Kinnett v. Kinnett

• Decision Date: 07 July 2022
• Docket Number: 17-CA-625
• Citation: 345 So.3d 1122
• Parties: Karen Cohen KINNETT v. Jarred Brandon KINNETT
• Court: Court of Appeal of Louisiana — District of US

345 So.3d 1122

Karen Cohen KINNETT

v.Jarred Brandon KINNETT

NO. 17-CA-625

Court of Appeal of Louisiana, Fifth Circuit.

July 07, 2022

COUNSEL FOR PLAINTIFF/APPELLEE, KAREN COHEN KINNETT, Allison K. Nestor, Leonard L. Levenson, New Orleans

COUNSEL FOR DEFENDANT/APPELLEE, JARRED BRANDON KINNETT, Jacqueline F. Maloney, Metairie, Tracy G. Sheppard

COUNSEL FOR INTERVENOR/APPELLANT, KEITH EDWARD ANDREWS, Thomas A. Robichaux, Stephanie A. Fratello, Sharon L. Andrews, New Orleans, Desiree M. Valenti

COUNSEL FOR MINOR/APPELLEE, G. J. K., MINOR CHILD, Ramona G. Fernandez, Harvey and Tobie L. Tranchina, Supervising Attorneys Loyola University New Orleans, College of Law, Victoria Barczyk, Student Practitioner, Sarah Skidmore, Student Practitioner, Olivia Holm, Student Practitioner, Cynthia Traina, Student Practitioner

COUNSEL FOR AMICUS CURIAE, STATE OF LOUISIANA, DEPARTMENT OF JUSTICE, Honorable Jeffrey M. Landry, DavidJ. Smith, Jr., Jeffrey M. Wale, Chimene St. Amant

Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson

WICKER, J.

This matter is before this Court on remand from the Louisiana Supreme Court to consider biological father appellant, Keith Andrews’, challenge to the constitutionality of La. C.C. art. 198, an issue which this Court did not consider on appeal. Kinnett v. Kinnett , 20-01134 (La. 12/10/21), 332 So.3d 1149, 1157.

Upon review of the rulings appealed in connection with Mr. Andrews’ challenge to the constitutionality of La. C.C. art. 198, we find that the trial court abused its discretion in granting a pre-trial motion in limine and in excluding "any fact witness" from the trial on Mr. Andrews’ first supplemental petition challenging the constitutionality of La. C.C. art. 198. We find that the trial court's ruling impeded the discovery process and prevented Mr. Andrews from properly challenging the statute's constitutionality at trial. We therefore reverse the trial court's October 23, 2018 judgment granting the motion in limine , which affected the presentation of evidence, or lack thereof, permitted at trial, vacate the subsequent January 10, 2019 judgment holding La. C.C. art. 198 constitutional, and remand this matter to the trial court to allow the parties to conduct proper discovery and order the trial court to hold a new trial on Mr. Andrews’ supplemental petition, with factual and/or expert testimony and evidence, raising the issue of La. C.C. art. 198 ’s constitutionality.

Procedural History:

The preliminary procedural history is set forth in this Court's opinion in the first appeal in this case:

Ms. Kinnett commenced the instant litigation by filing for divorce on January 14, 2017. She sought joint custody with Mr. Kinnett of their daughter, B.A.K., but sole custody of her son, G.J.K. On January 27, 2017, Mr. Kinnett filed his Answer and Reconventional Demand disputing Ms. Kinnett's contention that awarding her sole custody of G.J.K. would be in the child's best interest, urging instead that joint custody be granted.

On February 10, 2017, Mr. Andrews filed a Petition in Intervention to Establish Paternity and to Obtain Custody of G.J.K. In his petition, Mr. Andrews alleged that Ms. Kinnett had concealed his possible paternity until December 9, 2016, and sought an order establishing paternity and an action to obtain custody.

On February 21, 2017, Mr. Kinnett answered Mr. Andrews’ intervention with Exceptions of No Cause and/or No Right of Action, Prescription, and Peremption, arguing that Mr. Andrews’ avowal action was preempted under Louisiana Civil Code art. 198 because he failed to file an action within one year of G.J.K.’s birth. On February 24, 2017, the court appointed the Loyola Law Clinic to represent the interests of the minor child. Ms. Kinnett first filed a memorandum opposing the exceptions on April 10, 2017, however, on May 31, 2017, she filed a second memorandum supporting the exceptions. On appeal, Ms. Kinnett adopted the arguments in Mr. Kinnett's appellee briefs.

At the initial April 12, 2017 hearing, the Domestic Commissioner denied the exceptions of no right of action and no cause of action as to paternity, and granted the exception of no cause of action as to custody. He also granted the exception of peremption, finding that Mr. Andrews should have known G.J.K. was his child given that he had "intimate contact" with Ms. Kinnett nine months prior to the child's birth. Mr. Andrews objected to the Commissioner's ruling, contending in pertinent part that the "time limitations in Civil Code article 198 are constitutionally invalid."

The parties tried the exceptions de novo before the district court on June 2, 2017. The district court judge ruled from the bench denying the exceptions of no cause of action and no right of action as to paternity, but granting the exceptions of no cause of action and no right of action as to custody and visitation. The judge further held that Mr. Andrews’ avowal action was preempted under Article 198 based on his finding that (a) Mr. Andrews had not proven "that the mother was actually in bad faith and intended to deceive," and (b) he had filed his avowal action more than a year from the time the judge determined he knew or should have known that he was G.J.K.’s father. The trial court declined to rule on the constitutionality of the statute and denied Mr. Andrews’ motion for additional time to notify the attorney general and further plead the constitutionality issue. Mr. Andrews appealed the June 2, 2017 judgment to this Court.

On March 23, 2018, this Court stayed this appeal and remanded the case to the trial court to allow Mr. Andrews the opportunity to amend his petition and appropriately challenge the constitutionality of Article 198. Kinnett v. Kinnett , 17-CA-625, per curiam, p. 4. On April 6, 2018, Mr. Andrews filed his First Supplemental and Amending Petition, formally challenging Article 198 ’s constitutionality, thereafter notifying the Louisiana Attorney General as required by law. The Law Clinic filed a memorandum in support of Mr. Andrews’ Supplemental and Amending Petition on June 4, 2018.

Kinnett v. Kinnett , 17-625 (La. App. 5 Cir. 8/6/20), 302 So.3d 157, 165, writ granted , 20-01134 (La. 2/9/21), 309 So.3d 735, reh'g denied , 20-01134 (La. 1/28/22) ––– So.3d ––––, 2022 WL 262973, and writ granted , 20-01143 (La. 2/9/21), 309 So.3d 735, reh'g denied , 20-01143 (La. 1/28/22) ––– So.3d ––––, 2022 WL 262971, and writ granted , 20-01156 (La. 2/9/21), 309 So.3d 738, reh'g denied , 20-01156 (La. 1/28/22) ––– So.3d ––––, 2022 WL 263066, and rev'd in part , 20-01134 (La. 12/10/21), 332 So.3d 1149.

On remand, Mr. Andrews filed a first supplemental and amended petition to properly raise a challenge to the constitutionality of La. C.C. art. 198. In the supplemental petition, Mr. Andrews further set forth factual allegations to demonstrate that he had "immediately assumed the role of G.J.K.’s biological father and began taking steps to support...and become involved in G.J.K.’s life." Mr. Andrews set forth the following allegations:

Upon learning that he is, in fact, the father of the minor child, G.J.K., Petitioner [sic] [actually Intervenor–Mr. Andrews] immediately began to establish a relationship with G.J.K. and sought to see G.J.K. as much as possible. However, this was made extremely difficult by the circumstances then existing between Petitioner [Ms. Kinnett] and Defendant [Mr. Kinnett], as Petitioner waited until mid-January of 2017 to tell Defendant he was not the father of G.J.K. After that, Petitioner and Defendant separated, and began sharing custody of G.J.K. and B.A.K., which limited the times that Intervenor could see G.J.K. through Petitioner. It was further complicated by the fact that Petitioner hid her relationship with Intervenor from Defendant and Defendant's family. Because B.A.K. was older, in the first grade, and could potentially tell Defendant of Intervenor's presence, Intervenor's time with G.J.K. was very limited at first. Subsequently, Petitioner retaliated against Intervenor on multiple occasions because Intervenor was forced to disclose details about their relationship in court filings and testimony. This ultimately culminated in Petitioner cutting off all contact between Intervenor and G.J.K. after the April 15, 2017 hearing in front of Commissioner Bailey, because she did not like the way he testified.

In his supplemental petition, Mr. Andrews further set forth allegations of the circumstances under which he was able to spend time with G.J.K. prior to Ms. Kinnett's cutting-off contact:

Despite these difficulties, Intervenor was still able to see G.J.K. and interact and bond with him sixteen times between December of 2016 and April of 2017:

1) December 10, 2016, Intervenor saw G.J.K. for the first time the day after he learned of the results of the sibling paternity test, when he met Petitioner and G.J.K. at Tracepoint, LLC in Mid-City to conduct the first paternity test.

2) December 20, 2016, Intervenor went to PJ's coffee on Maple St to meet Petitioner and G.J.K., and spent approximately one hour with him there.

3) January 7, 2017, Intervenor went to Audubon Park to meet Petitioner, G.J.K. and B.A.K. there and spent approximately two hours playing with G.J.K. and B.A.K.

4) January 10, 2017, Intervenor went to PJ's coffee on Maple St. to meet Petitioner and G.J.K. and spent approximately one hour with him there.

5) January 12, 2017, Intervenor met Petitioner, G.J.K., B.A.K. and Petitioner's father at Petitioner's sister's house and spent approximately three hours playing with G.J.K. there.

6) January 22, 2017, Intervenor babysat for G.J.K. for approximately four hours while Petitioner took B.A.K. to a movie with friends.

7) January 28, 2017, Intervenor met Petitioner, G.J.K., B.A.K. and Petitioner's father at Petitioner's new apartment for approximately one hour to help clean and to play with the kids.

8) January 30, 2017, Intervenor picked up G.J.K. and drove him to Tracepoint, LLC for the

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