Durr v. Blue

• Citation: 454 So.2d 315
• Decision Date: 17 July 1984
• Docket Number: No. 83-716,83-716
• Parties: Raymond DURR, Et Al., Plaintiffs-Appellees, v. James BLUE, Et Al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana (US)

Page 315

454 So.2d 315

Raymond DURR, Et Al., Plaintiffs-Appellees, v. James BLUE, Et Al., Defendants-Appellants.

No. 83-716.

Court of Appeal of Louisiana Third Circuit.

July 17, 1984.

Harrington & Harrington, C. Rodney Harrington, Natchitoches, for defendant-appellant.

Sarah J. Campbell, Kisatchie Legal Service Corp., Natchitoches, for plaintiff-appellee.

Before DOMENGEAUX, FORET and STOKER, JJ.

STOKER, Judge.

The issues before us in this appeal concern the paternity of three minor children, the validity of an act of adoption by which defendants purported to adopt the three children, and the award of custody of the children to their alleged biological father. The trial court found that (1) Raymond Durr was the biological father of the three minor children, (2) the act of adoption by which James and Hazel Blue attempted to adopt the children was null and void, and (3) Raymond Durr is entitled to custody of the children. Defendants, James and Hazel Blue, appeal and we affirm.

FACTS

The three children who are the subjects of these actions are Sue Ann Durr, born August 21, 1972, Leslie Dianne Durr, born March 30, 1975, and Misty Raye Durr, born December 29, 1976. Each child's birth certificate shows Raymond Durr as her father. The children's mother is Donna Sue Ammons.

Ms. Ammons married Victor Anders on August 2, 1971, and lived with him only a short time. She met Raymond Durr in the early part of December of that same year, and they began living together as husband and wife. Ms. Ammons and Mr. Anders were not legally separated or divorced during the period she lived with Mr. Durr, which was from December of 1971 until January of 1977. During that time Mr. Durr and Ms. Ammons had brief separations; and when Mr. Durr was released from prison in December of 1976, after serving three months, they no longer lived together.

By documents dated July 11 and 12, 1977, Ms. Ammons and her legal husband, Victor Anders, transferred custody of the children to the Blues. One of the documents signed by Mr. Anders and Ms. Ammons states in part:

"Victor Lee Anders is the legal father of said children because the marriage has never been judicially separated or divorced. However, Victor Lee Anders is not the actual father of said children."

By documents dated November 8, 1978, Ms. Ammons stated that she wished to remove the children from the custody of the Blues and place them with Raymond Durr and his new wife, Doris. A portion of one of the documents reads as follows:

"Appearer [Ms. Ammons] does further, and by these presents, agree that RAYMOND DURR, who is the biological father of these children, and who has raised them from their birth, is and should be entitled to full custody and control of these children and Appearer does hereby consent and agree to their adoption by RAYMOND DURR and DORIS DURR at whatever time they choose."

The Blues apparently refused to relinquish custody of the girls to the Durrs, and the Durrs filed a writ of habeas corpus seeking custody of the girls on December 12, 1978. The Blues reconvened seeking custody, and Ms. Ammons joined the suit as a party-plaintiff on January 17, 1979, asking that custody be given to Raymond Durr. On January 31, 1979, all parties asked that the matter be held in abeyance until April 1, 1979, in order to give them an opportunity to reach a settlement.

On December 18, 1979, Mr. Durr filed a motion seeking visitation privileges, and a hearing was set for January 25, 1980. On January 24, 1980, the Blues obtained a continuance of the matter on the basis that Hazel Blue had just undergone surgery and could not appear. In a separate proceeding before another trial judge, the Blues filed a petition for adoption of the children on January 24, 1980, the same day the continuance was sought in the suit before us here. An affidavit of consent was filed in the adoption case signed by Ms. Ammons and Mr. Anders. A final decree of adoption was rendered on March 26, 1980. It is not disputed that Mr. Durr had no notice of these adoption proceedings.

On December 18, 1981, Raymond and Doris Durr filed a petition for a rule to show cause why they should not have visitation privileges. In response, the Blues filed an exception of no right or no cause of action claiming that Victor Anders was the legal father of the girls and they had become the adoptive parents. The matter was again continued on motion of the Blues and on December 29, 1982, after obtaining new counsel, the Durrs filed a motion seeking to have the adoption declared null and again seeking custody of the girls. The Blues again filed an exception of no right of action making the same allegations. Judgment was rendered in favor of the Durrs, as previously stated, and this appeal followed:

The matters before us for determination are:

1. Whether or not Raymond Durr is the biological father of Sue Ann, Leslie, and Misty,

2. Whether or not the adoption proceeding by the Blues is valid, and

3. Whether the Durrs are entitled to custody.

PATERNITY

In support of their exception of no right or cause of action, the Blues assert that because of the presumption established in LSA-C.C. art. 184 Raymond Durr cannot sue for custody or attack the adoption. Article 184 provides:

"The husband of the mother is presumed to be the father of all children born or conceived during the marriage."

It is not disputed that at the time of each child's birth Ms. Ammons was still married to Victor Anders, although physically separated from him. However, Louisiana courts have recognized that there can be cases in which children may enjoy dual paternity rights. Warren v. Richard, 296 So.2d 813 (La.1974) and Succession of Mitchell, 323 So.2d 451 (La.1975). These cases involve children whose fathers were presumed to be the husbands of their mothers, but who were in fact the biological children of other men. In Warren, the Court recognized the right of a child to recover for the wrongful death of its biological father, and in Mitchell the Court recognized that children have rights to the succession of their biological father. In both cases, there had been no disavowal action by the husband of the mother who was presumed to be the legal father of the children, thus leaving a situation in which the children could possibly enjoy dual paternity rights. In regard to this problem, the Court in Warren made these comments:

"The argument is made that this result will accord more rights to this child than are ordinarily accorded the legitimate child--that she will be able to recover for the death of her biological father as well as for the death of Albert Gray, because the law deems her his legitimate offspring. However, this concept is not unique to our law. It is specifically provided that the adopted child, upon his adoption, is not divested of his right to inherit from his blood parents while at the same time he inherits from the adoptive parent. La.Civil Code art. 214.

"We are not unmindful of the problems a logical extension of these holdings may create, such as a child in these circumstances recovering from both fathers for support and maintenance, or, conversely, requiring the child to support both fathers in a proper case. La.Civil Code arts. 227, 229. But we are influenced in this decision by the constitutional principles announced by the United States Supreme Court to which we adhere."

It can be seen from the above discussion that the presumption provided for in Article 184 has not been inflexibly construed so as to deny the rights of children whose fathers were in fact not the husbands of their mothers. Likewise, we do not believe that it should be construed so as to automatically deny the parental rights of a biological father, particularly in a case such as this where there is substantial proof of paternity, and there is no serious claim that the husband of the mother is the biological father of the children.

In an action to disavow, a husband who is presumed to be the father under Article 184 may succeed by proving by a preponderance of the evidence any facts which reasonably indicate that he is not the father. LSA-C.C. art. 187. This standard of proof was discussed in Ogea v. Ogea, 378 So.2d 984 (La.App. 3rd Cir.1979), writ denied, 379 So.2d 1104 (La.1980). This Court considered Articles 184 and 187 and determined that the presumed legal father could disavow only if he could present reliable scientific proof that he could not be the father, or prove that he lacked the opportunity to have intercourse with his wife at the probable time of conception. We do not think that such a strick standard should be applied to a man seeking to "avow" his biological children, but that he should be allowed to show that, more probably than not, he is the father. The failure of the presumed legal father to timely bring a disavowal action should not operate to deny the biological father his parental rights. Such a result would be a violation of the due process provisions of the United States and Louisiana Constitutions. (See our discussion of adoption, infra.)

Moreover, we should note by way of summary that the proof made by the biological father of his actual paternity does not operate to legally "bastardize" the children. They are legitimate in every legal sense because of the presumption provided by Article 184. There is no contest here between fathers. The contest is for custody only, and neither the legal father nor the mother (legal as well as biological) are claiming the custody. The "avowal" of paternity by plaintiff, Raymond Durr, does not operate as a disavowal on behalf of the legal father, Victor Anders. In the litigation represented by this lawsuit, Raymond Durr cannot become the legal father, and we know of no way he can become the legal father except through adoption procedures provided by law.

Counsel for the defendants expresses concern over the fact that (for purposes of this action) proof is allowed to show that the presumption of ...