Pounds v. Schori
| Decision Date | 12 February 1979 |
| Docket Number | No. 12340,12340 |
| Citation | 369 So.2d 1090 |
| Parties | Janet Lynn POUNDS v. Richard Miles SCHORI. |
| Court | Court of Appeal of Louisiana — District of US |
Frank P. Simoneaux, Baton Rouge, of counsel for plaintiff-appellee Janet Lynn Pounds.
Dennis R. Whalen, Baton Rouge, of counsel for defendant-appellant Richard Miles Schori.
Before SARTAIN, CHIASSON and EDWARDS, JJ.
This is an appeal by Richard Miles Schori from a judgment of the trial court which dismissed his action En desaveu on a peremptory exception urging the objections of peremption and/or no cause of action.
On June 21, 1977, Schori filed a petition, styled "Petition for Disavowal of Paternity," seeking to disavow Kristina Pounds (Schori) as his child. The petition alleges that Schori and defendant, Janet Pounds Schori (also referred to as Janet Lynn Pounds), were married on June 10, 1967, and that a child named Kristina was born to the defendant, his wife, on July 22, 1976. Schori also alleges that he did not cohabit with the defendant at a time when she could have conceived the child, and that he believes that the child is not his. Schori further alleges that he filed a petition for separate maintenance and determination of paternity on October 29, 1976, in the State of Oklahoma, which suit for disavowal was subsequently dismissed due to lack of jurisdiction, and that he is entitled to a hearing on the question of paternity under the laws of Louisiana.
An attorney was appointed to represent the minor child. Subsequently, Mrs. Schori filed various exceptions including a peremptory exception urging the objections of peremption, no cause of action and/or prescription.
Schori opposed these objections, contending that the time limitation for a disavowal action is prescription and that the prescriptive period was interrupted under LSA-R.S. 9:5801 by the suit in Oklahoma combined with service on the defendant. Schori argues that this suit is therefore timely.
The trial court held that the time limitation governing the institution of the disavowal action is peremption rather than prescription, and that the peremptive period and the underlying cause of action had expired prior to the filing of the instant suit. Accordingly, the trial court sustained the peremptory exception and dismissed Schori's suit.
On appeal Schori urges anew the contentions raised in the trial court, namely: 1) the applicable time limitation is prescription; and 2) the prescriptive period was interrupted by service on the defendant under LSA-R.S. 9:5801.
Preliminarily, we note that at the time the child was born the delay during which an action for disavowal could be brought was fixed by LSA-C.C. art. 191, which was subsequently amended along with other codal articles in the section on disavowal by La.Acts 1976, No. 430, sec. 1 (effective October 1, 1976). The substance of article 191 is contained presently in LSA-C.C. art. 189. For the purposes of this suit however, the law prior to the amendment is applicable inasmuch as Act 430 of 1976 affects substantive rights, and its language does not require its retroactive operation or indicate that the Legislature intended for it to be applied other than prospectively. 1 O'Banion v. Allstate Insurance Co., 347 So.2d 878 (La.App. 3rd Cir. 1977); LSA-C.C. art. 8.
LSA-C.C. art. 191 provided:
"In all the cases above enumerated, where the presumption of paternity ceases, the husband of the mother, if he intends to dispute the legitimacy of the child, must do it within six months from the birth of the child, if he be in the parish where the child is born, or within six months after his return, if he be absent at that time, or within six months after the discovery of the fraud, if the birth of the child was concealed from him; or he shall be barred from making any objection to the legitimacy of such child."
We have not been cited nor have we found through our independent research any case in which the instant issue was presented for review. Schori points to two cases, Kuhlman v. Kuhlman, 137 La. 263, 68 So. 604 (1915) and Feltus v. Feltus, 210 So.2d 388 (La.App. 4th Cir. 1968), to support his contention that article 191 is prescription. He notes that the courts employed the term "prescription" in connection with article 191. However, the distinction between peremption and prescription was not at issue in either case, and we do not view either case as persuasive authority for labeling the time limitation as prescription. 2
The Supreme Court in Succession of Pizzillo, 223 La. 328, 65 So.2d 783, 786 (1953) stated:
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Gallo v. Gallo
...husband becomes aware of the wife's alleged fraud and allegedly learns that he is not the father of the child. See Pounds v. Schori, 369 So.2d 1090, 1092 (La.App. 1 Cir.1979),11 aff'd, 377 So.2d 1195; accord, Brugman v. Prejean, 288 So.2d 702, 704 (La.App. 3 Cir.1974.) Thus, being unaware o......
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Griffin v. Succession of Branch Through Smith
...fully to minors and that cannot be interrupted or suspended. Sewell v. Willcox, 5 Rob. 83, 17 La. 46 (1843); Pounds v. Schori; 369 So.2d 1090 (La.App. 1st Cir.), aff'd, 377 So.2d 1195 (La.1979); Cf. Succession of Saloy, 44 La.Ann. 433, 10 So. 872 (1892). See also, 12 Aubry & Rau, Droit Civi......
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Matherne v. Broussard
...and prescription was not at issue in any of those cases; thus, we do not view them as controlling authority. See Pounds v. Schori, 369 So.2d 1090, 1091 (La.App. 1 Cir.), aff'd., 377 So.2d 1195 (La.1979). Conversely, while this court has characterized the time period set forth in La. C.C. ar......
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Naquin v. Naquin
...could not be the father of the child the court granted the disavowal, overruling the plea of prescription. In Pounds v. Schori, 369 So.2d 1090 (La.App. 1st Cir. 1979), we recently held that LSA-C.C. Art. 191, prior to repeal by Act No. 430 of 1976, would be applied to the case of a child bo......