Brannan v. Talbot

691 So. 2d 848, 1997 WL 175109
CourtLouisiana Court of Appeal
DecidedApril 2, 1997
Docket29692-CA
StatusPublished
Cited by10 cases

This text of 691 So. 2d 848 (Brannan v. Talbot) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brannan v. Talbot, 691 So. 2d 848, 1997 WL 175109 (La. Ct. App. 1997).

Opinion

691 So.2d 848 (1997)

Leon C. BRANNAN, Plaintiff-Appellee,
v.
Naida J. TALBOT, Defendant-Appellant.

No. 29692-CA.

Court of Appeal of Louisiana, Second Circuit.

April 2, 1997.
Rehearing Denied May 1, 1997.

*849 Mark O. Foster, Minden, for Defendant-Appellant.

T. Clayton Simmons, Charles R. Rowe, Bossier City, for Plaintiff-Appellee.

Before MARVIN, HIGHTOWER and GASKINS, JJ.

MARVIN, Chief Judge.

In this action by Leon Brannan, the exhusband and father, to disavow paternity, the adult daughter, Nadine Brannan, born in 1976, and her mother, now Mrs. Naida J. Talbott, appeal a preliminary injunction barring *850 them from continuing their efforts to collect past due child support. They also complain that the trial court denied their exceptions of prescription, no right of action, no cause of action and res judicata to Brannan's petition.

We affirm the denial of appellants' exceptions and find the temporary restraining order and preliminary injunction wrongly issued, reversing that part of the judgment and remanding for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Leon Brannan married Naida on January 3, 1963, producing one child, Nadine, who was born August 8, 1976. The divorce in Bossier Parish on July 18, 1986, ordered Brannan to pay $250 per month in child support. Both parties later married others. Brannan moved to Florida after the divorce. Mrs. Talbott instituted proceedings in Bossier Parish in 1988, seeking to enforce past due child support against Brannan "through the State of Florida."

According to this record and as shown by exhibits attached to the brief of appellants, the Circuit Court of Nassau County, FL, in Case No. 89-94-CA, styled Nadia J. Talbott vs. Leon C. Brannan, entered a judgment against Brannan on April 4, 1989, for the $250 monthly child support, plus $25 a month for the arrearage owed on the 1986 Bossier Parish child support judgment.

On July 28, 1993, in that same styled case and number, the unnamed petitioner (argued here as the State of Florida) instituted further child support proceedings in that Florida court against Brannan, alleging that his arrearage in child support was "$6,000 plus the prior amount of $2,280 for a total of $8,280.00 as of July 14, 1993." That petition prayed to have the court adjudge Brannan in contempt and punish him "accordingly."

On September 20, 1993, Brannan brought his action in Bossier Parish to disavow paternity. On October 25, 1994, appellants filed exceptions of no cause of action, no right of action and res judicata, asserting that Brannan's right to disavow paternity had lapsed pursuant to La.C.C. art. 189 and that the separation and divorce litigation rendered the issue of paternity res judicata. Brannan answered the exceptions on January 24,1995, alleging that, at the time of the divorce, he believed in good faith that Nadine Brannan was his child and the issue of paternity never came up because he "believed in good faith that his wife, Naida J. Talbott, was telling the truth."

The trial court ruled that the ten-year prescription of La.R.S. 9:305 applied, rather than the 180-day period of La.C.C. art. 189, and denied the exceptions. After granting supervisory writs, this court reversed the trial court's ruling, stating:

Plaintiff's action is a separately instituted, ordinary action to disavow paternity and is not ancillary to any child support proceeding. Lastrapes v. Willis, 93-1417 (La.App. 3rd Cir. 4/6/94), 635 So.2d 1281, writ denied. Thus plaintiff's action to disavow does not fall within the narrow exception provided by 1993 Act 32, Section 2. Therefore, the trial court erred in denying the exception of no cause of action.
Our emphasis

This court, however, further noted:

Although the plaintiff's suit to disavow paternity is a separately instituted ordinary action we note that child support proceedings may be pending against the plaintiff in Florida. If the plaintiff can amend his petition to show that the action to disavow paternity is ancillary to a child support proceeding instituted within 180 days of August 15, 1993, allowing for the suspension of time limits for filing this suit under LSA-R.S. 9:305, then he may do so.

Brannan responded on September 13, 1995, with a first supplemental and amending petition alleging that Mrs. Talbott was guilty of misrepresentation, fraud and deception, concealing the identity of Nadine's natural father and intentionally misleading him. Brannan also alleged that child support proceedings were instituted in Nassau County, Florida on July 28, 1993, within 180 days of the August 15, 1993 effective date of La.R.S. 9:305.

*851 On October 19, 1995, appellants again filed exceptions of prescription, res judicata, no cause of action and no right of action.

On April 15, 1996, without prior notice to appellants or their counsel, Brannan sought and obtained a temporary restraining order prohibiting appellants from "enforcement and prosecution of any and all matters arising from the marriage of Leon C. Brannan and Naida J. Talbott, including, but not limited to, child support enforcement and collection." On May 29, 1996, Appellants filed a motion to dissolve the TRO, seeking damages and attorney fees.

Following a hearing on May 30, 1996, the trial court granted the preliminary injunction and denied appellants' exceptions. Appellants' writ application to this court on June 14, 1996 was converted to this appeal.

DISCUSSION

Appellants' Exceptions

La.C.C. art. 189, unqualified before 1993, provides:

A suit for disavowal of paternity must be filed within one hundred eighty days after the husband learned or should have learned of the birth of the child; but, if the husband for reasons beyond his control is not able to file suit timely, then the time for filing suit shall be suspended during the period of such inability.

Cases had consistently held that the 180-day time limit in which to institute the action en desaveu is a period of peremption (forfeiture) rather than of prescription. The earlier cases likewise pronounced that allegations of a mother's misrepresentations concerning the paternity of a child failed to constitute "reasons beyond [a husband's or legal father's] control." See Pounds v. Schori, 377 So.2d 1195 (La.1979); Redmon v. Redmon, 391 So.2d 916 (La.App.2d Cir.1980); Burke v. Ledig, 94-2044 (La.App. 1st Cir. 5/5/95), 655 So.2d 546, writ denied; Mills v. Mills, 626 So.2d 1230 (La.App. 3d Cir.1993).

During its regular 1993 session, the Louisiana legislature qualified La.C.C. art. 189, by enacting Act No. 32, now La.R.S. 9:305, effective August 15, 1993. This statute provides:

Notwithstanding the provisions of Civil Code Art. 189 and for the sole purpose of determining the proper payor in child support cases, if the husband, or legal father who is presumed to be the father of the child, erroneously believed, because of misrepresentation, fraud, or deception by the mother, that he was the father of the child, then the time for filing suit for disavowal of paternity shall be suspended during the period of such erroneous belief or for ten years, whichever ends first.

Part two of that act provides:

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Bluebook (online)
691 So. 2d 848, 1997 WL 175109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brannan-v-talbot-lactapp-1997.