Gallo v. Gallo

• Decision Date: 03 December 2003
• Docket Number: No. 2003-C-0794.,2003-C-0794.
• Citation: 861 So.2d 168
• Parties: Michael Joseph GALLO v. Brenda Ann Conner GALLO.
• Court: Louisiana Supreme Court

861 So.2d 168

Michael Joseph GALLO v. Brenda Ann Conner GALLO.

No. 2003-C-0794.

Supreme Court of Louisiana.

December 3, 2003.

Ammon L. Miller, Jr., New Orleans, for Applicant.

Lee Vance Faulkner, Jr., Gretna, for Respondent.

WEIMER, Justice.

Upon initial inspection, this case presents an issue regarding reimbursement of money. Upon closer scrutiny, one finds issues which explore the underpinnings of the parent-and-child relationship. An ex-husband is asserting a right to recover monies he paid to his ex-wife for the support of a minor child, born during the marriage, who for many years he believed was his biological child. Years after the couple's divorce, it was determined another man was actually the biological father. The trial court denied the ex-husband's claim for reimbursement from his ex-wife. Reversing, the court of appeal awarded the ex-husband reimbursement for the child support paid to the ex-wife. For the reasons that follow, we reverse the court of appeal's ruling and deny the ex-husband's demand for reimbursement.

FACTS AND PROCEDURE

Michael Gallo and Brenda Ann Conner Gallo were married in 1978 and divorced in 1992. Three children were born during the course of the marriage; the youngest, M.L.G., was born April 27, 1985. After the Gallos separated in 1991, the children resided with Mr. Gallo in the family residence.

Numerous procedural matters ensued, generating pleadings and/or documents, which were filed in No. 92-8740 consolidated with No. 92-8972 in the Civil District Court for the Parish of Orleans and which now constitute the record before us. By judgment dated October 6, 1993, Ms. Gallo was ordered to pay $676.00¹ monthly to Mr. Gallo for the support of the three children, but she was to receive a credit for the tuition she paid directly to the school for M.L.G.

In March of 1995, Ms. Gallo petitioned the court for custody of the three children or, according to the pleading, "at least" custody of M.L.G. Mr. Gallo opposed the change, filing a "Memorandum" in which he made several allegations of Ms. Gallo's failures at parenting and of the "stability" established between himself and the three daughters after the mother had left them. He claimed that as their father, he was the only person who had provided the daughters with a "consistent, dominant presence in their lives." Despite his initial opposition to the change in custody, the Gallos entered into a consent judgment in which provisional custody of M.L.G. was awarded to Ms. Gallo and the parties agreed to attend seminars on parenting skills and communication skills for divorcing couples.

The next year, Ms. Gallo moved for termination of the child support she had previously been ordered to pay, alleging the two older daughters were then 19 and 18 years of age. Judgment terminating her child support obligations was rendered September 20, 1996.

Later, Ms. Gallo filed a rule to show cause why Mr. Gallo should not be ordered to pay child support for M.L.G. The issue was eventually resolved by a May 22, 1998 consent judgment establishing Mr. Gallo's child support obligations.

Mr. Gallo's "Petition to Disavow Paternity" was filed in September 1998, naming Ms. Gallo and the minor, M.L.G., as defendants. The petition alleges that Mr. Gallo is "not the father of [M.L.G.], notwithstanding the fact that the parties were married at the time of her birth.... Petitioner was led to believe that the child ... is his child and erroneously believed the child to be his child." The petitioner requested that an attorney be appointed to represent the minor so that service could be made and the action prosecuted contradictorily against this attorney. An attorney was appointed by the court, but neither he nor counsel for Ms. Gallo filed an answer to the "Petition to Disavow Paternity."

The next pleading of significance is a motion to compel paternity blood testing. A hearing was held at which counsel for Mr. Gallo, counsel for Ms. Gallo, and appointed counsel for M.L.G. appeared. On July 13, 2000, a judgment was rendered ordering Ms. Gallo and M.L.G. to submit to blood and tissue tests by appointed experts to determine inherited characteristics.

Filed into the record on September 19, 2000, is a notarized form entitled, "Louisiana Vital Records Registry Three Party Acknowledgement [sic] of Paternity (Non-hospital) Legitimate Child." The form lists Ms. Gallo as the mother of the registrant and Mr. Gallo as the "legal presumptive father." Joseph Nelson is listed as the biological father. The form states that those three persons agree that the name of the father on the birth certificate shall be changed to the name of the biological father and that the child's name remain the same. The form contains the signatures of Mr. Gallo, Ms. Gallo, Mr. Nelson, two witnesses, and a notary.

On September 20, 2000, the trial court signed what is entitled a "judgment" stating that "this matter" had been heard that date. This judgment reflects that counsel for Mr. Gallo and counsel for Ms. Gallo were present; there is no indication of the presence of counsel who had been appointed to represent M.L.G. The judgment states that the court considered the three-party acknowledgment of paternity² and ordered that Michael Gallo is deemed not to be the biological father of M.L.G. The judgment also relieved Mr. Gallo of his legal obligation to pay for support of the minor child. The judgment does not mention disavowal or Mr. Gallo's status as legal presumptive father. This judgment was not appealed.

In December 2000, Mr. Gallo filed a rule to show cause why Ms. Gallo should not be required to reimburse a total of $22,125.00 he had paid in child support for M.L.G., plus costs of health insurance paid by him, the costs of paternity testing, and attorney fees. Counsel for Ms. Gallo filed an "Opposition" to Mr. Gallo's demands for reimbursement which points out that Mr. Gallo never disavowed M.L.G.; there is no judgment of disavowel in the record. Further, Mr. Gallo agreed to pay the child support in a consent judgment. On October 26, 2001, the trial court signed a judgment denying Mr. Gallo's request for reimbursement of the child support he had paid; however, the judgment ordered Ms. Gallo to pay $500.00 in attorney fees and $300.00 for paternity tests. Counsel for Ms. Gallo filed a notice of intent to apply for a supervisory writ for review of the awards of attorney fees and testing costs.³ Counsel for Mr. Gallo filed a notice of intent to appeal the denial of the child support reimbursement.

The court of appeal reversed the trial court's denial of reimbursement from the mother, finding no prohibition in the law of such reimbursement once an "alleged" father is proven not to be the father of the child. The court of appeal noted the matter was submitted on a brief from Mr. Gallo only.⁴ Although the appellate court opinion noted Mr. Gallo sought to disavow paternity of his youngest daughter on September 4, 1998, the opinion makes no further mention of the action to disavow or the disposition or lack of disposition of that issue. The court of appeal decreed "the judgment of the district court denying Michael Gallo's claim for reimbursement in the amount of $22,125⁵ for child support and medical payments is hereby reversed." Gallo v. Gallo, 02-0575, p. 3 (La.App. 4 Cir. 2/19/03), 840 So.2d 1223, 1224.

Upon application by Ms. Gallo, this court granted a writ. Gallo v. Gallo, 03-0794 (La.6/6/03), 845 So.2d 1074.

DISCUSSION

The issue in this case is not whether the law prohibits reimbursement of the child support payments, as the court of appeal indicated, but whether the law allows reimbursement. The question calls for consideration of how the legislature and the courts have dealt with the concepts of child support in light of fluctuating mores and trends in family law. See, T.D. v. M.M.M., 98-0167, p. 4 (Knoll, Justice, concurring) (La.3/2/99), 730 So.2d 873, 878-879; see also, LSA-R.S. 9:305, quoted infra. The historical background of child support principles is explained in CHRISTOPHER L. BLAKESLEY, LOUISIANA FAMILY LAW § 16.02 at 16-2, 16-3 (Louisiana Civil Code Series Issue 1, 1996):

Louisiana's Civil Law tradition,[⁶] from its French and Spanish beginnings, provided for the parental obligation of child support. The Common Law did not have such an auspicious beginning. The Elizabethan Poor Laws in England during the 16th century were the initial weak and ulteriorly motivated attempt to make the father pay the parish ... for child support given his child.... Louisiana's and continental Codes influenced child support legislation in the rest of the United States. [Original footnotes omitted.]

"The sources of law are legislation and custom." LSA-C.C. art 1. In Louisiana, as in all codified systems, legislation is the superior source of law. LSA-C.C. art. 1, cmts. (a) and (c). Legislation cannot be abrogated by custom. LSA-C.C. art. 3. Accordingly, the starting point of our analysis is with the codal articles to determine the status of the parties and their reciprocal rights and obligations.

"The husband of the mother is presumed to be the father of all children born or conceived during the marriage." LSA-C.C. art. 184.⁷ "A suit for disavowal of paternity must be filed within one year⁸ after the husband learned or should have learned of the birth of the child; but, if the husband for reasons beyond his control is not able to file suit timely, then the time for filing suit shall be suspended during the period of such inability." LSA-C.C. art. 189. The policy embodied in the restrictive provisions of the Louisiana Civil Code dealing with the action to disavow is to protect innocent children, born during marriage, against scandalous attacks upon their paternity by the husband of the mother, who may be seeking to avoid paternal obligations to the child. Williams v. Williams, 230 La. 1, 7-8, 87 So.2d 707, 709 (1956).⁹ Thus, the traditional and historical position of...