Melancon v. Sonnier

• Decision Date: 30 October 1963
• Docket Number: No. 933,933
• Citation: 157 So.2d 577
• Parties: Cabel MELANCON, Jr., et al., Plaintiffs-Allellants, v. Mrs. Adies Melancon SONNIER, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 577

157 So.2d 577

Cabel MELANCON, Jr., et al., Plaintiffs-Allellants, v. Mrs. Adies Melancon SONNIER, Defendant-Appellee.

No. 933.

Court of Appeal of Louisiana, Third Circuit.

Oct. 30, 1963.

Rehearing Denied Dec. 3, 1963.

Jacob H. Morrison, New Orleans, for plaintiffs-appellants.

Dugas, Bertrand & Smith, by Lucien C. Bertrand, Jr., Lafayette, for defendant-appellee.

Before TATE, SAVOY, and HOOD, JJ.

TATE, Judge.

This is an action brought by various heirs of Cabel Melancon, Sr., to disavow his paternity of the defendant, Mrs. Adies Melancon Sonnier. The basis of the disavowal action is her alleged illegitimacy when born to Cabel Sr.'s former wife long after the spouses had voluntarily separated.

Alternatively, the plaintiff heirs also allege, and the defendant ('Adies') denies, that Cabel Jr., a plaintiff, is entitled to be accorded the rights of a legitimate child of a second marriage contracted in good faith by Cabel Sr.

The central issue of this suit involves the determination of who is the heir of Cabel Sr.: (a) Cabel Jr., a plaintiff, or (b) Adies, the defendant, or (c) both of them?

The trial court held that the present action to disavow the legitimacy of Adies was not timely brought and had prescribed. The court further denied the plaintiffs' alternative demand to have Cabel Jr. recognized as the good faith putative issue of Cabel Sr.'s second marriage, upon its finding that the second marriage was invalid. The effect of this judgment by the trial court is to recognize the defendant Adies Melancon Sonnier as the heir of Cabel Melancon, Sr.

The plaintiffs appeal.

Facts.

Cabel Sr. was married to the defendant Adies's mother ('Evella') in 1922. A legitimate child was born of this union in St. Martin Parish in November, 1925, although the child died seven months later.

Shortly thereafter, Cabel Sr. and Evella moved to New Orleans. There they separated, Evella returning to the Breaux Bridge-Henderson area of St. Martin Parish, while Cabel Sr. remained in New Orleans, which is some 170 miles from Breaux Bridge.

On October 24, 1927, Cabel Sr. filed suit in New Orleans for divorce from Evella. Service was obtained upon her in St. Martin Parish. Although a preliminary default was obtained, A final judgment of divorce was never entered decreeing the dissolution of the marriage of Cabel Sr. and Evella.

A daughter, Adies, (the defendant) was born to Evella on October 6, 1928, almost a year after Cabel Sr. had filed suit to divorce her. The notation on Adies's baptismal certificate is to the effect that her father was a man other than Cabel Sr.

According to the allegations of the plaintiffs' petition, Cabel Sr. was married in St. Bernard Parish to a second wife on April 29, 1928, of which union one child was born on October 5, 1929, namely, Cabel Jr., one of the plaintiffs.

Cabel Sr. died in 1952. This disavowal suit was filed in St. Martin Parish in 1961, the parish of Adies' residence. It was precipitated by the defendant Adies' claim to be recognized as Cabel Sr.'s heir, filed by her late in 1960 in the New Orleans succession proceedings of Cabel Sr.'s mother.

By the plaintiffs' appeal, they pose two primary questions: (1) Based upon the presumtion of legitimacy, is the defendant Adies Melancon Sonnier ('Adies') entitled to be recognized as the legitimate child of Cabel Sr., even though she was born after Cabel Sr. and her mother (his first wife) had separated?; (2) In view of the invalidity of Cabel Sr.'s second marriage, is Cabel Jr. nevertheless entitled to be recognized as the good faith putative issue of this second marriage?

1. Legitimacy of Adies, the Defendant.

The situation before us concerns a child born to a wife voluntarily separated from her husband, but from whom she has not been judicially separated or divorced.

In such instance, even though the wife may have been living with a man othe than her husband at about the time of conception or birth, nevertheless the child born is presumed to be the child of the undissolved marriage, subject to timely filed disavowal actions by the husband or his heirs. Succession of Verrett, 224 La. 461, 70 So.2d 89; cf. also, Succession of Saloy, 44 La.Ann. 433, 10 So. 872; Burrell v. Burrell, La.App. 1 Cir., 154 So.2d 103. (The same presumption does not obtain where a child is born three hundred days or more following a divorce or judicial separation. LSA-C.C. Arts. 187, 188; Singley v. Singley, La.App. 1 Cir., 140 So.2d 546.)

A very short prescriptive period is provided within which a husband (or his heirs, if he die before the time expires) must bring a suit to disavow his paternity of a child born to his wife; otherwise the action is forever barred, LSA-C.C. Arts. 191, 192. See, e.g., Kuhlman v. Kuhlman, 137 La. 263, 68 So. 604. Pertinently to this action, the husband has two months to file the disavowal action after he learns of the birth of the child to his wife, if said birth was concealed from him.

The trial court held that the present disavowal action had prescribed. We find it unnecessary, however, to discuss the contentions of the plaintiffs to the effect that the trial court erred in its assigned reasons for this holding; for, even if the plea of prescription is overruled, the plaintiffs have not produced the proof necessary to overcome the very strong presumption of the legitimacy of all children conceived during the existence of a valid marriage.

The husband is presumed to be the father of all children conceived during the existence of a marriage; even in the case of a voluntary separation of the spouses, cohabitation is always presumed. LSA-C.C. arts. 184, 188. However, pertinently to this action, (a) if cohabitation was physically impossible because of the remoteness of the husband from the wife, the usual presumption of paternity does not obtain, LSA-C.C. Art. 189; also (b), if the birth was concealed from the husband, he can disown a child as not his because of a proven adultery, LSA-C.C. Art. 185. Both of these grounds are urged by plaintiffs herein as causes for disavowal of the defendant Adies.

See Comment, 'Presumption of Legitimacy and the 'Action en Desaveu": Parts I and II, 13 La.Law Review 587 (1953); Parts III and IV, 14 La.Law Review 401 (1954)--expecially Part III, 'A Survey of the Louisiana Jurisprudence', at 14 La.L.Rev. 401 and following. See also Comment, 'Action en Desaveu--Challenging the Presumption of the Husband's Paternity', 23 La.L.Rev. 759 (1963).

A. Physical impossibility of cohabitation. (LSA-C.C. Art. 189).

At 14 La.L.Rev. 409, 'summarizing the jurisprudence', it is stated that 'in order to prove physical impossibility of cohabitation, the husband would have to show that the spouses were a great distance apart during the time of conception and also show the whereabouts of Both spouses at all times during that period.' The presumption of legitimacy of a child born during the marriage 'cannot be overcome except by the proof that the husband was so far away from the wife, when the child was conceived, that cohabitation was 'physically impossible", Feazel v. Feazel, 222 La. 113, 62 So.2d 119, 121.

In the present instance, the husband Cabel Sr. lived in New Orleans and his separated wife Evella in Henderson, some 170 miles away. The only testimony that he had not had access to his wife in Henderson in 1928, about the time the child Adies was conceived, was the testimony of his two half-brothers, teenagers at the time, to the effect that to their knowledge he had not left New Orleans then or afterwards and that they should have known of it since they were living with him.

Even if we assume that this testimony at the trial some 34 years later has some probative force--overlooking these witnesses' lack of knowledge of other incidents of Cabel Sr.'s life during this period of their youth (such as the birth and death of Cabel Sr.'s first child in 1925 and 1926)--, we note that the testimony of the one-time paramour of Evella, the reputed father of her daughter (the defendant Adies), is simply to the effect that at an unspecified time and dates and for an unspecified period they had 'took like that' and 'lived in the same house' without marrying and during this time she 'come and go'.

Thus the testimony does not prove that Evella did not visit Cabel Sr. in New Orleans, nor for that matter does the evidence that he lived in New Orleans and she some 170 miles away sufficiently prove the physical impossibility of access and cohabitation so as to satisfy the heavy burden placed upon a husband or his heirs seeking to prove illegitimacy on such ground. See law review comments above-cited; see, e.g., somewhat similar facts and holding in Vernon v. Vernon's Heirs, 6 La.Ann. 242 (1851) (husband, South Carolina; wife, Kentucky; two children born during seven years' separation).

B. Disavowal for adultery if birth concealed. (LSA-C.C. Art. 185).

Assuming (without deciding) that the birth of the child (Adies) sought to be disavowed was proven to have been concealed from the husband, the testimony of Evella's onetime paramour is the only evidence of adultery. That the defendant Adies may have been conceived of this adulterous relationship, is somewhat indicated by the circumstance that her baptismal certificate shows the name of this man as her father, although the record does not indicate from whom such information was obtained.

As stated, at the trial some 34 years after Adies' birth, the testimony of this paramour furnishes the only actual proof of an alleged adultery. While he admits that he lived with Evella for a period (during which time she 'come and go', he said), his and the other testimony in the record is completely lacking in any indication as to the alleged or approximate dates of this relationship, nor is there the slightest proof that this adulterous friendship occurred during the period that Adies was conceived or born in 1928.

The 1927 divorce suit by Cabel Sr. against Evella was grounded...