Davis v. Lamont

481 So. 2d 643, 1985 La. App. LEXIS 10503
CourtLouisiana Court of Appeal
DecidedDecember 26, 1985
DocketNos. CA 84 1055, CA 84 1056
StatusPublished

This text of 481 So. 2d 643 (Davis v. Lamont) 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
Davis v. Lamont, 481 So. 2d 643, 1985 La. App. LEXIS 10503 (La. Ct. App. 1985).

Opinion

COLE, Judge.

This is an action to establish the filiation of two minors. The question presented is whether or not the filiation of both minors has been established at trial by clear and convincing evidence as required by La.Civ. Code art. 209 B.

This action was instituted on February 25, 1983, by petition seeking damages resulting from the death of Mr. MacArthur Davis, naming The Charter Oil Company of Jacksonville, Florida, Charles A. Lamont and The Insurance Company of North America as defendants. Initially, suit was filed by the brothers and sisters of the deceased alleging the deceased was never married and had neither adopted nor fathered any children. Thereafter, on May 12, 1983, Sarah Williams filed suit as natural tutrix of her minor children Latisha and Shalonda Williams alleging the minors were the natural children of the deceased and therefore entitled to damages resulting from his demise. On motion of the defendants these suits were consolidated by court order on June 13, 1983.1

The defendants filed a peremptory exception raising the objection of no right of action to the suit filed on behalf of the minor children.2 The exception alleged the minors were not the children of the deceased. Further, the exception alleged they failed to institute a proceeding to prove filiation within one year of the death of the alleged parent and were therefore precluded from such an action by La.Civ. Code art. 209 B.3 After a hearing on the exception, the trial court found “... the evidence is overwhelming that both Latisha Williams and Shalonda Williams are the surviving children and sole heirs of McAr-thur Davis; that they are the proper and only parties to maintain an action of wrongful death of their said father.” An appeal from this ruling of the trial court was taken by the brothers and sisters of the deceased. As well, the defendants filed an answer to the appeal alternatively seeking the judgment of the trial court be modified so as to recognize only Latisha Williams as the sole surviving heir of MacArthur Davis.

DISCUSSION

La.Civ.Code art. 209, as it appeared prior to amendment by Acts 1984, No. 810 § 1, provided:

[645]*645“Art. 209. Proof of filiation
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.
B. 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 deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in the Article.
C. The proceeding required by this Article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation.
D. The right to bring this proceeding is heritable.”4 (Underscoring ours.)

Construing art. 209 the court in Succession of Bartie, 472 So.2d 578, 582 (La.1985) stated,

“The burden of proof where a plaintiff must prove his case by ‘clear and convincing’ evidence is an intermediate one which requires that the fact be proven to a degree greater than that involved in proof by a ‘preponderance’ of the evidence but to a degree less than involved in proof ‘beyond a reasonable doubt.’ In other words, the existence of the disputed fact must be highly probable, that is, much more probable than its non-existence. Succession of Lyons, 452 So.2d 1161 (La.1984); LSB v. Edwins, 329 So.2d 437 (La.1976); Sanders v. Sanders, 222 La. 233, 62 So.2d 284 (1952); See also: McCormick on Evidence, Section 340(B) (2d Ed.1972). In this case the evidence overwhelmingly supports the finding that the plaintiffs are the illegitimate children of Henry Bartie.”

Similarly, the trial court found “the evidence is overwhelming” that the minors were the illegitimate children of MacArthur Davis. This is a factual finding which shall not be disturbed on review unless it is determined to be manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The examination by this court for manifest error must give great weight to the factual conclusions of the trial court. Where there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed, even though this court may deem other inferences and evaluations are as reasonable. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Extensive testimony and stipulations of testimony were elicited at trial. Even though the trial court did not specifically detail which facts supported its conclusions, we note the record is sufficient to support the judgment, particularly as regards the younger daughter, Latisha.

MacArthur Davis acknowledged, in writing, both children as his daughters.5 On March 20, 1980, a document entitled AC-KNOWLEDGEMENT OF PATERNITY was executed by MacArthur Davis to Latisha Williams before two witnesses, Sarah Williams, the child’s mother, and Debbie Kropog, an eligibility worker with the Tan-gipahoa Parish Office of Family Security. The document states in pertinent part, “I, MacArthur Davis, declare and acknowledge that I am the father of the child Latisha Williams born 11/28/78, place of birth Hammond, (Tang.) La. whose mother is [646]*646Sarah Williams.” MacArthur Davis’ signature appears after this statement.

On November 24, 1980, MacArthur Davis made the following written statement to the Department of Health and Human Services, Social Security Administration; “I have always acknowledged Latisha R. Williams, dob 11/28/78, and Shalonda C. Williams, dob 07/22/77, as my children. Both Sarah Williams, their mother, and I were free to marry when they were conceived and born. I have always acknowledged them/they have always lived with me since birth.” MacArthur Davis’ signature appears after this statement.

Sarah Williams is the mother of the two children. She testified she started living with MacArthur Davis about September of 1976, continuing this arrangement until his death and maintained no other intimate relations since she began living with MacArthur.6 She stated her relationship with a Mr. Lee Cooper, Jr. had ended many months before July of 1976 when she gave birth to Laquanta, Lee Cooper’s child. Sarah testified MacArthur and her mother, Rosa, were present at the birth of both children. Further, she stated MacArthur bought necessities for the children and spoke of the children as his own to other persons.

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Related

Thomas v. Smith
463 So. 2d 971 (Louisiana Court of Appeal, 1985)
Succession of Lyons
452 So. 2d 1161 (Supreme Court of Louisiana, 1984)
Louisiana State Bar Association v. Edwins
329 So. 2d 437 (Supreme Court of Louisiana, 1976)
Sanders v. Sanders
62 So. 2d 284 (Supreme Court of Louisiana, 1952)
Arceneaux v. Domingue
365 So. 2d 1330 (Supreme Court of Louisiana, 1978)
Canter v. Koehring Company
283 So. 2d 716 (Supreme Court of Louisiana, 1973)
Succession of Bartie
472 So. 2d 578 (Supreme Court of Louisiana, 1985)
Reed v. Missouri Pacific RR
446 So. 2d 831 (Louisiana Court of Appeal, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
481 So. 2d 643, 1985 La. App. LEXIS 10503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-lamont-lactapp-1985.