Evans v. Roberson

• Decision Date: 03 January 1933
• Docket Number: 31196
• Citation: 176 La. 280,145 So. 539
• Court: Louisiana Supreme Court
• Parties: EVANS v. ROBERSON et al

145 So. 539

176 La. 280

EVANS v. ROBERSON et al

No. 31196

Supreme Court of Louisiana

January 3, 1933

Appeal from Civil District Court, Parish of Orleans; William H Byrnes, Jr., Judge.

Suit by Mrs. Lucille Payne Evans, for the benefit of her minor children, against Mrs. Francis K. Roberson and another. From a judgment dismissing the suit, plaintiff appeals.

Affirmed.

S. J Tennant, Jr., of New Orleans, for appellant.

J. C Henriques, Sr., and J. C. Henriques, Jr., both of New Orleans, for appellee.

OPINION

LAND, J.

Mrs. Lucille Payne Evans has brought the present suit against Mrs. Francis K. Roberson and Vernon G. Roberson, the heirs and legatees of William E. Roberson, deceased, to have plaintiffs three minor children, in necessitous circumstances, recognized to be the illegitimate children of decedent, and as such entitled to alimony at the rate of $ 50 each per month for such period of time as the court may deem fit and proper.

Plaintiff alleges that her three minor children, Yvonne Evans Roberson, William Evans Roberson, and Alphonesine May Evans Roberson, were born March 17, 1924, July, 28, 1925, and October 19, 1927, respectively; that the father of these children, one William E. Roberson, was married at the time they were born; and that, while it was impossible for him to acknowledge them as his natural children, he did admit and declare that they were his offspring.

The following admissions are made by counsel for plaintiff and defendant:

"1. It is admitted that the plaintiff, Mrs. Lucille Payne Evans, mother of the children for whom alimony is sought in this petition, was married to Ralph W. Evans in September, 1921.

"2. It is further admitted that said Lucille Payne Evans and Ralph W. Evans have never been divorced or separated by a judgment of court; that said Ralph W. Evans is still alive; and, if put on the witness stand, would testify that he has resided in the City of New Orleans during the past six months.

"3. That the plaintiff, Lucille Payne Evans, and said children for whom alimony is claimed in this suit have resided in the City of New Orleans for the past six months.

"4. It is further admitted that these admissions are to be considered by the court as amending the petition filed by plaintiff herein." Tr. p. 9.

Mrs. Francis K. Roberson, the widow of William E. Roberson, deceased, excepted to plaintiff's petition on the ground that same disclosed no cause or right of action. From a judgment maintaining this exception and dismissing plaintiff's suit, she has appealed to this court.

Accepting the well-pleaded facts set forth in plaintiff's petition as true, for the purpose of disposing of the exception of no cause or right of action, it appears that the three children of plaintiff were born during the lifetime of her husband, Ralph W. Evans; that plaintiff has never been divorced or separated from him by a judgment of court; that plaintiff's husband was still alive at the date of the institution of the present suit; and that plaintiff, her three children, and her husband have resided in the city of New Orleans for six months before the present suit was brought.

In our opinion, the exception of no cause or right of action was properly maintained.

Article 184 of the Civil Code declares that: "The law considers the husband of the mother as the father of all children conceived during the marriage."

After providing in the articles that follow the specific instances in which the husband may disavow the paternity of the child it is declared in article 191 of the Code that: "In all the cases above enumerated, where the presumption of paternity ceases, the father, if he intends to dispute the legitimacy of the child, must do it within one month, if he be in the place where the...