State ex rel. Wilson v. Wilson, 37,674-JAC.

• Decision Date: 24 September 2003
• Docket Number: No. 37,674-JAC.,37,674-JAC.
• Citation: 855 So.2d 913
• Parties: STATE of Louisiana in the interest of Carrie WILSON, Plaintiff-Appellee, v. Claude J. WILSON, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

855 So.2d 913

STATE of Louisiana in the interest of Carrie WILSON, Plaintiff-Appellee, v. Claude J. WILSON, Defendant-Appellant.

No. 37,674-JAC.

Court of Appeals of Louisiana, Second Circuit.

September 24, 2003.

Sam Henry, IV, for Appellant.

Jerry L. Jones, District Attorney, Brenda M. Howell, Assistant District Attorney, for Appellee. Before CARAWAY, DREW and TRAYLOR (Pro Tempore), JJ.

TRAYLOR, Judge Pro Tempore.

Claude Wilson appeals the judgment of the Fourth Judicial District Court, Parish of Ouachita, in favor of the State of Louisiana, through the Department of Social Services (the "State"), ordering him to pay child support for Carrie Wilson of whom he is the biological father. For the following reasons, we affirm.

FACTS

On June 24, 1990, Hollis Wilson ("Hollis") married Angela Wilson ("Angela"), who, at the time, was pregnant with a child she had conceived with Hollis's brother, Claude Wilson ("Claude"). Hollis was aware that Angela was pregnant when they married. On June 29, 1990, Carrie Wilson ("Carrie") was born. Hollis was listed on Carrie's birth certificate as her father, and, in fact, has always acted as her father. Hollis never sought to disavow his paternity of Carrie and always supported her—Claude never contributed to her support. As far as Carrie knew, Claude was her uncle and not her biological father. In 1999, Hollis and Angela divorced.

This appeal stems from the State's Rule for Child Support instituted against Claude for the support of Carrie.¹ Claude had previously acknowledged his paternity of Carrie, as well as his rights and responsibilities as her father.² Following the August 2002 hearing on the State's rule, the trial court determined that Claude's support obligation for Carrie would be $339.00 per month, and this appeal by Claude ensued.

DISCUSSION

On appeal, Claude argues that the trial court erred in ordering him to pay child support for Carrie, and alternatively, that the child support award, if not in error, was excessive. For the following reasons, we determine that Claude's assignments of error are without merit.

Louisiana has a long line of jurisprudence recognizing a scenario where a child might have a biological father as well as a legal presumptive father. The concept of "dual paternity" allows a child to seek support from the biological father notwithstanding that the child was conceived or born during the mother's marriage to another man, and therefore presumed to be the legitimate child of the marriage. State, Dept. of Social Services, Office of Family Support ex rel. Munson v. Washington, 32,550 (La.App.2d Cir.12/08/99), 747 So.2d 1245, citing Warren v. Richard, 296 So.2d 813 (La.1974); State, Dept. of Social Services, Office of Family Support v. Williams, 605 So.2d 7 (La.App. 2d Cir.1992).

Smith v. Cole, 553 So.2d 847 (La. 1989) is the seminal case regarding the duty of a biological father in cases where another person is presumed to be the legal father. In Smith, the court reasoned that:

The presumed father's acceptance of paternal responsibilities, either by intent or default, does not enure to the benefit of the biological father. It is the fact of biological paternity or maternity which obliges parents to nourish their children. The biological father does not escape his support obligations merely because others may share with him the responsibility. Biological fathers are civilly obligated for the support of their offspring. (Emphasis added).

Id. at 854.³ As we stated previously in State ex rel. Munson, "[T]he presumption of paternity ... is not intended to allow biological fathers to avoid their support obligation." Id. at 1247.

Additionally, La. R.S. 46:236.1(F)(1) empowers the State, under certain circumstances, as it did in the case sub judice, to file a suit to establish filiation and fix child support. Specifically, the statute authorizes the State to:

... take direct civil action, including actions to establish filiation against an alleged biological parent notwithstanding the existence of a legal presumption that another person is the parent of the child solely for the purpose of fulfilling its responsibility under this Section ... A separate and distinct cause of action in favor of the department is hereby created, and suits brought under this provision need not be ancillary to or dependent upon any other legal proceeding. (Emphasis added).

The fact that Claude has played no role in Carrie's life as her father is of no moment in the determination of whether he is responsible for her support. The only pertinent determination is whether Claude is Carrie's biological father, which the DNA testing conclusively bears out. So considering, in this case, it is apparent that Claude, as Carrie's biological father is responsible for at least some share of Carrie's support. See Jones v. Rodrigue, XXXX-XXXX, XXXX-XXXX (La.App. 1st Cir.11/03/00), 771 So.2d 275. On this point the trial court did not err.

Nor do we find that the trial court erred in its determination of the amount of support for which Claude was responsible. At the conclusion of the hearing and after determining that Claude was responsible for a share of Carrie's support, the trial court contemplated various means for calculating that share. Ultimately, the trial court combined the adjusted gross incomes of Claude and Hollis, and with that sum, along with Angela's income, utilized Louisiana's child support guidelines⁴ to derive the paternal support obligation of $519.88.⁵ To determine Claude's portion of support, the trial court compared Claude's and Hollis's percentage share of income, and determined that Claude was responsible for 65 percent of the paternal obligation, or $339.00 per month. We do not believe this amount to be excessive, as argued by Claude.

In considering the means for calculating Claude's support obligation, the trial court correctly noted that the actual calculation of child support in a dual paternity case is not addressed by the guidelines or in the jurisprudence. Notwithstanding the lack of statutory or jurisprudential guidance, we conclude that the trial court properly determined Claude's share of the paternal responsibility, and moreover, the calculation was performed in the spirit of the guidelines. Notably, La. R.S. 9:315.2 addresses the calculation of the basic child support obligations of mothers...