Francis v. Francis

97 So. 3d 1091, 2011 La.App. 1 Cir. 2116, 2012 WL 3143859, 2012 La. App. LEXIS 1045
CourtLouisiana Court of Appeal
DecidedJune 13, 2012
DocketNo. 2011 CW 2116
StatusPublished
Cited by4 cases

This text of 97 So. 3d 1091 (Francis v. Francis) 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
Francis v. Francis, 97 So. 3d 1091, 2011 La.App. 1 Cir. 2116, 2012 WL 3143859, 2012 La. App. LEXIS 1045 (La. Ct. App. 2012).

Opinion

CARTER, C.J.

|2In this 'writ application, the mother of two minor children and their adoptive father challenge the family court’s denial of a peremptory exception raising the objection of no right of action as to the maternal grandparents’ petition for visitation with the children. For the reasons that follow, we grant the writ application, reverse the judgment of the family court, and render judgment sustaining the objection of no right of action and dismissing the maternal grandparents’ petition.

FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY

It is alleged in the pleadings of record that Lauren Marino Francis Kay and Jeffery Scott Francis were married in March 1999. During the marriage, Mr. Francis adopted Lauren’s son from a prior relationship and the two had a daughter born of the marriage. The marriage ended in divorce by judgment signed March 30, 2009, with Lauren and Mr. Francis being awarded joint custody of the children. On May 9, 2009, Lauren married Shiraz K. Kay.

On August 11, 2010, Lauren’s parents, Lawrence and Paulette Marino, filed a petition to establish grandparents’ visitation rights in the ongoing custody proceeding between Lauren and Mr. Francis. After the Marinos’ petition was filed, but before Lauren was served, Mr. Francis’s parental rights were terminated by judgment of the Juvenile Court of East Baton Rouge Parish, and the children were adopted by Lauren’s new husband, Shiraz. Thereafter, Lauren excepted to the petition for grandparent visitation on the bases of no cause of action and no right of action.1 The family court denied the exceptions.

Lauren and Shiraz Kay (“the parents”) filed the present application for supervisory writs, seeking review of the family court’s denial of the peremptory [.^exception raising the objection of no right of action. We granted a writ of certiorari and now exercise our supervisory jurisdiction to consider the correctness of the family court’s decision.

DISCUSSION

Generally, an action can only be brought by a person having a real and actual interest that he asserts. La.Code Civ. Proc. Ann. art. 681. The function of a peremptory exception raising the objection of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Reese v. State, Dept. of Public Safety & Corrections, 03-1615 (La.2/20/04), 866 So.2d 244, 246. The exception assumes that the petition states a valid cause of action for some person and tests whether the plaintiff has an interest in judicially enforcing the right asserted. Louisiana State Bar Ass’n v. Carr and Associates, Inc., 08-2114 (La.App. 1 Cir. 5/8/09), 15 So.3d 158, 165, writ denied, 09-1627 (La.10/30/09), 21 So.3d 292.

In this case, the Marinos seek visitation rights under Louisiana Civil Code article 136. Article 136 provides that under extraordinary circumstances, relatives by blood or affinity not granted custody of the children may be granted reasonable visitation rights when the court determines it to be in the children’s best interests. The parents contend, however, that be[1094]*1094cause the children have been adopted by Shiraz, the exclusive legal authority for grandparent visitation with these children is Louisiana Children’s Code articles 1256 and 1264, which provide grandparents limited visitation rights to adopted children. It is undisputed that the Marinos do not fall within the class of persons to whom the Children’s Code articles grant a cause of action for grandparent visitation. Thus, if the parents’ assertion is correct that the Children’s Code articles govern this matter, the objection of no right of action must be sustained and the Marinos’ petition dismissed.

| Children’s Code article 1256 addresses the effect of a final adoption decree, stating:

A. Except as otherwise provided by Paragraph C of this Article, upon a final decree of adoption, the parents of the child whose rights have not been previously terminated by a surrender or a judgment of termination and all other blood relatives of the adopted child are relieved of all their legal duties and divested of all their legal rights with regard to the adopted child including the right of inheritance from the adopted child and his lawful descendents, and the adopted child and his lawful descendents are relieved of all legal duties and divested of all legal rights with regard to the parents and other blood relatives.
B. The right of the child to inherit from his parents and other blood relatives is unaffected by the adoption.
C. If the adoptive parent is married to a blood parent of the adopted child, the relationship of that blood parent and his blood relatives to the adopted child shall remain unaltered and unaffected by the adoption.
D.Under the circumstances and pursuant to the procedures authorized by Chapter 14 of this Title, grandparents may obtain limited visitation rights to the adopted child.

(Emphasis added.)

Here, the adoptive parent is married to the children’s mother, a blood parent of the adopted children. Article 1256 specifically provides that the relationship of the blood relatives to the adopted children remains unaltered and unaffected by the adoption. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of legislative intent. In re Clegg, 10-0323 (La.7/6/10), 41 So.3d 1141,1154. The family court correctly recognized that the clear and unambiguous language of Article 1256 does not foreclose any rights to visitation that grandparents may have pursuant to other authority, such as Civil Code article 136. Cf. McMillin v. McMillin, 08-502 (La.App. 3 Cir. 3/25/09), 6 So.3d 414, 418 (wherein the court was presented with a different factual situation than is evidenced here, but noted “[tjhough this court is well aware of the legal effects of an adoption, a subsequent adoption neither nullifies nor negates the |,^provisions of [Civil Code article] 136(B), which is the last legislative pronouncement addressed to that issue”). Thus, the parents’ argument that the Mar-inos’ petition must be dismissed because they do not have a right of action under Article 1256 is without merit.

The parents further contend the trial court erred in its determination that the Marinos have a right of action under Article 136, which pertinently provides:2

[1095]*1095A. A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child.
B. Under extraordinary circumstances, a relative, by blood or affinity, or a former stepparent or stepgrandparent, not granted custody of the child may be granted reasonable visitation rights if the court finds that it is in the best interest of the child. In determining the best interest of the child, the court shall consider:
(1) The length and quality of the prior relationship between the child and the relative.
(2) Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

JP Morgan Chase Bank, N.A. v. Boohaker
168 So. 3d 421 (Louisiana Court of Appeal, 2014)
Rogers v. Pastureau
117 So. 3d 517 (Louisiana Court of Appeal, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
97 So. 3d 1091, 2011 La.App. 1 Cir. 2116, 2012 WL 3143859, 2012 La. App. LEXIS 1045, Counsel Stack Legal Research, https://law.counselstack.com/opinion/francis-v-francis-lactapp-2012.