Dripps v. Dripps

• Decision Date: 13 November 1978
• Docket Number: No. 62185,62185
• Citation: 366 So.2d 544
• Parties: Harold E. DRIPPS and Pearl Irene Dripps v. Maxie Ann DRIPPS.
• Court: Louisiana Supreme Court

Page 544

366 So.2d 544

Harold E. DRIPPS and Pearl Irene Dripps v. Maxie Ann DRIPPS.

No. 62185.

Supreme Court of Louisiana.

Nov. 13, 1978.

Concurring Opinion Jan. 26, 1979.

Camp, Carmouche, Palmer, Barsh & Hunter, J. A. Delafield, Lake Charles, for defendant-appellant.

Raggio, Farrar, Cappel & Chozen, Stephen A. Berniard, Jr., Lake Charles, for plaintiffs-appellees.

SUMMERS, Justice.

Walter Eugene Dripps and Maxie Ann Dripps were husband and wife. Two children were born of this union, Jason Harold and Jennifer Amanda. Walter Eugene Dripps died on March 11, 1975. In addition to his wife and the two minor children, he was survived by his father and mother, Harold E. and Pearl Irene Dripps.

At that time Section 572 of Title 9 of the Revised Statutes, ¹ insofar as pertinent here, provided that if one of the parties to a marriage died, and there were minor children of such a marriage, the parents of the deceased, without custody of the children, could have reasonable visitation rights to the children of the marriage during their minority, if the court in its discretion found that such visitation rights would be in the best interest of the children.

Relying upon this authority Harold E. and Pearl Irene Dripps, paternal grandparents of the minor children, filed a petition in the Calcasieu Parish District Court on June 1, 1977 seeking a judgment establishing reasonable visitation privileges with the minor children. A rule was issued commanding Maxie Ann Dripps to show cause why reasonable visitation privileges should not be granted to the paternal grandparents of the minor children.

Prior to a hearing on this rule, on July 1, 1977, Maxie Ann Dripps, the mother of the children, married James Kerney Sonnier. When the hearing was held on July 20, 1977 the mother agreed and stipulated that the grandparents would have certain visitation rights with the children. The agreement was incorporated into a judgment officially rendered by the trial judge on July 22, 1977.

Thereafter, on September 16, 1977, the District Court in St. Landry Parish approved the adoption of the minors Jason Harold and Jennifer Amanda Dripps by James Kerney Sonnier, and the court ordered that the names of the minors be changed to Jason Harold and Jennifer Amanda Sonnier.

Then, on October 24, 1977, James Kerney Sonnier and his wife, the former Maxie Ann Dripps, ruled the grandparents, Harold E. and Pearl Irene Dripps, into court in Calcasieu Parish to show cause why the visitation rights granted in the July 22, 1977 judgment should not be revoked as a result of Sonnier's marriage to Maxie Ann Dripps and by virtue of the fact that Sonnier became the adoptive father of the children subsequent to the decree granting visitation rights to the grandparents.

To support this position the Sonniers rely upon the authority of Article 214 of the Civil Code as it existed at the time. ² Insofar as pertinent here, the Article provides that the adopted person is considered for all purposes as the legitimate child and forced heir of the adoptive parent. The article further provides that if the adoptive parent is married to a blood parent of the adopted person, the relationship of the blood parent and blood relatives of the adopted person are unaffected by the adoption. Otherwise, upon adoption, the blood parent or parents and all other blood relatives of the adopted person are relieved of all their legal duties and divested of all of their legal rights with regard to the adopted person.

On March 3, 1978 the trial judge rendered judgment in favor of the grandparents, rejecting the demands of the Sonniers that visitation rights of the grandparents be revoked. The Sonniers appealed to the Third Circuit. While the case was pending there the trial judge filed written reasons for his judgment of March 3, 1978, in which he declared that Article 214 of the Civil Code was unconstitutional as applied in this case.

Upon receipt of the reasons assigned by the trial judge, the Sonniers moved that their appeal be transferred to this Court, the trial court having declared a law of this State unconstitutional. The motion to transfer was unopposed and the appeal was transferred to this Court on May 3, 1978 as required by Section 5(D) of Article V of the Constitution mandating that appeals shall be to the Supreme Court if a law or ordinance has been declared unconstitutional.

In the legislative session then in progress, Article 214 of the Civil Code was amended by Act 458 of 1978, ³ effective September 8, 1978. Article 214 was unchanged by the amendment except to provide that when the adoptive parent was not married to a blood parent of the adopted person, the blood parent or parents and all other blood relatives of the adopted person were relieved of all of their legal duties and divested of all their legal rights with regard to the adopted person, Except as provided in Section 572(B) of Title 9 of the Revised Statutes. In the same Act, Section 572 was amended by adding sub-section (B) as follows:

"Notwithstanding any provision of law to the contrary contained in Article 214 of the Louisiana Civil Code, in the event of an adoption, the natural parents of a deceased party to a marriage dissolved by death may have limited visitation rights to the minor child or children of the marriage dissolved by death; provided the natural parents of a deceased party prove that they have been unreasonably denied visitation rights and such limited visitation rights would be in the best interest of the minor child or children; and provided further, that the adoption takes place after the parent whose parents are seeking visitation rights is deceased. The court shall consider all relevant factors in reaching a conclusion, including without limitation psychological evaluation, and it may order an investigation by the Department of Health and Human Resources." (See footnote 3)

In substance the amendments are designed to provide that the natural parents of a deceased parent of minor children who have been adopted may have limited visitation rights under certain circumstances.

These amendments, if applicable to the facts of this case, would entitle the paternal grandparents in the case at bar to limited visitation rights, notwithstanding the fact that the children are considered for all purposes as the legitimate children of the adoptive father by the terms of Article 214 of the Civil Code, provided the grandparents were able to establish certain prerequisites set forth in Section 572(B).

The grandparents urge in their brief dated July 6, 1978, that the foregoing amendments, which at that time had been passed by the legislature but not yet signed by the Governor, are retroactively applicable to this case when enacted and promulgated. If signed by the Governor, they assert, the issues presented to this Court would become moot. According to the authorities they cite, these amendments are curative in character. As curative legislation these enactments are applicable to cases on appeal, even though the facts and circumstances in litigation were ruled upon in the trial court prior to passage of the amendments. As amended, according to the grandparents, Article 214 of the Civil Code and Section 572(B) of Title 9 of the Revised Statutes adopt the public policy arguments presented in their brief.

In support of the claim that the issues of this case are moot they cite the decisions of the Second Circuit in Jackson v. Jackson, 275 So.2d 456 (La.App. 1973) and Fullilove v. U.S. Casualty Co. of New York, 129 So.2d 816 (La.App. 1961). No answer to this contention is presented by the Sonniers. The issue thus presented stands at the threshold of this case.

In Jackson v. Jackson the Second Circuit considered a suit for reduction of alimony and support awarded to a wife and four minor children. The case was tried on May 4, 1971 and judgment was rendered on October 4, 1972, reducing the alimony and support awards. In the interim between the trial date and rendition of judgment, Article 37 of the Civil Code was amended to prescribe that persons of the age of eighteen were to be considered of full age of majority, fully emancipated and adults.

In its review the Court of Appeal held:

"The trial judge correctly applied the latest expression of the law to the case by basing his decision as to support for . . . (the children over eighteen) on the amendment to Article 37. Likewise, this court must decide this appeal by applying the law as it now exists and not on the basis of what the law may have been at the time of the trial of the case. It is the duty of an appellate court to adjudge a case before it in accordance with the law existing at the time of its own decision, even if it requires reversing a judgment that was entirely proper at the time of its rendition."

A similar conclusion was reached in Fullilove v. U.S. Casualty Co. of New York, where a constitutional amendment authorizing the legislature to waive the State's immunity from liability, as well as immunity from suit, operated retrospectively. Cf. Juneau v. City of Shreveport, 146 So.2d 245 (La.App. 1962) and Musgrove v. Calcasieu Parish Police Jury, 200 So.2d 344 (La.App. 1967).

In a 1946 decision in Allison v. Wideman, et al., 210 La. 314, 26 So.2d 826, this Court held that the suits of coproprietors of mineral rights in land were abated by the enactment of a statute providing that the liberative prescriptive period for adult parties owning jointly with minors, would not be extended beyond ten years because of joint ownership with minors. The adults had claimed the minerals for more than ten years and the land was therefore released from the mineral servitude. This holding effectively held that a law, which was changed during the pendency of a suit, could be applied by this court even though it involved the reversal of a trial court decision based upon the law which existed at the time of its decision.

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