Kinnett v. Kinnett

• Citation: 302 So.3d 157
• Decision Date: 06 August 2020
• Docket Number: NO. 17-CA-625,17-CA-625
• Parties: Karen Cohen KINNETT v. Jarred Brandon KINNETT
• Court: Court of Appeal of Louisiana (US)

302 So.3d 157

Karen Cohen KINNETT

v.Jarred Brandon KINNETT

NO. 17-CA-625

Court of Appeal of Louisiana, Fifth Circuit.

August 06, 2020

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

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

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

COUNSEL FOR MINOR/APPELLEE, G. J. K., MINOR CHILD, Ramona G. Fernandez, Supervising Attorney, Loyola University New Orleans, College of Law, Lindsay Dean, Student Practitioner, Ashley Fisher, Student Practitioner, Elizabeth Fox, Student Practitioner

COUNSEL FOR AMICUS CURIAE, STATE OF LOUISIANA, DEPARTMENT OF JUSTICE, Honorable Jeffrey M. Landry, David J. Smith, Jr., Jeffrey M. Wale

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

WICKER, J.

DNA evidence establishes a 99.99% probability that Appellant, Keith Andrews, is the biological father of the minor child G.J.K. Mr. Andrews intervened in divorce proceedings between Appellee, Karen Cohen Kinnett, the child's mother, and her husband, Appellee Jared Brandon Kinnett, to file an avowal action to establish the paternity of G.J.K. on February 10, 2017. At the time, G.J.K. was eighteen months old. Mr. Andrews appeals the judgment of the trial court sustaining Mr. Kinnett's exception of prescription or peremption, resulting in a dismissal of Mr. Andrews’ petition to establish paternity.

On March 23, 2018, this Court stayed this appeal and remanded the matter to the trial court to afford the parties the opportunity to properly address the constitutionality of Louisiana Civil Code art. 198 as raised by both Mr. Andrews and the Stuart H. Smith Law Clinic at Loyola Law School ("Law Clinic"), representing the child's interests. On remand, the trial court found that Mr. Andrews failed to meet his burden of proving the statute unconstitutional. Therefore, Mr. Andrews also appeals the trial court's January 10, 2019 judgment excluding his evidence on constitutionality and finding Louisiana Civil Code art. 198 to be constitutional.

For the reasons elucidated below, we find that the trial judge erred in his June 2, 2017 judgment finding that the avowal action was perempted. Therefore, we reverse the June 2, 2017 judgment of the trial court and remand this matter to the trial court for further proceedings consistent with this opinion. As we have resolved this case based upon our interpretation of Louisiana Civil Code art. 198, we decline to address the statute's constitutionality.

FACTS¹

Karen and Brandon Kinnett were married on January 24, 2009. On August 29, 2011, their daughter, B.A.K., was born. Thereafter, beginning in the late summer or fall of 2013, Ms. Kinnett engaged in an extramarital affair with Mr. Andrews. Mr. Andrews testified that the relationship consisted mostly of infrequent sexual encounters for several reasons. First, although Ms. Kinnett expressed unhappiness with her marriage, telling Mr. Andrews that she slept in her daughter's bedroom instead of with her husband, she was reluctant to leave the marriage.² Second, Mr. Andrews was preoccupied with opening a restaurant while simultaneously maintaining his solo law practice at the time the affair began. Finally, the necessity of keeping the relationship a secret combined with both parties’ busy schedules made meeting on a regular basis difficult.

Furthermore, soon after the affair with Ms. Kinnett began, Mr. Andrews started dating another woman and suggested to Ms. Kinnett that they end their affair. According to Mr. Andrews’ testimony, Ms. Kinnett did not want to end their relationship, but the already infrequent encounters became even more sporadic, occurring only once every two or three months.

The last intimate encounter between Mr. Andrews and Ms. Kinnett occurred on November 15, 2014. Mr. Andrews testified that the NuvaRing® birth control device Ms. Kinnett used throughout their relationship was present during the encounter. Ms. Kinnett testified to having ten years’ experience using that birth control method.

With the exception of two text messages between Ms. Kinnett and Mr. Andrews five days later, the parties did not communicate thereafter for over five months, until May 7, 2015. Ms. Kinnett was pregnant in May and testified that she knew then that Mr. Andrews was possibly her child's father. She did not, however, tell Mr. Andrews then that she was pregnant or that he might be the father. G.J.K. was born on August 5, 2015. Mr. Andrews testified that he made several attempts to contact Ms. Kinnett via text message in the months between November 2014 and September 1, 2015, without response.

On September 1, 2015, Mr. Andrews tried texting Ms. Kinnett again, and she responded. He testified that she apologized for not answering his texts and explained that she had had sexual relations with her husband one night, had gotten pregnant, and had had a baby "with" her husband. She further explained that she was staying in her marriage for the sake of the children. Mr. Andrews testified that, during the September 1st conversation, it crossed his mind that he could be the child's father, but he testified further that, at that point, he did not recall the date of his last sexual encounter with Ms. Kinnett. During that communication, Ms. Kinnett did not tell Mr. Andrews when G.J.K. had been born or how old he was then. Ms. Kinnett, while initially testifying, "I told him it was my husband's child," eventually restated, "I think the message was that I had had a baby and that I was trying to work on my marriage."³ She also testified that she believed her husband was her child's father, and that her belief was confirmed when the baby was born looking exactly like Mr. Kinnett.

After the September 1, 2015 text exchange, communication between Mr. Andrews and Ms. Kinnett was limited to occasional texts as friends.⁴ Fifteen months later, on December 9, 2016, Ms. Kinnett called Mr. Andrews by phone. During that conversation, she informed him that she had performed a sibling DNA test on her two children and learned that Mr. Kinnett was not G.J.K.’s biological father.

After hanging up, Ms. Kinnett immediately texted Mr. Andrews photographs of G.J.K. and wished him "Happy Father's Day." The two texted throughout that evening and into early the next morning. In one text Ms. Kinnett stated, "I'll never be able to ask your forgiveness enough. He's a precious guy. He's lucked out with you."

Ms. Kinnett testified that she conducted the sibling paternity test to "prove to Brandon that it was his child" after he remarked that he did not think G.J.K. looked like him.⁵ She also alleged that when she informed Mr. Andrews of his paternity, he told her that he had suspected that the child was his since first learning of the birth.

On December 10, 2016, Mr. Andrews met Ms. Kinnett and G.J.K. at a testing facility for a DNA paternity test. She called him thereafter on December 14th, to inform him that the test confirmed his biological paternity of G.J.K. On January 12, 2017, she informed Mr. Kinnett that he was not G.J.K.’s biological father, and on January 14, 2017, she filed for divorce. On January 30, 2017, Mr. Andrews, Ms. Kinnett, and G.J.K. all submitted for an additional DNA test. The February 2, 2017 results confirmed that Mr. Andrews is the child's biological father to a scientific certainty of 99.999999998%. Mr. Andrews attached a copy of the January 30th test results to his avowal petition filed eight days later on February 10, 2017.

PROCEDURAL HISTORY

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 perempted 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...