651 So.2d 364 (La.App. 2 Cir. 1995), 26554, State in Interest of Muse v. Ross

• Date: 01 March 1995
• Docket Number: 26554-CA.
• Citation: 554 La.App. 2 Cir. 3/1/95,651 So.2d 364
• Parties: STATE of Louisiana In the Interest of Sonya R. MUSE, Plaintiff-Appellee, v. Joseph ROSS, Sr., Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 364

651 So.2d 364 (La.App. 2 Cir. 1995)

554 La.App. 2 Cir. 3/1/95

STATE of Louisiana In the Interest of Sonya R. MUSE,

Plaintiff-Appellee,

v.

Joseph ROSS, Sr., Defendant-Appellant.

No. 26554-CA.

Court of Appeals of Louisiana, Second Circuit.

March 1, 1995

E. Roland Charles, Monroe, for appellant.

A. Elaine Williams, State of La., Support Enforcement Services, Monroe, for appellee.

Before SEXTON and STEWART, JJ., and PRICE, J. Pro Tem.

PRICE, Judge Pro Tempore.

In this paternity action, the trial court found in favor of the State of Louisiana, decreeing appellant, Joseph Ross, Sr., to be the natural father of the minor child. Ross appealed the judgment suspensively, and the state timely answered the appeal seeking frivolous appeal damages. Ross's appeal subsequently was dismissed as abandoned for failure to file a timely brief, leaving before this Court only the issue of frivolous appeal damages. For the reasons which follow, we award the state $750 in frivolous appeal damages.

At trial, the mother testified that she became pregnant around November 1990, and that the child, who was born in August 1991, was a full-term baby. The mother further testified that she had sexual intercourse only with Joseph Ross, Sr. at the pertinent time. Three additional witnesses testified on behalf of the state, while only Mr. Ross testified on his behalf to deny paternity. Blood test results introduced at trial revealed a 99.99% probability of Ross's paternity with a combined paternity index of 86,006 to 1.

In January 1994, the trial court rendered a paternity judgment in favor of the State of Louisiana and against the defendant, Joseph Ross, Sr.. Mr. Ross took a suspensive appeal in February 1994, and after the appellate record lodged on April 11, 1994, the state filed a timely answer to the appeal seeking affirmance of the judgment and frivolous appeal damages.

Page 365

In June 1994, after appellant's brief was not filed within the time required by Rule 2-12.7 of the Uniform Rules for Louisiana Courts of Appeal, this Court sent a 30-day notice to appellant, directing him to file his brief immediately, and notifying him that his appeal would be dismissed if the brief was not filed within 30 days of June 16, 1994. On August 3, 1994, this Court received from appellant's counsel a motion for extension of time within which to file the appellate brief. This motion was made outside the 30-day period allowed by this Court, and was denied on August 4, 1994. That same day, this Court issued an order of partial dismissal, dismissing the appellant's portion of the appeal as abandoned.

However, this Court noted that the timely answer of the appellee, seeking damages for frivolous appeal, would not be dismissed. In so holding, this Court declined to follow Crochet v. Pritchard, 509 So.2d 501 (La.App. 3rd Cir.1987); Moity v. Guilliot, 466 So.2d 511 (La.App. 3rd Cir.1985); Edwards v. Lousteau Auto Sales, 424 So.2d 460 (La.App. 5th Cir.1982); and particularly, Weathers v. Herald Life Insurance Co., 284 So.2d 624 (La.App. 3rd Cir.1973), upon which the other aforementioned cases rely. The cited cases hold that an answer to an appeal may not be maintained independent from the appeal from which it springs.

The provisions of LSA-C.C.P. Art. 2133 state that the answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, an appellee may by answer demand modification, revision, or reversal of a judgment that did not allow or consider relief prayed for by an...