Jones v. Rodrigue

• Decision Date: 03 November 2000
• Docket Number: No. 00 CU 0899.,No. 00 CU 0900.,00 CU 0899.,00 CU 0900.
• Citation: 771 So.2d 275
• Parties: Jacinta J. JONES v. Roland RODRIGUE. Joseph Hamilton v. Jacinta J. Jones and the Minor, Anfernee Joseph Charles Hamilton.
• Court: Court of Appeal of Louisiana — District of US

Page 275

771 So.2d 275

Jacinta J. JONES v. Roland RODRIGUE.

Joseph Hamilton v. Jacinta J. Jones and the Minor, Anfernee Joseph Charles Hamilton.

No. 00 CU 0899.

No. 00 CU 0900.

Court of Appeal of Louisiana, First Circuit.

November 3, 2000.

Roland Rodrigue, Belle Rose, Defendant-Appellant in Proper Person.

Sidney A. Marchand, III, Donaldsonville, for Plaintiff-Appellee Jacinta J. Jones.

BEFORE: PARRO, GUIDRY, and SIMON, JJ.¹

GUIDRY, J.

Appellant Roland Rodrigue seeks review of the trial court's judgment ordering him to pay child support and denying him joint custody of the minor child, Anfernee Joseph Charles Hamilton (Anfernee). Based on the following review, we affirm in part, vacate in part and remand.

FACTS AND PROCEDURAL HISTORY

On February 24, 1997, Jacinta J. Jones gave birth to the minor child, Anfernee, at Riverwest Medical Center in Plaquemine, Louisiana. At the time of Anfernee's birth, it was believed that Joseph Hamilton, Ms. Jones' fiancé, was Anfernee's biological father. In accordance with this belief, Mr. Hamilton executed the In-Hospital Acknowledgment of Paternity form provided by Riverwest Medical Center and his name was listed on Anfernee's birth certificate as the father.

On May 2, 1997, appellant, Ms. Jones and Anfernee submitted to a paternity test, which revealed a 99.1 percent probability that appellant was the biological father of Anfernee. Thereafter, on November 26, 1997, appellant executed an acknowledgment of paternity declaring himself to be the natural father of Anfernee.

On April 23, 1998, Ms. Jones filed a "Petition To Establish Paternity, For Support, And For Name Change," against appellant, in which she requested that appellant be recognized as the natural father of Anfernee, that appellant be ordered to pay child support and provide medical coverage for the minor child, and that Anfernee's last name be changed to Rodrigue. In addition to the petition, Ms. Jones filed a request for admissions of fact, in which she sought to have appellant admit that he is the father of Anfernee, and the affidavit of Joseph Hamilton, in which he waived any rights he may have had as the alleged father of Anfernee and consented to "another man" being recognized as the father of Anfernee.

On May 6, 1998, appellant answered the petition denying any obligation to pay child support or provide medical coverage for the minor child, although appellant had already applied for and been granted authorization to add Anfernee to his medical coverage prior to the institution of Ms. Jones' suit. Further, appellant made the following requests in his answer: (1) that he be granted joint custody of Anfernee and visitation rights; (2) that he be allowed to claim Anfernee on his income tax returns in even-numbered years beginning in 1998; (3) that all costs of the proceedings be cast to Ms. Jones; and (4) in the event he is ordered to pay child support, that he be given a credit for the medical coverage provided and for sums paid for Anfernee's support prior to the rendition of the judgment.

On September 8, 1998, Ms. Jones filed a motion for summary judgment, and a hearing on the motion was set for September 29, 1998, but continued until November 10, 1998.² Following the hearing, the trial court denied the motion and instructed the parties to set the matter for trial.

On December 7, 1998, Mr. Hamilton filed a "Petition To Annul Acknowledgment or Declaration of Paternity," in which he averred that appellant was the biological parent of Anfernee. He further requested that the act of acknowledgment be annulled and that a curator be appointed by the court to represent the interests of Anfernee. Ms. Jones and Anfernee were named as defendants in Mr. Hamilton's petition.

A joint motion to transfer and to consolidate the petitions of Ms. Jones and Mr. Hamilton was consented to and filed by the parties on February 10, 1999, and an order granting the same was signed by the trial court on that date. A trial on the consolidated matters was held on July 12, 1999, and a judgment in favor of Ms. Jones was rendered on November 18, 1999. In the judgment, the trial court decreed that Anfernee's last name be changed to Rodrigue; that appellant be listed on the birth certificate as father; that the sole care, custody and control of Anfernee be awarded to Ms. Jones; that appellant pay child support in the amount of $461.00 per month, retroactive to the date of filing of the petition; and that appellant be granted reasonable visitation with the minor child.

Appellant filed a petition to devolutively appeal the November 18, 1999 judgment on January 3, 2000.

ASSIGNMENTS OF ERROR

In lodging this appeal, appellant expressed disagreement with several aspects of the district court's judgment. In his original brief, however, appellant failed to list any assignments or specifications of error, but did provide a listing in his brief in rebuttal. Since appellant is conducting this appeal in proper person, we will conduct our review by considering the assignments of error listed in his rebuttal brief. See Rader v. Department of Health and Hospitals, Office of Public Health, Engineering Services, 94-0763, p. 5 (La.App. 1st Cir.3/3/95), 652 So.2d 644, 646. Appellant alleges that the trial court erred in the following respects:

1. The 23rd Judicial District Court failed to recognize Mr. Joseph Hamilton as the presumptive/legal father of Anfernee Joseph Hamilton.

2. Mr. Hamilton did not file his "Petition to Annul Acknowledgment or Declaration of Paternity" until December 7, 1998, suit # 63,733. Therefore Mr. Rodrigue would not have been legally obligated to pay child support until the court had rendered a decision on that suit. Mr. Rodrigue's child support obligation would then have been effective on that date, which is November 16, 1999, if the court ruling remains effective.

3. On July 12, 1999, Mr. Rodrigue was led to believe, by his attorney, Benjamin Johnson, that the issues in question were whether or not Joseph Hamilton was obligated to pay child support, and the naming of his son. It was his understanding that once this issue was settled, Mr. Rodrigue would have an opportunity to present his case to the Honorable Judge Peytavin. During the proceedings, when Mr. Marchand was introducing documents in evidence, Mr. Rodrigue's attorney told him it did not matter because he would have a chance of presenting his case at a later date and make rebuttals at that time. (Mr. Rodrigue is aware this is not the fault of the court, however, it was an error that affected the decision rendered by the court).

4. The court based Mr. Rodrigue's child support on his income at the time of the trial and not his income at the time of the petitions and the months preceding.

5. Mr. Rodrigue was never notified of the final judgement (sic) by the 23rd Judicial District court or the Ascension Parish Clerk of Court. The court was aware Mr. Rodrigue was acting in proper person and supporting documents were submitted in Mr. Rodrigue's brief "WHY THE APPEAL SHOULD NOT BE DISMISSED." When Mr. Rodrigue visited the Ascension Parish's (sic) Clerk of Court in mid December of 1999, he received a copy of the Final Judgement (sic) Notice.

6. Mr. Rodrigue was not granted joint custody of his son, Anfernee Rodrigue.

7. And finally the courts (sic) did not look at the venue issue. Mr. Rodrigue and Ms. Jacinta Jones, both resided in Assumption Parish at the time the original petition was filed. Mr. Rodrigue was served the original subpoena by the Assumption Parish Sheriffs Department. The original petition was filed in Ascension Parish. Mr. Rodrigue, in his answer, to the original petition filed on May 6, 1998, indicated his address was 200 Ideal Street, Belle Rose, Louisiana 70341, which is located in Assumption Parish.

DISCUSSION

In his first assignment of error, appellant contends that the trial court erred in not finding that Mr. Hamilton was the presumed or legal father of Anfernee. The Louisiana Supreme Court expressly rejected this notion in Rousseve v. Jones, 97-1149 (La.12/2/97), 704 So.2d 229. In that case, the court determined that the plaintiff, who was only presumed to be the father of the illegitimate child in question based on his execution of an act of acknowledgment, was not and could not be considered the "legal father" within the contemplation of La. R.S. 9:305, because he was not of the class of persons for whom, by operation of law, that status is conferred. The court then delineated that class of persons as being composed of "the or former or subsequent husband" of the mother of a legitimate child. Rousseve, 97-1149 at 6, 704 So.2d at 232.

Similarly, Mr. Hamilton cannot be deemed the "legal father" of Anfernee. Mr. Hamilton has never been married to Ms. Jones, the mother of Anfernee. The sole basis for the presumption that he is Anfernee's father, as in Rousseve, stems from the act of acknowledgment Mr. Hamilton executed on the day Anfernee was born. The facts of this case clearly negate a finding that Mr. Hamilton is the legal father of Anfernee and therefore, the trial court did not err in refusing to designate Mr. Hamilton as such.

In his second, third and fourth assignments of error, appellant contests the award of child support decreed by the trial court. In his first argument, appellant states that the trial court erred in ordering that payment of child support be made retroactive to the date of Ms. Jones' filing of her petition rather than to the date of judgment. Specifically, appellant argues that he should not have been obligated to pay child support until Mr. Hamilton's acknowledgment of paternity had been annulled by the court. Also, in conjunction with that argument, appellant implies that it was error for the trial court to annul the acknowledgment of paternity executed by Mr. Hamilton. We shall address this issue first.

Consistently throughout his pleadings, appellant has argued that Mr. Hamilton was precluded...