96-0728 La.App. 4 Cir. 11/12/97, M.M.M. v. M.M.M.
| Decision Date | 12 November 1997 |
| Citation | 703 So.2d 730 |
| Parties | 96-0728 La.App. 4 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Richard A. Tonry, Michael C. Ginart, Jr., Kim C. Jones, Law Offices of Tonry & Ginart, Chalmette, for Plaintiff/Appellant.
Alvin P. Perry, Jr., Chalmette, for Defendant/Appellant.
Leonce J. Malus, III, Edward S. Bopp--A Law Corporation, Arabi, for Intervenor/Appellee.
Before KLEES, BYRNES, ARMSTRONG, JONES and MURRAY, JJ.
[96-0728 La.App. 4 Cir. 1] ARMSTRONG, Judge.
In this case, the biological father of a child, who is not and never has been married to the child's mother, and who is not the legal father of the child, seeks judicial recognition of his paternity, joint custody, and visitation. The mother and the child's legal father are divorced and custody of the child is the subject of a decree in their domestic action. The biological father brought this action as an intervention in the domestic proceeding of the mother and the legal father. Both the mother and the legal father oppose the biological father's action on the ground, among others, that it was brought untimely. 1
The trial court, among other things, recognized the biological paternity alleged and held that the biological father's action was not untimely. The mother and the legal father appeal the trial court's holding that the biological father's action was not untimely. They do not appeal the trial court's finding of biological paternity. We conclude that, because the biological father waited more than six [96-0728 La.App. 4 Cir. 2] years to bring his action, that his action was brought untimely and so we render judgment dismissing it.
The mother and the biological father met in October 1985. At that time the mother was married to and living with the legal father. The biological father also was married and was living with his wife. The mother and the biological father began a sexual relationship in March or April of 1986 which relationship continued for some years. In March 1988, the mother and the biological father found out that she was pregnant. At that time, the biological father urged the mother to have an abortion.
The biological father testified that, from the time he learned the mother was pregnant, he suspected that he was the father. The mother testified that the biological father was forceful in his assertion that he was the father because he knew that she, the mother, had not been intimate with her husband, the legal father, for a three week period during the time of the conception.
The child was born in December 1988. The biological father testified that he continued to see the mother, and the child, and was always suspicious that he was the child's father. A lifelong friend of the biological father testified that, during this period, the biological father told him of having a strong feeling that he was the father. The friend also testified that, beginning as early as 1991, there was an ongoing discussion of the biological father with him as to whether the biological father should go to court to establish his paternity.
In November 1992, the mother and the legal father began living separate and apart. The biological father also left his wife at that time. Because of divorce, custody and community property proceedings between the mother and the legal father, and at the request of the mother, the biological father stayed away for some [96-0728 La.App. 4 Cir. 3] time. However, in March 1993, with the domestic proceedings of the mother and the legal father still pending, but believing that the legal father was aware of the biological father's relationship with the mother, the biological father began to visit the child, although these visits were not known of by the legal father.
In April 1993, the mother, the biological father and the child had blood work done for a DNA paternity test. The test results were received by the mother and the biological father in June 1993 and confirmed the biological father's paternity. The legal father was not aware of the DNA test or its results.
The mother and the legal father were divorced in June, 1993. There was a child custody hearing in August 1993, the mother and the legal father were awarded joint custody, the mother was made the principal domiciliary parent, and the legal father was granted visitation.
In November 1993, the relationship between the mother and the biological father terminated. In January 1994, there was a meeting of the mother and the biological father at the office of the mother's attorney to discuss some arrangement as to the child. No agreement was reached.
In November 1994, the mother filed a petition for a temporary restraining order and injunctive relief against the biological father alleging that, in 1993 and 1994, he constantly had telephoned her, stalked her, verbally and physically attacked her and threatened her. A consent judgment was entered creating reciprocal injunctions directed to the mother and the biological father prohibiting harassment or contact between them. In December 1994, the biological father filed a petition in intervention in the domestic case between the mother and the legal father. The petition in intervention sought recognition of biological paternity, joint custody and visitation.
[96-0728 La.App. 4 Cir. 4] The biological father's action is of a type not provided for by the Civil Code, but recognized in the caselaw, and referred to as an "avowal action". Demery v. HANO, No. 96-CA-1024 (La.App. 4th Cir. 2/12/97), 689 So.2d 659, 666; Smith v. Dison, No. 95-CA-0198 (La.App. 4th Cir. 9/28/95), 662 So.2d 90, 94; Geen v. Geen, No. 95-985 (La.App. 3rd Cir. 12/27/95), 666 So.2d 1192, 1194, writ denied, 96-C-0201 (La.3/22/96), 669 So.2d 1224; Smith v. Jones, 566 So.2d 408, 413 (La.App. 1st Cir.), writ denied, 569 So.2d 981 (La.1990); Finnerty v. Boyett, 469 So.2d 287, 296 (La.App. 2nd Cir.1985). See also Smith v. Cole, 553 So.2d 847, 854 (La.1989).
The mother and the legal father, who argue that the biological father's action was brought untimely, concede that there is no prescription statute applicable. "[T]here is no statutory prescriptive period for [an] avowal action[.]" Smith v. Dison, 95-CA-0198 (La.App. 4th Cir. 9/28/95), 662 So.2d 90, 94 n. 2. Accord Putnam v. Mayeaux, 93-CA-1251 (La.App. 1st Cir. 11/10/94), 645 So.2d 1223, 1226-27 ().
However, the mother and the legal father point out that the caselaw recognizing avowal actions also requires that such actions be brought promptly. "A biological parent who knows of the existence of his biological child and who fails to assert his rights for a significant amount of time, cannot come forward later and assert paternity." Demery v. HANO, 96-CA-1024 (La.App. 4th Cir. 2/12/97), 689 So.2d 659, 666. "[A] biological father, who knows or has reason to know of the existence of his biological child and who fails to assert his right for a significant period of time, cannot later come forward and assert paternity." Smith v. Dison, No. 95-CA-0198 (La.App. 4th Cir. 9/28/95), 662 So.2d 90, 94 n. 2 (emphasis added). Accord Smith v. Jones, 566 So.2d at 415; Putnam, 645 [96-0728 La.App. 4 Cir. 5] So.2d at 1225-26; Geen, 666 So.2d at 1194. "For obvious reasons, the greater the period of time which elapses from the child's birth to the bringing of the action, the less favorably such an action should be viewed." Finnerty, 469 So.2d at 296.
The mother and the legal father, pointing out the obvious potential for trauma to the child from inserting a new "father" into the life of a child with an existing paternal relationship established for over six years, argue that the biological father's six year delay makes the doctrine of laches applicable in this case. We agree. Because the biological father's six year delay has caused prejudice in the form of potential harm to the child, the biological father's avowal action is barred by laches.
"The doctrine of laches is used to bar prosecution of stale and antiquated demands which would cause injustice if pursued." Bailey v. State of Louisiana, 623 So.2d 704, 706 (La.App. 4th Cir.1993). Accord Barnett v. Develle, 289 So.2d 129, 139 (La.1974).
It is difficult to state the elements of laches or to state a "test" for the application of laches. In general, since the applicability of laches is within the discretion of the court, each case rests upon its own particular set of circumstances. It is possible to say that laches has no application where there has been no delay in asserting the right. However, delay of time alone will not suffice, there must be other circumstances. Prime among the other circumstances most often mentioned in the jurisprudence are a prejudicial change of conditions occurring during the delay and reliance by the defendant upon the inaction of the plaintiff. Munson v. Martin, 249 La. 925, 192 So.2d 126 (1966); Labarre v. Rateau, (210 La. 34, 26 So.2d 279), supra; Shirey v. Campbell, (La.App., 151 So.2d 557) supra; 30A C.J.S. Equity §§ 115--119.
Molero v. Bass, 322 So.2d 452, 454 (La.App. 4th Cir.1975), writ denied, 325 So.2d 609 (La.1976). Accord Fontenot v. State, Dept. of Public Safety, 341 So.2d 80 (La.App. 3rd Cir.1976) (). [96-0728 La.App. 4 Cir. 6] Despite the just-cited caselaw, and many similar decisions, there is some uncertainty as to whether the doctrine of laches continues to exist in Louisiana law. As will be discussed in detail below, one possible view is that laches can apply only in situations, such as the present one, in which there is no applicable prescription statute. The other possible view is that laches cannot, under any circumstances, be applied in Louisiana law.
The uncertainty has its origins in one of the Official Revision Comments to Article 3457 of the Civil Code. The text of Article 3457 itself states in its...
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