STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
24-326
AMBER LEIGH FRANKLIN
VERSUS
CHRISTOPHER BRIAN SHOTWELL
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2023-4228 HONORABLE MITCHELL REDD, DISTRICT JUDGE
SHARON DARVILLE WILSON JUDGE
Court composed of Jonathan W. Perry, Sharon Darville Wilson, and Clayton Davis, Judges.
AFFIRMED. Jared W. Shumaker Devin Fontenot FONTENOT & SHUMAKER, LLC 2706 Hodges Street Lake Charles, LA 70601 (337) 508-2627 COUNSEL FOR PLAINTIFF/APPELLANT: Amber Leigh Franklin
Aaron Broussard BROUSSARD INJURY LAWYERS 1301 Common Street Lake Charles, LA 70601 Phone: 337-439-2450 COUNSEL FOR DEFENDANT/APPELLEE: Christopher Brian Shotwell
Kilburn S. Landry THE JOHNSON FIRM 1419 Ryan Street P.O. Box 849 Lake Charles, LA 70602 (337) 433-1414 COUNSEL FOR DEFENDANT/APPELLEE: Christopher Brian Shotwell WILSON, Judge.
Plaintiff, Amber Leigh Franklin, appeals the judgment of the trial court
granting Defendant’s, Christorpher Brian Shotwell, exception of peremption and
dismissing Ms. Franklin’s petition to revoke the acknowledgment of paternity with
prejudice. For the reasons expressed below, we affirm the judgment of the trial court.
I.
ISSUES
On appeal, Ms. Franklin asserts the following assignments of error:
(1) the trial court erred by failing to consider generally, Amber Leigh Franklin’s First Amended and Supplemental Petition to Revoke the Acknowledgement of Paternity, and the verified allegations made therein, and in the affidavit attached thereto;
(2) the trial court erred by failing to consider verified allegations of abuse, fraud and duress contained in Franklin’s First Amended and Supplemental Petition to Revoke the Acknowledgment of Paternity, and the affidavit attached thereto;
(3) the trial court erred when it found that Amber Leigh Franklin’s action to revoke the acknowledgment of paternity was perempted without basing such peremption on any Louisiana law, codal authority, statute, or jurisprudence constante which that sets forth a peremptive period for actions under La. R.S. 9:406(B);
(4) the trial court erred when it found that Amber Leigh Franklin’s imprescriptible action to revoke a notarial act of acknowledgment pursuant to La.R.S. 9:406(B) was perempted;
(5) the trial court erred by applying the peremptive period set forth in La.Civ.Code art. 195 to the facts of this case;
(6) the trial court erred when it found a presumption of paternity existed in favor of Christopher Brian Shotwell; (7) the trial court erred when it found that Christopher Brian Shotwell, the alleged father, could avail himself of a presumption of paternity purportedly created by the notarial act of acknowledgment in contravention of La.Civ.Code art. 196; and
(8) the trial court erred by addressing issues of estoppel and unclean hands at the hearing on exceptions without hearing testimony.
II.
FACTS AND PROCEDURAL HISTORY
On August 6, 2008, Ms. Franklin gave birth to a son, Aiden. In November of
2008, Ms. Franklin divorced her then husband, David Brunnabend. Ms. Franklin
gave birth to another son, Carter, in June 2011. In May of 2012, Ms. Franklin and
Mr. Shotwell were married. The couple later separated, and Mr. Shotwell filed a
petition for custody of Aiden and Carter on June 27, 2013. On May 21, 2014, Mr.
Shotwell was awarded joint custody of the children and designated the domiciliary
parent with Ms. Franklin to have supervised visitation with the children at the
discretion of Mr. Shotwell. On May 28, 2014, David Brunnabend signed an
acknowledgement of paternity affidavit certifying that he was married to Ms.
Franklin at the time of Aiden’s birth, but that he is not the biological father of the
child. On August 13, 2014, Mr. Shotwell and Ms. Franklin signed the same affidavit
certifying that they are the mother and father of Aiden and consenting to have Mr.
Shotwell listed as the father on Aiden’s birth certificate.
On November 12, 2022, Aiden was involved in an automobile-pedestrian
accident with a Westlake police vehicle while crossing the road. On December 15,
2022, Aiden died from his injuries. On May 2, 2023, Ms. Franklin filed a wrongful
death and survival action following Aiden’s death. Shortly thereafter, Mr. Shotwell
also filed a wrongful death and survival action. The matters were consolidated and
2 Ms. Franklin asserted that Mr. Shotwell is not a member of the class of persons set
forth in La.Civ.Code arts. 2315.1 and 2315.2. Those matters are currently stayed.
On November 8, 2023, Ms. Franklin filed a Petition to Revoke the
Acknowledgment of Paternity under the provisions of La.R.S. 9:406(B)(1) on the
grounds that Mr. Shotwell is not the biological father of Aiden. On January 9, 2024,
Mr. Shotwell filed Exceptions to Petition to Revoke Acknowledgement of Paternity
asserting the petition was barred by peremption, barred/estopped by the clean hands
rule, fails to name all indispensable parties to the action, and makes unauthorized
use of summary proceedings. On February 5, 2024, Ms. Franklin filed a First
Amended and Supplemental Petition to Revoke the Acknowledgement of Paternity,
adding David Brunnabend and DCFS as defendants and adding allegations of abuse
by Mr. Shotwell.
The exceptions were heard by the trial court on March 14, 2024. The trial
court ruled that the exceptions of failure to join indispensable parties and improper
use of summary proceedings were mooted by the filing of an amended petition. The
trial court granted the exception of peremption and dismissed the Petition to Revoke
Acknowledgement of Paternity with prejudice. All costs were assigned to Ms.
Franklin. The judgment was signed on March 27, 2024. Ms. Franklin now appeals
and requests that this court reverse the judgment granting the exception of
peremption and render judgment ordering Mr. Shotwell to submit to genetic testing.
III.
STANDARD OF REVIEW
The appellate standard of review for the granting of an exception of
peremption is determined by whether evidence was adduced at the hearing.
If evidence is introduced at the hearing on the peremptory exception of peremption, the district court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. Rando [v. Anco 3 Insulations, Inc., 08-1163 (La. 5/22/09),] 16 So.3d [1065] at 1082. If those findings are reasonable in light of the record reviewed in its entirety, an appellate court cannot reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. Lomont v. Bennett, 14-2483, p. 8 (La. 6/30/15), 172 So.3d 620, 627, cert. denied,
577 U.S. 1139, 136 S.Ct. 1167 (2016). In this case, evidence was introduced and
considered at the hearing of the exception. Accordingly, the manifest error standard
applies.
IV.
LAW AND DISCUSSION
The crux of Ms. Franklin’s appeal is whether the exception of peremption was
properly granted. On appeal, Ms. Franklin argues that an action pursuant to La.R.S.
9:406 is subject to neither prescription nor peremption. Louisiana Revised Statutes
9:406 provides, in pertinent part:
A. (1) A person who executed an authentic act of acknowledgment may, without cause, revoke it within sixty days of the execution of the authentic act of acknowledgment:
....
B. (1) If the notarial act of acknowledgment has not been revoked within sixty days in accordance with the provisions of Subsection A of this Section, a person who executed an authentic act of acknowledgment may petition the court to annul the acknowledgment only upon proof, by clear and convincing evidence, that such act was induced by fraud, duress, material mistake of fact or error, or that the person is not the biological parent of the child.
The legislative comments to the 2016 amendment of La. R.S. 9:406 state:
The 2016 revision repeals the two-year prescriptive period previously imposed for revocation of authentic acts of acknowledgment. That prescriptive period was illogical where the acknowledgment was executed by a man who was not the father of the child. The Louisiana Supreme Court has held the execution of such an acknowledgment to be an absolute nullity absent the requisite biological relationship supporting it. Succession of Robinson, 94-2229 (La. 5/22/95), 654 So. 2d 682. To speak of prescription when a father seeks a declaration of
4 absolute nullity is inappropriate, as absolute nullities are imprescriptible. La. C.C. art. 2032.
Ms. Franklin is correct that an action under La.R.S. 9:406 is imprescriptible,
as an absolute nullity is imprescriptible by nature. La.Civ.Code art. 2032. This court,
however, has previously found that an action under La.R.S. 9:406 may still be
perempted under other provisions of the law. In Wetta v. Wetta, 21-92 (La.App. 3
Cir. 6/2/21), 322 So.3d 365, writ denied, 21-940 (La. 10/19/21), 326 So.3d 255, this
court faced a similar situation involving peremption and La.R.S. 9:406. In that case,
Mr. Wetta executed an acknowledgement of paternity affidavit acknowledging the
paternity of his wife’s daughter despite knowing that he was not the biological father
of the child. After Mrs. Wetta filed for divorce and sought child support from Mr.
Wetta, Mr. Wetta filed a motion to revoke and annul the act of acknowledgement
and disavow paternity. The trial court granted Mrs. Wetta’s exception of peremption
and dismissed Mr. Wetta’s motion.
On appeal, this court reasoned that,
[T]he court is to consider pleadings not by the caption but by the body of the document in order to ascertain their substance and to do substantial justice to the parties. Alexander v. Blade, 20-337 (La.App. 3 Cir. 12/16/20), 310 So.3d 232. In Mr. Wetta’s petition he prays that the trial court issues a ruling “decreeing that Petitioner, is not the father of the minor child...” Mr. Wetta filed the petition after Mrs. Wetta moved for child support. It is clear to this court, as it was to the trial court, that Mr. Wetta did not simply intend to revoke or annul his act of acknowledgment but ultimately his goal was to disavow A.S. More importantly, Mr. Wetta cannot annul or revoke his act of acknowledgment without a resulting disavowal of paternity. As will be discussed below, revoking or annulling an acknowledgement of paternity affidavit would result in rebutting the presumption of paternity created by La. Civ. Code art 195. The legislature has provided laws as to how the presumption of paternity can be rebutted, which explicitly includes La.R.S. 9:406(B). Therefore, the trial court did not err in treating this matter as a disavowal action because ultimately that is the result being sought by Mr. Wetta’s petition.
Wetta, 322 so.3d. at 370–71.
5 Because the matter was treated as a disavowal action, the peremptive period
of La.Civ.Code art. 195 applied. Louisiana Civil Code Article 195 states:
A man who marries the mother of a child not filiated to another man and who, with the concurrence of the mother, acknowledges the child by authentic act is presumed to be the father of that child.
The husband may disavow paternity of the child as provided in Article 187. Revocation of the authentic act of acknowledgment alone is not sufficient to rebut the presumption of paternity created by this Article.
The action for disavowal is subject to a peremptive period of one hundred eighty days. This peremptive period commences to run from the day of the marriage or the acknowledgment, whichever occurs later.
Mr. Wetta’s petition was filed more than three years after he signed the act of
acknowledgment, well beyond the one hundred and eighty day peremptive period
and thus his right to disavow paternity was extinguished. This court held that, “Mr.
Wetta, despite being aware that he was not the biological parent, accepted the
responsibility of being a parent to A.S. and, as the legislature intended, La.Civ. Code
art. 195 prevents him from abandoning his commitment to A.S. at his own
convenience.” Wetta, 322 so.3d. at 374.
Ms. Franklin cites Kelley v. Kelley, 55,358 (La.App. 2 Cir. 12/20/23), 376
So.3d 320, for the proposition that an action under La.R.S. 9:406 is not subject to
peremption. In that case, Mr. Kelley acknowledged the two daughters of his wife
despite knowing that he was not the biological father. After the couple separated
and Mrs. Kelley sought an order of child support, Mr. Kelley filed a petition to
revoke his acknowledgement. Despite being factually similar to Wetta, the second
circuit declined to follow the rationale set forth therein, and held that,
Nonetheless, in keeping with the rationale set forth in Succession of Robinson[, 94-2229 (La. 5/22/95), 654 So. 2d 682], and reiterated in McKinley[ v. McKinley, 22-0132 (La. App. 1 Cir. 9/16/22), 352 So. 3d 1001] and Barras[ v. O'Rourke, 19-412 (La. App. 3 Cir. 12/18/19), 287 So. 3d 817], we find that Steven’s acknowledgments are absolute nullities, and as such, productive of no legal effects from their execution. 6 Kelley, 376 So.3d at 324
We find that the second circuit’s reliance on Succession of Robinson,
McKinley and Barras was misplaced. As noted in Judge Pitman’s dissent in the case,
Succession of Robinson . . . was decided by the Louisiana Supreme Court in 1995 and deals with forced heirship in a succession contest. It is not relevant to Article 195, which was enacted in 2005 and allows for acknowledgment of unfiliated children with the concurrence of their mother and creates a presumption of paternity that is perempted if not disavowed within 180 days. The majority is also incorrect in relying on McKinley v. McKinley, 22-0132 (La. App. 1 Cir. 9/16/22), 352 So. 3d 1001, and Barras v. O’Rourke, 19-412 (La. App. 3 Cir. 12/18/19), 287 So. 3d 817, which deal with the 2016 revision of La. R.S. 9:406. The case we are deciding was finished by peremption of the right to disavow in 2014, at the latest.
Kelley, 376 So.3d at 327.
Moreover, as the Kelley opinion comes out of the second circuit, under the
“law of the circuit” rule, we are not bound by the court’s decision just as they were
not bound to follow our decision in Wetta. Hagan v. Hagan, 10-1432 (La.App. 3
Cir. 7/27/11), 70 So.3d 1081. Our holding in Wetta, however, is the law of this
circuit and we see no reason not to follow that decision in the instant case. We find
this case to be a reverse to the situation in Wetta, and under the holding of Wetta,
Ms. Fraklin’s action is perempted.
Ms. Franklin argues that the factual scenarios in Wetta and this case are vastly
different. First, she argues that the presumption established by La.Civ.Code art. 195
does not apply in this case because Aiden was filiated to another man when the
acknowledgment was signed. When Aiden was born, Ms. Franklin was still married
to David Brunnabend and under La.Civ.Code art. 185, Mr. Brunnabend was
presumed to be the father of Aiden. However, three months prior to Mr. Shotwell
and Ms. Franklin signing the acknowledgment of paternity, Mr. Brunnabend signed
the affidavit certifying that he was married to the mother of the child at the time of
7 birth; however, he is not the biological father. Mr. Brunnabend’s signature on the
acknowledgement left Aiden not filiated to another man. Mr. Shotwell had married
the mother of the child, acknowledged the child by authentic act with the
concurrence of the mother, and at the time of the acknowledgement, Aiden was not
filiated to another man. Thus, all the requirements of La.Civ.Code art. 195 were met
by Mr. Shotwell, and he is the presumed father of Aiden.
The article clearly states that the husband may disavow paternity as provided
in La.Civ.Code art. 187, and “[r]evocation of the authentic act of acknowledgment
alone is not sufficient to rebut the presumption of paternity created by this Article.”
La.Civ.Code art. 195. “The action for disavowal is subject to a peremptive period
of one hundred eighty days. This peremptive period commences to run from the day
of the marriage or the acknowledgment, whichever occurs later.” Id. Ms. Franklin’s
petition was filed over nine years after the signing of the acknowledgment of
paternity, well after the one hundred and eighty day peremptive period provided in
La.Civ.Code art. 195. Accordingly, Ms. Franklin’s action is perempted.
Ms. Franklin also argues that this case is distinguishable from Wetta because
that case involved an acknowledged father seeking to revoke solely on the grounds
that he was not the biological father and this case involves a biological mother
seeking to revoke an acknowledgment on the grounds of fraud, duress and that Mr.
Shotwell is not the biological father. Ms. Franklin contends that La.Civ.Code art.
195 sets forth the time limitation for an acknowledged father’s disavowal action not
a mother’s action and it is therefore inapplicable in this case. We disagree. Just as
in Wetta, Ms. Franklin is not merely seeking to have the acknowledgement revoked,
but she is ultimately seeking to rebut the presumption of paternity for Mr. Shotwell.
Although the article contemplates a husband filing the action to disavow, the
peremptive period contained in the article would apply in the case of a disavowal 8 action brought by the mother. The article is clear that the presumption created by it
is only rebutted by a disavowal action brought within the stated peremptive period.
If we were to find that the peremptive period did not apply in this case because it
was brought by the mother, it would also follow that Ms. Franklin simply does not
have a right of action to rebut the presumption of paternity created by La.Civ.Code
art. 195, and as her petition to revoke is in essence seeking a disavowal, it would
have to be dismissed on those grounds.
As to Ms. Franklin’s claims that the acknowledgement should be revoked on
the grounds of fraud and duress in addition to the fact that Mr. Shotwell is not the
biological father, these additional grounds for revocation do not affect the
application of the peremptive period of La.Civ.Code art. 195. “Peremption is a
period of time fixed by law for the existence of a right. Unless timely exercised, the
right is extinguished upon the expiration of the peremptive period.” La.Civ.Code
art. 3458. Unlike prescription, “peremption may not be renounced, interrupted, or
suspended.” La.Civ.Code art. 3461. Regardless of the grounds for revocation, the
action is perempted because it was not brought within the appropriate time.
Ms. Franklin also argues that there are different public policy issues at play in
this case than in Wetta. She notes that in support of Wetta, Louisiana’s public policy
interest would not be served if acknowledged fathers were allowed to shirk their
child support obligations and other fatherly duties by revoking an acknowledgment
of paternity. She asserts that finding the matter perempted in her case would bolster
perpetrators of domestic abuse, and reward culprits of severe parental alienation, but
she does not explain how a finding of peremption would have such results.
We find that the public policy issues are similar in both cases. In Wetta, this
court held that Mr. Wetta, “accepted the responsibility of being a parent to A.S. and,
as the legislature intended, La. Civ. Code art. 195 prevents him from abandoning his 9 commitment to A.S. at his own convenience.” Wetta, 322 So.3d at 374. In the
present case, Ms. Franklin signed an acknowledgement certifying that Mr. Shotwell
was the father of Aiden and allowed Mr. Shotwell to act as father to Aiden for over
nine years following the signing. Ms. Franklin is only now contesting the paternity
of Mr. Shotwell to avoid sharing any wrongful death recovery from Aiden’s death
with Mr. Shotwell.
The legislative intent behind disavowal articles is to protect the child’s interest.
Louisiana’s public policy interests would not be served by allowing a father to accept
the responsibility of being a parent during the life of a child only to have paternity
stripped away at the hands of a mother for the sole purpose of financial gain for the
mother. Ms. Franklin never questioned Mr. Shotwell’s paternity over Aiden while
the child was alive, nor did she ever attempt to revoke the acknowledgement of
paternity. It is only now that a substantial amount of money is at stake that Ms.
Franklin comes forward with her claims. In explanation of her egregious delay in
seeking to have the acknowledgement revoked, Ms. Franklin stated on multiple
occasions that she had not done so before because there was no benefit in doing so.
This seems to directly contradict her claims of parental alienation by Mr. Shotwell.
If he was abusive and kept her children from her, it would appear very beneficial to
challenge Mr. Shotwell’s paternity over Aiden to have full custody restored to her.
Public policy considerations support following the holding in Wetta in the present
case.
Although we find Ms. Franklin’s action is perempted under La.Civ.Code art.
195 following the rationale of Wetta, the trial court did not state this as the grounds
for its finding of peremption. In its oral ruling, the trial court first notes the sixty-
day period established in La.R.S. 9:406 (A) in which a party to the acknowledgement
may revoke without any cause. The trial court then considers Ms. Franklin’s 10 allegations of fraud and duress but finds that “it does not clearly set forth anything
that makes me think that those acts are that -- were the basis for filing of the
acknowledgement of paternity. In fact, it seems like those acts would be the opposite
result of -- achieve the opposite result of that.” The trial court then addresses
revocation on the grounds that the father is not the biological father. The trial court
explains that “it seems like the intent of that would be for when the fact that the
person is not the biological parent, Mr. Shotwell in this case, is discovered later. . . .
It does not seem like it’s there for changing your mind. That’s the 60 days.” The
trial court goes on to say,
The part of the revocation statute dealing with finding out that the person is not the biological parent of the child is in the context of when you find out, not when you go into it with everybody maybe knowing, if I just assumed that for a second. So based on that, I’m going to grant the peremptory exception of peremption and assess the court costs to be [sic] petitioner in this matter. . . .
Louisiana Revised Statutes 9:406(B)(emphasis added) provides that after the
sixty-day period in section (A), a person may petition to annul the acknowledgment
“only upon proof, by clear and convincing evidence, that such act was induced by
fraud, duress, . . . or that the person is not the biological parent of the child.” The
trial court found that Ms. Franklin failed to provide sufficient proof that the
acknowledgment was induced by fraud or duress, thus she could not petition to annul
the acknowledgement on those grounds. The trial court reasons that subsection (B)
must be read in conjunction with subsection (A). Given that subsection (A) limits
the time period to revoke an act of acknowledgment without cause to a period of
sixty days, it follows that cause is required to revoke after that period. Simply
changing one’s mind is not a cause to revoke an acknowledgement.
Although subsection (B)(1) states that a person may petition to have the
acknowledgement annulled after sixty days if the person is not the biological parent, 11 to allow a parent who was aware of this fact when signing the acknowledgement to
annul would result in allowing a parent to annul an acknowledgement after the sixty
days simply because they changed their minds. This result would go against the
mandates of subsection (A). “[C]ourts are bound to give effect to all parts of a statute
and cannot give a statute an interpretation that makes any part superfluous or
meaningless, if that result can be avoided.” Hollingsworth v. City of Minden, 01-
2658, p. 5 (La. 6/21/02), 828 So.2d 514, 517.
The rules of statutory interpretation support the trial court’s conclusion that
subsection (B)(1) only allows an acknowledgment to be annulled when it is newly
discovered that the person is not the biological parent. By Ms. Franklin’s petition,
she was always aware that Mr. Shotwell was not the biological parent of Aiden and
she asserts that Ms. Shotwell was also aware of this fact. As such, she did not state
a claim under subsection (B)(1) and her action falls under subsection (A).
Accordingly, as subsection (A) provides a period of only sixty days to revoke the
acknowledgement and Ms. Franklin’s petition was filed over nine years later, her
action is perempted.
Concerning Ms. Franklin’s assignments of error that the trial court failed to
consider her First Amended and Supplemental Petition and attached affidavit, we
find that these assignments lack merit. Although the trial court noted that he had not
received the amended petition until the day of the hearing, he noted that he had read
it, and he references the allegations contained therein. Similarly, Ms. Franklin’s
assignment of error that the trial court erred in addressing issues of estoppel and
unclean hands without hearing testimony also lacks merit. The trial court only
mentioned estoppel to say that it was “trying to stay away from the estoppel
argument.”
12 V.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed.
Costs of this appeal are assessed to plaintiff/appellant, Amber Leigh Franklin.
AFFIRMED.