Cunningham v. Dicarlo

539 So. 2d 1315, 1989 La. App. LEXIS 465, 1989 WL 22903
CourtLouisiana Court of Appeal
DecidedMarch 15, 1989
DocketNo. 87-1359
StatusPublished
Cited by3 cases

This text of 539 So. 2d 1315 (Cunningham v. Dicarlo) 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
Cunningham v. Dicarlo, 539 So. 2d 1315, 1989 La. App. LEXIS 465, 1989 WL 22903 (La. Ct. App. 1989).

Opinion

LABORDE, Judge.

Plaintiff, Christine Cunningham, filed a paternity suit seeking to have defendant, [1316]*1316Robert Earl Dicarlo, declared the father of her minor child, Aimee Chantelle Cunningham. She also sought child support for Aimee. After a trial on the merits, the trial court found in favor of the plaintiff and ordered the defendant to pay child support in the amount of two hundred dollars ($200.00) per month retroactive to the date of the filing of the petition. Defendant appeals, claiming that plaintiff failed to prove by a preponderance of the evidence that he is the father. We affirm.

PACTS

Christine Cunningham testified that she became pregnant during the first week of November, 1974; and gave birth to a daughter on August 22, 1975. She also testified that she had a sexual relationship with the defendant from May, 1973, until February, 1975, when the defendant learned of her pregnancy. Plaintiff stated that she did not have sexual relations with any other man during the time she dated defendant. Several witnesses also testified that to their knowledge, Christine Cunningham did not date any other man during this period.

Robert Dicarlo admitted being sexually intimate with plaintiff in 1974 while he was a student at Northwestern State University, but claimed that he also dated other women during this period. He testified that he did not remember whether he was sexually intimate with plaintiff in November, 1974. However, he could not rule out the possibility that he was the child’s father. He testified as follows:

“Q Okay. So, you were sexually intimate with her?
A Yes.
Q In November of 1974?
A It could have been November.
Q So, if the child was conceived in November, 1974, you could be the father, is that correct?
A I guess that’s correct.”

Christine Cunningham’s aunt, Evelyn Landry, testified that she called Robert Dicarlo on the phone in January or February 1975, after learning that Christine was pregnant. Landry testified as follows:

“Q Did he talk about — was there any discussion of him being the father?
A I asked him.
Q You asked him what?
A If he thought — if he was the father.
Q And what did he say?
A He said, ‘Yes that wasn’t the problem.’ That the way he was and the way Chris was they couldn’t make it together. And then I agreed with him.”

Robert Dicarlo testified that he could not recall the telephone conversation with Evelyn Landry.

BURDEN OF PROOF

LSA-C.C. art. 209 establishes the burden of proof applicable in actions for filiation. It states in pertinent part:

“A. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged living parent by a preponderance of the evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.”

Since Christine Cunningham was unmarried and had never been married at the time of her daughter’s birth, Aimee is not entitled to legitimate filiation. Nor was Aimee legitimated or formally acknowledged under LSA-C.C. art. 203.1 Thus, the plaintiff must prove filiation by a preponderance of the evidence.

ACKNOWLEDGMENT

Defendant argues that the plaintiff did not produce evidence that he ac[1317]*1317knowledged the child either in public or in private. An informal acknowledgment must be of a continuous, habitual and unequivocal nature and of sufficient frequency that there can be little doubt that the alleged father truly believes himself to be the father of the child. IMC Exploration Co. v. Henderson, 419 So.2d 490, 508 (La.App. 2nd Cir.), writ denied, 428 So.2d 1149 (La.1982). We agree that defendant’s statement to Evelyn Landry does not constitute an informal acknowledgment. However, this finding does not prevent a determination of paternity. The means by which the plaintiff can meet her burden of proof has been expanded by the legislature so that informal acknowledgment is merely one and not the sole method of proving filiation. Official comment (b) to LSA-C.C. art. 209 expressly provides that proof of filiation may include, but is not limited to, informal acknowledgment. Furthermore, even though defendant’s statement does not constitute an informal acknowledgment, it is relevant to a consideration of whether plaintiff has satisfied her burden of proof.

BLOOD TESTING

Defendant also argues that Christine Cunningham’s failure to produce a court-appointed expert or to introduce into evidence the results of the court-ordered blood test, create a presumption that the production of that evidence or witness would be detrimental to her cause. The record reveals that on plaintiff’s request, the trial court ordered that blood tests be conducted on defendant pursuant to LSA-R.S. 9:396 of the Uniform Act on Blood Tests to Determine Paternity.

LSA-R.S. 9:396 states:

“Notwithstanding any other provision of law to the contrary, in any civil action in which paternity is a relevant fact, or in an action en desaveu, the court, upon its own initiative or upon request made by or on behalf of any person whose blood is involved, may or, upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to the drawing of blood samples and shall direct that inherited characteristics in the samples, including but not limited to blood and tissue type, be determined by appropriate testing procedures. If any party refuses to submit to such tests, the court may resolve the question of paternity against such party or enforce its order if the rights of others and the interests of justice so require.”

Pursuant to LSA-R.S. 9:397 2, the blood samples were taken at United Blood Services of Lafayette on February 17, 1987. However, after the blood testing was completed, plaintiff did not file a written report of the test results certified by sworn affidavit pursuant to LSA-R.S. 9:397.3.3 Nor [1318]*1318did plaintiff call the court appointed expert who conducted the blood tests to testify at trial.

We recognize that the failure to introduce the results at trial or to produce an available corroborating witness to testify raises the presumption that the testimony would have been adverse. This presumption is, however, only applicable when the failure to produce evidence is unexplained. Babineaux v. Black, 396 So.2d 584, 586 (La.App. 3d Cir.1981).4 Even if relevant in the instant case, this presumption is merely one factor that must be weighed along with other evidence. Schwab For & On Behalf of Schwab v. Galuszka, 463 So.2d 737, 742 (La.App. 4 Cir.), writ denied, 464 So.2d 1386 (La.1985), U.S. cert. den., 474 U.S. 803, 106 S.Ct. 37, 88 L.Ed.2d 30 (1985).

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Bluebook (online)
539 So. 2d 1315, 1989 La. App. LEXIS 465, 1989 WL 22903, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cunningham-v-dicarlo-lactapp-1989.