Henry Smith, now a resident of California, avers he is not the biological father of Donel and affirms he never petitioned to disavow her paternity. Smith swears that Cole acknowledged to him his paternity of Donel; and, during late 1976, plaintiff and Cole attempted to influence him into executing certain documents which would allow Cole to change Donel's surname from Smith to Cole, "but that he refused to cooperate with them out of anger and the matter was dropped."

Plaintiff's divorce from Henry Smith was uncontested. His interests were represented by a curator ad hoc because it was not known where he could be found. The divorce petition declared only that "of this marriage, two children were born: Henry Smith, born September 29, 1970 and Derrick Smith, born June 13, 1974." Accordingly, the divorce judgment granted plaintiff "permanent custody of the minor children born of the marriage, namely, Henry and Derrick Smith." The divorce judgment did not mention Donel Patrice Smith.

Plaintiff and Cole ceased their cohabitation in February of 1980. On May 18, 1988 plaintiff brought this action against Cole, in forma pauperis, to prove paternity and obtain child support. The petition claimed that 1) plaintiff and Cole are the natural parents of Donel Patrice Smith, born December 25, 1975 and 2) Cole has acknowledged he is the father of this child by his acts and admissions.

Rather than answering the petition, Cole filed his exception. ¹ He claimed that as the Smiths were married when Donel was born and as Henry Smith did not disavow paternity, he is Donel's presumed father. LSA-C.C. art. 184. Citing Burrell v. Burrell, 154 So.2d 103 (La.App. 1st Cir.1963), and Finnerty v. Boyett, 469 So.2d 287 (La.App. 2d Cir.1985), Cole asserted that because Donel has a legitimate father, her mother should not be allowed to bastardize her just to obtain money. In response, plaintiff filed only the previously described affidavit of Henry Smith.

The exception was heard on September 8, 1988, before a hearing officer pursuant to LSA-R.S. 46:236.5(C)(5) and Domestic Rule XII of the 24th Judicial District Court. The trial court sustained the exception on September 16, 1988. Plaintiff appealed the dismissal of her petition, claiming certain children can enjoy dual paternity rights. She argued to the appellate court that even though her former husband is Donel's presumed father, her suit to identify Cole as Donel's biological father for the purpose of obtaining support should not have been dismissed.

The Court of Appeal first determined the petition sets forth a cause of action for which the law provides a remedy, then determined plaintiff is the proper party to bring the action. Referring to the wrongful death action of Warren v. Richard, 296 So.2d 813 (La.1974), the appellate court recognized that persons have been allowed to establish their true parentage even though they enjoyed legitimate filiation to another. The petition was found to state a cause of action because, regardless of the legal father's duty of support, the biological father has a financial responsibility for his progeny. LSA-C.C. art. 240; State in interest of Guillory v. Guillory, 407 So.2d 1327 (La.App. 3d Cir.1981).

Cole sought review from this court, asserting the mother of a child legitimate by virtue of LSA-C.C. art. 184 was without a right to bastardize her child merely to obtain child support. We granted certiorari to review Cole's claim and the viability of dual paternity in Louisiana following the amendment of the Civil Code's filiation articles by Act 720 of 1981. 544 So.2d 385 (La.1989).

DUAL PATERNITY IN LOUISIANA

Promotion and protection of the family unit were the principal reasons behind Louisiana's historically harsh treatment of illegitimate children. See Note, "All in the Family: Equal Protection and the Illegitimate Child in Louisiana Succession Law," 38 La.L.Rev. 189 (1977). For example, until 1981, Civil Code provisions prohibited fathers with legitimate descendants, ascendants or collaterals, or a surviving spouse, from bequeathing a mortis causa donation to their illegitimate offspring. LSA-C.C. art. 919, repealed by Acts of 1981, No. 919 Sec. 1. ² Children of maternal adulteries usually escaped the sanctions accorded illegitimates, however, because they were considered the legitimate offspring of their mother's husband. See Succession of Robins, 349 So.2d 276 (La.1977) [discussion of the inequities existing between maternal adulteries and paternal adulteries]; Tannehill v. Tannehill, 261 La. 933, 261 So.2d 619 (1972) [unless the birth of the child has been concealed from the father, disavowal is prohibited when sought because of adultery of the wife, citing LSA-C.C. art. 185].

With the social and legal stigmas which attached to illegitimacy, it is not surprising that the courts rigorously applied the presumption of LSA-C.C. art. 184, that "the law considers the husband of the mother as the father of all children conceived during the marriage." Tannehill v. Tannehill, supra. ³ The policy was to protect innocent children against attacks upon their paternity and the presumption was the strongest known in law. Tannehill v. Tannehill, supra; Mock v. Mock, 411 So.2d 1063 (La.1982); Feazel v. Feazel, 222 La. 113, 62 So.2d 119 (1952); Phillips v. Phillips, 467 So.2d 132 (La.App. 3d Cir.1985); Burrell v. Burrell, 154 So.2d 103 (La.App. 1st Cir.1963). The presumption was so rigorously applied that in Tannehill, which was written in 1972, this court acknowledged it had never allowed a disavowal of paternity (although we recognized two appellate court decisions had permitted disavowels in cases where the children were born more than 300 days after judgments of separation had been rendered). 261 So.2d at 621. Not even Mr. Tannehill's disavowal action succeeded, as the statutory prohibition against disavowal for natural impotence was also found to prohibit disavowal for sterility due to childhood disease.

The Article 184 presumption was not without flaws. While it promoted the policy against bastardizing children, it often failed to conform with reality. A husband, who could not possibly be or who clearly was not the biological father, was nonetheless conclusively presumed to be so. Mock v. Mock, supra; Succession of Mitchell, 323 So.2d 451 (La.1975) [noting appellate decisions that "have been uniformly criticized for their inflexible, unrealistic and unjust application of the presumption of paternity to one born during an undissolved marriage, where the mates have long since been living separate and apart and where the mother has been living in stable union with another, who is the actual biological father of the children."]. Consequently, in an attempt to moderate the prevailing statutory and jurisprudential rules, on the recommendation of the Louisiana State Law Institute, the Legislature amended the Civil Code articles on paternity by Act 430 of 1976. Mock v. Mock, supra. These codal amendments made the "irrebuttable" presumption of Article 184 rebuttable. Id.; ⁴ Phillips v. Phillips, 467 So.2d 132 (La.App. 3d Cir.1985); In re Murray, 445 So.2d 21 (La.App. 5th Cir.1984), writ den., 447 So.2d 1079 (La.1984); see also Acts 1989, No. 790 amending LSA-C.C. arts. 187, 188. But the amendments did not alter the rule that only the husband or his heir may disavow paternity. LSA-C.C. arts. 187, 190.

Direct legislative policy decisions were not the only encroachments on the Article 184 presumption. Indirect attacks, from interest groups such as children entitled to the presumption of legitimacy, from the state, and from biological fathers, also made an impact. The first impeller, Warren v. Richard, 296 So.2d 813 (La.1974), introduced to Louisiana the notion of dual paternity and found Article 184's presumption did not preclude an illegitimate child from recovering for the wrongful death of her biological father though, at the same time, she was also the legitimate child of another man under the law. The jurisprudential trend which followed allowed legitimate children to establish their true parentage, notwithstanding the legal presumptions of LSA-C.C. art. 184, et seq. Griffin v....