Pounds v. Schori
| Citation | 377 So.2d 1195 |
| Decision Date | 12 November 1979 |
| Docket Number | No. 64695,64695 |
| Parties | Janey Lynn POUNDS v. Richard Miles SCHORI. |
| Court | Louisiana Supreme Court |
Dennis R. Whalen, Baton Rouge, for defendant-applicant.
Frank P. Simoneaux, Breazeale, Sachse & Wilson, Baton Rouge, for plaintiff-respondent.
On application of defendant, Richard Miles Schori, we granted certiorari to review his complaint that the Court of Appeal, First Circuit, erroneously sustained judgment of the trial court dismissing applicant's suit to disavow paternity of the child Kristina Schori Pounds, born to plaintiff on July 22, 1976, during the existence of a legal marriage between these parties. Both lower courts held that the delay provided for institution of a disavowal action, is peremptive rather than prescriptive and that an action questioning paternity brought by Applicant in Oklahoma, during the peremptive period, did not interrupt running of the delay for bringing such a suit. We agree and affirm dismissal of defendant's action brought in this state after the delay period expired.
There is no factual dispute. On October 17, 1974, plaintiff obtained judgment of separation from bed and board from defendant to whom she was married on June 10, 1967. In December, 1975, defendant filed for final divorce on the ground that one year and 60 days elapsed from the date of plaintiff's separation decree. Plaintiff opposed the divorce action by pleading two brief periods of cohabitation between the parties in late December, 1975, and early February, 1976. No further proceedings were had in the divorce action. On July 22, 1976, plaintiff gave premature birth to the child Kristina, at which time both parties were residents of East Baton Rouge Parish, their matrimonial domicile. The child was born in East Baton Rouge Parish, in which parish defendant was present at the time of birth and of which birth defendant had knowledge. Approximately 12 days after the birth, defendant left East Baton Rouge Parish and moved to Oklahoma. In October, 1976, defendant filed suit in Oklahoma seeking a separation of maintenance and a determination of paternity of the child Kristina. In February, 1977, defendant amended his Oklahoma petition to request a final divorce, which was eventually granted on May 31, 1977. Defendant's disavowal action was dismissed by the Oklahoma court on defendant's (plaintiff herein) exception of lack of personal jurisdiction over defendant and the child. Meanwhile, prior to granting the Oklahoma divorce, plaintiff obtained judgment of separation in the Family Court, East Baton Rouge Parish. Plaintiff's Family Court judgment also awarded her child support in the sum of $300.00 monthly and $2,800.00 in past expenses. On June 22, 1976, almost one year after Kristina's birth, defendant filed a disavowal action in the Family Court, East Baton Rouge Parish.
The sole issue before us is the timeliness of the disavowal action brought by defendant in East Baton Rouge Parish. The following codal provisions, in effect at the time of the birth in question, are pertinent:
The legitimacy of the child born three hundred days after the separation from bed and board has been decreed, may be contested, unless it be proved that there had been cohabitation between the husband and wife since such decree, because it is always presumed that the parties have obeyed the sentence of separation.
We are aware that Act 430 of 1976, has made significant amendments to the foregoing codal articles. We note also that the operative facts in the matter before us, all transpired before the effective date of Act 430 of 1976, therefore these amendments are inapplicable herein unless they can be given retroactive effect.
It is well settled that remedial statutes may be given retrospective application. McCoy v. Hunter, 167 La. 1032, 120 So. 767 (La.1929).
Legislation which affects substantive rights may not be accorded retrospective application unless it contains language expressly indicative of legislative intent to make it retroactive, and then only when constitutional guarantees such as due process, vested rights and the inviolability of contracts will not be adversely affected thereby. Haas v. Haas, 182 La. 337, 162 So. 5 (La.1935); State ex. rel. Tulane Homestead Association v. Montgomery, 185 La. 777, 171 So. 28 (La.1936); Long v. Northeast Soil Conservation District of La., 226 La. 824, 77 So. 408 (La.1954).
Act 430 of 1976, affects substantive rights inasmuch as it affects the laws governing disavowal of persons born during legal marriage. The status of an individual born during marriage and entitled to the presumption of legitimacy, is a matter of substance of the utmost import considering it involves not only legitimacy but the right of inheritance. Not only does Act 430 of 1976, affect substantive rights, it is totally devoid of language indicative of legislative intent to make it retroactive. It follows that Act 430 of 1976, is without application herein. Consequently, we decide the case at bar solely on the law and jurisprudence in effect prior to the effective date of Act 430 of 1976.
We note, purely in passing, that Act 430 of 1976, retains the presumption of legitimacy formerly contained in Article 184. See La.C.C. Article 184, as amended by Act 430 of 1976. It is also noted that present La.C.C. articles governing actions of disavowal appear to make significant changes in the former codal provisions, particularly present Articles 186 and 187, but we express no opinion as to these changes in determining the instant matter.
The decisive issue herein is whether the time limit of six months provided in Article 191, above, is prescriptive or peremptive, and, if it is peremptive, did interruption thereof occur by the filing of defendant's disavowal action in Oklahoma? It is contended by defendant that the limitation is prescriptive and that running of the six month period was interrupted by the Oklahoma action. Plaintiff maintains the period is peremptive and admits of neither suspension nor interruption as held by the courts below.
Our jurisprudence has long recognized a major distinction between a statute of limitations (prescription) and a peremption. It has been repeatedly held that prescription bars the remedy sought to be enforced and terminates the right of access to the courts for enforcement of the existing right. A peremptive statute, however, totally destroys the previously existing right with the result that, upon expiration of the prescribed period, a cause of action or substantive right no longer exists to be enforced. Ashbey v. Ashbey, 41 La.Ann. 102, 5 So. 539 (La.1899); Guillory v. Avoyelles Railway Company, 104 La. 11, 28 So. 899 (La.1900); Brister v. Wray Dickinson Co., Inc., 183 La. 562, 164 So. 415 (La.1935); Succession of Pizzillo, 223 La. 328, 65 So.2d 783 (La.1953); Ancor v. Belden Concrete Products, Inc., 260 La. 372, 256 So.2d 122 (1971).
Recently, in Flowers, Inc. v. Rausch, La., 364 So.2d 928 (1978), we held that peremption is but a form or species of prescription possessing the differentiating characteristic that peremption does not admit of interruption or suspension. Flowers, above, involved cancellation of a state tax assessment for failure to reinscribe.
In Flowers, above, we recognized that peremption is a common law term that has infiltrated our jurisprudence. We noted also that peremption is, in reality, the civil law equivalent of "forfeiture". We so held on the basis of 28 G. Baudry-Lacantinerie & A. Tissier, Traite Theorique et Pratique, De droit...
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