STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
20-608
GARRETT BASS
VERSUS
CHRISTOPHER SEPULVADO, ET AL.
********** REMAND FROM THE LOUISIANA SUPREME COURT OF THE APPEAL FROM THE ELEVENTH JUDICIAL DISTRICT COURT PARISH OF SABINE, NO. 70149 HONORABLE STEPHEN B. BEASLEY, DISTRICT JUDGE
**********
JOHN E. CONERY JUDGE
Court composed of John E. Conery, D. Kent Savoie, Van H. Kyzar, Sharon Darville Wilson, and Gary J. Ortego,1 Judges.
REVERSED AND REMANDED.
Savoie, J., dissents and assigns written reasons.
Kyzar, Judge, dissents and assigns reasons.
1 Judge Gary J. Ortego was elected to and is now sitting for the remainder of the term of Judge John Saunders, now deceased. William D. Dyess Dyess Law Firm 207 Church Street, Suite 106 Post Office Box 18 Natchitoches, Louisiana 71457 (318) 352-5880 COUNSEL FOR PLAINTIFF/APPELLANT: Garrett Bass
Misty Dawn Smith Dowden & Smith, L.L.C. 301 South Third Street Leesville, Louisiana 71446 (337) 238-2800 COUNSEL FOR DEFENDANT/APPELLEE: Christopher Sepulvado
Christina Edwards In Proper Person 715 Blockhouse Road Many, Louisiana 71449 PRO SE DEFENDANT/APPELLEE: Christina Edwards CONERY, Judge.
This case comes before the Court on a reversal and remand from the Louisiana
Supreme Court.
In the underlying appeal, the plaintiff, Garrett Bass (Mr. Bass), sought to
reverse the trial court’s June 8, 2020 judgment granting the defendant Christopher
Sepulvado’s exception of peremption pursuant to La.Civ.Code art. 198, thereby
dismissing Mr. Bass’s petition to establish the paternity of S.J.S.2 The mother of
S.J.S., Christina Edwards, resumed her maiden name after her divorce from Mr.
Sepulvado, and was named as a defendant in Mr. Bass’s petition for paternity. Ms.
Edwards filed a pro-se brief acknowledging that Mr. Bass was the father of S.J.S.
On initial review, in a 3-2 ruling, this court reversed the trial court’s ruling granting
Mr. Sepulvado’s exception of peremption pursuant to La.Civ.Code art. 198 and
dismissed Mr. Bass’s suit. See Bass v. Sepulvado, 20-608 (La.App. 3 Cir. 6/30/21)
(an unpublished opinion) (2021 WL 2694865). We did so on the basis that Mr.
Sepulvado made a judicial confession pursuant to La.Civ.Code art. 1853 that Mr.
Bass was, in fact, the biological father of S.J.S., as well as an admission at trial to
that same effect. Also, DNA evidence introduced at trial undeniably established that
Mr. Bass is the biological father of S.J.S. Id.
The Louisiana Supreme Court subsequently granted writs, remanding this
case to this Court by Per Curiam opinion, as follows:
Writ granted. The judgment of the appellate court is hereby reversed and this case is remanded to the court of appeal for a consideration of whether the requirements of La. C.C. art. 198 were met in light of this Court’s decision in Kinnett v. Kinnett, 2020-01134, _ So.[3]d _, 2021
2 The minor child’s initials are used throughout. See, e.g., Uniform Rules—Courts of Appeal, Rule 5—2. WL 5860935, reh’g denied, 2020-01156, _ So.[3]d _, 2022 WL 263066 (La. 1/28/22).
Bass v. Sepulvado, 21-1124, p. 1 (La. 2/15/22), 332 So.3d 1174, 1174.
After reviewing the supreme court’s decision in Kinnett v. Kinnett, 20-1134
(La. 12/10/21), 332 So.3d 1149, we find that a reversal of the underlying trial court
judgment and remand to the trial court is required.
FACTS AND PROCEDURAL HISTORY
Before beginning a discussion of the factual and legal issues on remand, we
find from the uncontroverted facts in the record, the following:
August 2, 2003 – Ms. Edwards and Mr. Sepulvado were married.
October 16, 2016 - October 17, 2017 - Mr. Bass and Ms. Edwards were involved in an intimate sexual relationship. Ms. Edwards testified she did not use birth control during the entire the year 2017.
April 2017 - Ms. Edwards believed her minor daughter S.J.S. was conceived but is not sure of the exact date. At the time, Ms. Edwards was having unprotected sex with both Mr. Bass and Mr. Sepulvado. Mr. Sepulvado was working offshore and was gone for two or more weeks a time. Sometime between Ms. Edwards learning of her pregnancy and Mr. Sepulvado’s petition for divorce in August, Ms. Edwards told Mr. Sepulvado she was pregnant and there was a possibility the child was not his.
August 14, 2017 - Mr. Sepulvado filed a Petition for Divorce pursuant to La.Civ.Code art. 103.2 based on adultery. He named Mr. Bass as the biological father of the fetus. Mr. Bass was not a party to that proceeding and hence was never served with the petition. Mr. Sepulvado testified the petition was dismissed, but there is no evidence of a dismissal in the record.
October 2017 - Mr. Sepulvado and Ms. Edwards reconciled and began living together again.
January 5, 2018 - S.J.S. was born. Mr. Sepulvado was named as the father of S.J.S. on the birth certificate.
March 28, 2018 - Mr. Sepulvado and Ms. Edwards again separated.
March 29, 2019 – Ms. Edwards filed for divorce based on the couple living separate and apart for a year.
2 April 4, 2019 – Mr. Sepulvado and Ms. Edwards’s divorce became final.
May 2019 - Ms. Edwards and Mr. Bass resumed their relationship. Ms. Edwards had a hysterectomy and thus, would not be able to have any more children. Shortly thereafter, Ms. Edwards and Mr. Bass begin living together.
July 2019 – Ms. Edwards and Mr. Bass became engaged to be married.
August 10, 2019 – After Ms. Edwards and Mr. Bass were engaged, Ms. Edwards told Mr. Bass “that there was a possibility that [S.J.S.] was his.”
September 20, 2019 - Mr. Bass immediately sought a DNA test and received the results which demonstrated that there was a 99.997% chance that S.J.S. was his child.
November 25, 2019 – Mr. Bass filed a Petition To Establish Paternity seeking to “be recognized as the natural and biological father” of S.J.S. and to add his name to the birth certificate of S.J.S. The petition was filed approximately one year and ten months after the birth of S.J.S, but only two (2) months after he received the DNA test establishing that he was the biological father of S.J.S.
December 13, 2019 - Mr. Sepulvado filed a Peremptory Exception pursuant to La.Civ.Code art.185, claiming that he was the presumed father of S.J.S. as she was born during the marriage, and that Ms. Bass’s claim was perempted pursuant to La.Civ.Code art. 198.
June 5, 2020 – After several continuances and the delays associated with the COVID-19 public health emergency, the trial court held a hearing on Mr. Sepulvado’s peremptory exception to Mr. Bass’s Petition to Establish Paternity.
June 8, 2020 – Judgment was issued by the trial court granting Mr. Sepulvado’s exception pursuant to La.Civ.Code art. 198. The trial court did not issue any findings of fact or reasons for ruling.
July 8, 2020 – Mr. Bass timely filed a devolutive appeal in this court.
May 4, 2021 - Mr. Bass’s appeal was heard on the May 2021 Docket by a panel of this court, without oral argument.
May 25, 2021 - A Five Judge Panel was appointed to hear the appeal, also without additional briefing and oral argument.
3 June 30, 2021 – The 3-2 opinion of the appellate court was released reversing the trial court’s June 8, 2020, judgment and granting Mr. Bass’s avowal action naming him as the father of S.J.S. Judge Savoie filed a dissent, joined by Judge Kyzar.
July 30, 2021 - Mr. Sepulvado filed a writ with the Louisiana Supreme Court seeking to reverse this court’s ruling.
February 15, 2022 - The Louisiana Supreme Court granted Mr. Sepulvado’s writ, and remanded the case to this court to review in light of their ruling in Kinnett.
March 2, 2022 – Mr. Bass did not request a rehearing in the supreme court, and the case was remanded to this court.
Finding error of fact and law, we reverse the trial court and remand for further
proceedings in light of the supreme court’s ruling in Kinnett, 332 So.3d 1149.
LAW AND DISCUSSION
Consideration here begins with the supreme court’s directive to consider
“whether the requirements of La.C.C. art. 198[3] were met in light of [the supreme]
[c]ourt’s decision in Kinnett, [332 So.3d 1149,]” a case released subsequent to this
panel’s original opinion in this case. See Bass, 332 So.3d at 1174.
The supreme court began its discussion in Kinnett with the foundational
consideration of the burden of proof applicable to consideration of the one-year
3 Louisiana Civil Code Article 198 provides in pertinent part:
A man may institute an action to establish his paternity of a child at any time except as provided in this Article. The action is strictly personal.
If the child is presumed to be the child of another man, the action shall be instituted within one year from the day of the birth of the child. Nevertheless, if the mother in bad faith deceived the father of the child regarding his paternity, the action shall be instituted within one year from the day the father knew or should have known of his paternity, or within ten years from the day of the birth of the child, whichever first occurs.
….
The time periods in this Article are peremptive.
(Emphasis added.)
4 peremptive period of Article 198. The supreme court explained:
“Peremption has been likened to prescription; namely, it is prescription that is not subject to interruption or suspension.” Lomont v. Bennett, 14- 2483 (La. 6/30/15), 172 So.3d 620, 626-27; Rando v. Anco Insulations, Inc., 08-1163 (La. 5/22/09), 16 So.3d 1065, 1082. The rules governing the burden of proof as to prescription also apply to peremption. Id. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Id. But, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Id.
Id. at 1154 (emphasis added). It is on this basis that we find that a de novo review
of the record is now required.
Unlike the situation in Kinnett, Mr. Bass’s Petition to Establish Paternity is
perempted on its face as he filed the avowal action on November 25, 2019 and
alleged therein that the minor child, S.J.S., was born on January 5, 2018. He thus
filed the petition more than one year after the child’s birth.4 Notably, and again
unlike Kinnett, Mr. Bass did not include in the petition a plea of the exception to
La.Civ.Code art. 198 of bad faith on the part of Ms. Edwards. At the hearing,
however, there was no objection to any of the evidence as to paternity as well as the
applicability of the “bad faith” exception to the peremptive period, and therefore we
find the pleadings were expanded and the evidence, such as it is, was properly
admitted. See La.Code Civ.P. art. 1154 (providing, in part: “When issues not raised
by the pleadings are tried by express or implied consent of the parties, they shall be
treated in all respects as if they had been raised by the pleading.”). See also Hataway
v. AKAL Sec., Inc., 17-398 (La.App. 3 Cir. 12/18/17), 235 So.3d 1189.
4 Although the biological father’s avowal action at issue in Kinnett was filed more than eighteen months after the birth of the minor child, the avowal action was not perempted on its face as the biological father “pled the exception to Article 198’s one year peremptive period for an avowal action” and, thus, “the action is not perempted on the face of the pleadings[.]” Id. at 1154. Under those circumstances, the supreme court explained, the burden of proof was on the exceptor and presumptive father, Mr. Kinnett. Id.
5 Given the burden of proof set forth in Kinnett, 332 So.3d 1149, Mr. Bass was
required to bear the burden of demonstrating that his Petition to Establish Paternity
was not perempted. Mr. Bass was therefore required to prove that 1) Ms. Edwards
acted “in bad faith” as to Mr. Bass’s paternity of S.J.S. and that 2) the Petition to
Establish Paternity was filed within one year of the day he knew or should have
known of his paternity. See La.Civ.Code art. 198. See also Kinnett, 332 So.3d 1149.
Review of the hearing transcript, however, indicates that the parties and trial
court proceeded under an incorrect burden of proof, one requiring Mr. Sepulvado to
prove that Ms. Edwards was not in bad faith rather than one requiring Mr. Bass to
prove the reverse. At the beginning of the hearing on the exception of peremption,
the trial court asked the parties how they wished to proceed with the following
colloquy reflecting some degree of confusion regarding the burden of proof:
THE COURT: Ms. Smith you had filed this exception.
MS. SMITH [Counsel for Mr. Sepulvado]: Yes, I have, Your Honor.
THE COURT: How would you like to proceed, Ms. Smith? Mr. Sylvia [Counsel for Mr. Bass]?
MS. SMITH [Counsel for Mr. Sepulvado]: Your Honor, I would like to go ahead an[d] offer and introduce the actual Petition for Paternity that was filed by Mr. Bass in these proceedings. And at that point in time, I believe I’ve made my prima facie case for p[er]emption, and now the ball is in Mr. Sylvia’s court to rebut.
MR. SYLVIA [Counsel for Mr. Bass]: Well, Your Honor, I do believe that it is her exception. And if that’s the only evidence she intends to introduce, I’m prepared to go forward.
MS. SMITH [Counsel for Mr. Sepulvado]: It’s not the only evidence I intend to introduce. I’m saying I’ve made my prima facia case. You have a defense to my exception, which I can then rebut.
THE COURT: Is there anything else you wish to offer? Any
6 testimony –
MS. SMITH [Counsel for Mr. Sepulvado]: Yes, Your Honor.
THE COURT: - or anything like that to bolster your case or not?
MS. SMITH [Counsel for Mr. Sepulvado]: Yes.
THE COURT: Okay.
MR. SYLVIA [Counsel for Mr. Bass]: Then I think, Your Honor, then that needs to be presented first. It’s her exception.
THE COURT: Okay. I think that’s what’s getting ready to happen.
Following that discussion, the order of hearing followed as if Mr. Sepulvado was
required to bear the burden of proof on the exception of peremption, i.e., 1) counsel
for Mr. Sepulvado introduced exhibits and called witnesses on behalf of Mr.
Sepulvado, 2) counsel for Mr. Bass called witnesses on behalf of Mr. Bass;5 and 3)
counsel for both parties recalled witnesses on rebuttal.
Following counsel for Mr. Sepulvado’s rebuttal questioning, however,
counsel for Mr. Bass attempted to recall another witness on rebuttal but was denied
that opportunity as seen by the following colloquy:
MS. SMITH [Counsel for Mr. Sepulvado]: Nothing further, Your Honor.
THE COURT: Sir, do you have any questions of the gentleman?
MR. SYLVIA [Counsel for Mr. Bass]: No. I’d like to call – recall another rebuttal witness to that testimony.
5 Counsel for Mr. Bass also introduced documentary evidence but only did so at the close of all testimony.
7 THE COURT: This is rebuttal. She’s rebutting you right now. This is her motion, she’s rebutting.
MR. SYLVIA [Counsel for Mr. Bass]: Okay.
THE COURT: Do you have any questions of him?
MR. SYLVIA [Counsel for Mr. Bass]: I have none.
THE COURT: Thank you, sir.
After counsel for Mr. Sepulvado declined to call additional witnesses, the trial court
took the matter under submission with no additional comment and filed a judgment
with no reasons or findings a few days later.
The trial court’s failure to either offer oral or written reasons complicates this
court’s review, as it is difficult to determine if the application of the incorrect burden
of proof affected the trial court’s ruling. As the supreme court explained in Kinnett,
A court of appeal may not set aside a trial court’s findings of fact in the absence of manifest error or unless it is clearly wrong. Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731, 735; Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). However, where one or more legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record. Evans, 708 So.2d at 735. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Id. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Id.
Id. at 1154.
Given the factual circumstances of Kinnett, the supreme court concluded that
there “was no legal error that materially affected the outcome or interdicted the fact-
finding process. To the contrary, the district court was informed on the proper
burden of proof, then determined the critical facts.” Id. at 1154-55. Thus, the
supreme court concluded that the fifth circuit had fallen into error in performing a
de novo review. Id.
8 The converse is present in this case. Although neither the trial court nor the
parties in this matter had the benefit of Kinnett, as it was subsequently rendered, the
parties and the trial court nonetheless proceeded to the hearing under the incorrect
burden of proof. That application resulted, in the least, in Mr. Bass assuming a
defensive posture and in being denied the opportunity to proceed on rebuttal as he
would have otherwise. Further, it is “[w]hen the findings are based on
determinations regarding the credibility of witnesses” that “the manifest error-
clearly wrong standard demands great deference to the findings of fact[.]” Hebert v.
Rapides Par. Police Jury, 06-2001 (La. 4/11/07), 974 So.2d 635, 654 (on rehearing).
That deferential standard is in place as “only the factfinder is cognizant of the
variations in demeanor and tone of voice that bear so heavily on the listener’s
understanding and belief in what is said.” Id. (citing Rosell, 549 So.2d 840
(La.1989)). That deferential standard is therefore not applicable in this case, as it
was in Kinnett, since the trial court in this case made absolutely no factual findings
or credibility determinations. We therefore find that a de novo review is required,
but even applying the manifest error standard of review, because of the state of the
record, reversal and remand is necessary.
In this case, the state of the record makes it impossible to provide any
meaningful review given the supreme court’s direction on remand to consider
whether the requirements of La.Civ.Code art. 198 have been met in light of Kinnett,
332 So.3d 1149. Kinnett provides the following directive regarding the subjective
and credibility-based nature of the bad faith exception to peremption under
La.Civ.Code art. 198:
The operative terms in Article 198 are “bad faith” and “deceived.” “Bad faith” is a “[d]ishonesty of belief, purpose, or motive.” Black’s Law Dictionary (11th ed. 2019). Although “deceived” is not in Black’s
9 Law Dictionary, “deception” is defined as “[t]he act of deliberately causing someone to believe that something is true when the actor knows it to be false.” Black’s Law Dictionary (11th ed. 2019). Merriam- Webster also defines deception as “the act of deceiving.” Thus, deception is a deliberate act that causes someone to believe something the actor knows to be false. To “know” something is to be aware of the truth or factuality of it. Merriam-Webster's Dictionary (11th ed. 2021). The question here is whether Ms. Kinnett made a deliberate representation to Mr. Andrews regarding his paternity that she knew was false. The credibility of Ms. Kinnett’s belief as to her child’s father is the critical issue.
Id. at 1155 (emphasis added) (footnote omitted).
Moreover, and most importantly to a resolution in this case, the supreme court
in Kinnett stated: “We also note that deceit can result from silence. If Ms. Kinnett
knew her husband was not the father and Mr. Andrews was, her silence could
constitute bad faith deception.” Id. at 1155 n.3 (emphasis added).
Mr. Bass’s primary contention in opposition to Mr. Sepulvado’s exception of
peremption is deceit by silence. Mr. Bass claims that he was deceived by Ms.
Edwards as she continued to live with her former husband after she became pregnant
but did not inform him of his possible paternity. In fact, Ms. Edwards testified that
while she eventually informed others, including Mr. Sepulvado, of Mr. Bass’s
paternity, she did not inform Mr. Bass of his likely paternity until August 10, 2019.
When asked what was “special” about August 10, 2019, Ms. Edwards stated in her
deposition introduced at the hearing that:
Because we (referring to she and Mr. Bass) got engaged in July, and we were discussing the fact that I couldn’t have any more kids because I had had a hysterectomy in May. It was just a conversation we were having on the phone, and I told him that there was a possibility that [S.J.S.] was his.
Her testimony at the hearing was also clear that she never informed Mr. Bass of his
10 possible paternity until August 10, 2019.6 The trial court failed to make a credibility
assessment of Ms. Edwards’s testimony as to the timeline associated with her
knowledge regarding the paternity of S.J.S., nor her testimony indicating that she
said nothing to Mr. Bass until August 2019. The trial court’s omission is important
as the supreme court in Kinnett described inquiry as to bad faith silence as the
“critical issue” before it. Id. at 1155. On de novo review, we are unable to make
such a credibility determination, either of Ms. Edwards or the other witnesses, given
the cold record before us. It is plain that the record, as it exists, does not support the
trial court’s grant of the exception of peremption as there are no credibility findings
nor any findings of fact as to whether Mr. Bass was “deceived by silence” or
otherwise deceived. As stated, there are no factual or credibility findings and no
reasons for ruling whatsoever.
Given the deficiencies in the record resulting in part from the erroneous
burden of proof applied at trial, we conclude that a new hearing is required. A
remand for a new hearing will permit the parties to proceed under the burden of
proof identified in Kinnett and to present their evidence in light of the standard of
“bad faith” discussed therein.
We further note that the original hearing in this matter occurred in June 2020,
when S.J.S. was two (2) years old and well before the supreme court released Kinnett,
332 So.3d 1149, in October 2021. S.J.S. is now over four (4) years old. A new
hearing under the appropriate burden of proof will afford the parties the opportunity
to take all of the circumstances of this case into account. It will further allow the
trial court to make the credibility and factual findings necessary for further review
6 See, e.g., record pages, 222-27, 230-33.
11 as may be supported by the law and evidence, given that credibility determinations
were explained to be critical in determining the “bad faith” exception to the
peremptive period of La.Civ.Code art. 198 discussed in Kinnett. We accordingly
remand this matter for a new hearing.7
DECREE
For the foregoing reasons, the judgment of the trial court’s June 8, 2020
judgment is reversed. This matter is remanded for a new trial on the Exception of
Peremption filed by Defendant-Appellee Christopher Sepulvado. Costs of this
appeal are to be shared equally by the parties pending final resolution of this case.
7 Though not pleaded in the original hearing, nothing herein precludes Mr. Bass and/or Ms. Edwards on remand from raising the issue of the constitutionality of La.Civ.Code art. 198. See, e.g., Kinnett v. Kinnett, 17-625 (La.App. 5 Cir. 8/6/20), 302 So.3d 157, 187 (Wicker, J.,concurring opinion).
12 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT 20-608
SAVOIE, J. dissents and assigns written reasons.
This matter is before us on remand from the Louisiana Supreme Court. We
are ordered to consider whether the requirements of La.Civ.Code art. 198 were met
in the present case in light of the Louisiana Supreme Court’s recent decision in
Kinnett v. Kinnett, 20-1134 (La. 10/10/21), 332 So.3d 1149. The majority finds that
the state of the record precludes us from making such a decision and remands to the
trial court for a new hearing. I respectfully disagree.
Initially, I would point out that I disagree with the majority’s list of
uncontroverted facts. For example, included as an uncontested fact is that on August
10, 2019, “[a]fter Ms. Edwards and Mr. Bass were engaged, Ms. Edwards told Mr.
Bass ‘that there was a possibility that [S.J.S.] was his.’” As discussed later in this
dissenting opinion, several witnesses testified that Mr. Bass knew of his paternity
prior to this date and as early as the summer of 2017. Mr. Bass’s knowledge of his
possible paternity, specifically when Ms. Edwards’ told him he was the minor child’s
father, is part of the central issue in this case.
Moving on to the analysis, Kinnett is very similar procedurally and
substantively to Bass. In Kinnett, DNA evidence proved Mr. Andrews to be the
minor child’s biological father. This evidence resulted in Mr. Andrews intervening
in the divorce proceeding of Mr. and Ms. Kinnett in order to establish paternity and
obtain custody of the child. Mr. Andrews alleged that Mrs. Kinnett concealed the fact that he may be the father. He also alleged unconstitutionality of La.Civ. Code
art. 198. In response, Mr. Kinnett filed an exception of peremption, alleging the
avowal action was untimely under La.Civ.Code art. 198. After a hearing, the trial
court found Mr. Andrews’ avowal action was perempted under La.Civ.Code art. 198
and upheld the constitutionality of Article 198. Mr. Andrews appealed to the Fifth
Circuit Court of Appeal. The Fifth Circuit reversed the ruling of the trial court on
the merits, finding that Mr. Andrews’ avowal action was not perempted, however, it
did not address the constitutionality of Article 198. Specifically, the Fifth Circuit
found that the trial court applied the wrong burden of proof and performed a de novo
review of the record. After a review of the record, the Fifth Circuit found that Ms.
Kinnett did deceive Mr. Andrews and further found that Mr. Andrews’ petition was
timely, reversing the trial court. The supreme court reversed the Fifth Circuit,
finding Mr. Andrews was not deceived, and his avowal claim was perempted. The
Kinnett case was remanded to the Fifth Circuit “for the limited purpose of addressing
Mr. Andrews’ constitutional challenge.”1
At the outset of the opinion in the present case, the majority determines that a
de novo review of the record is required, rather than a manifest error review. In
making this determination, the majority finds that the trial court applied the wrong
burden of proof. The majority notes that the supreme court “began its discussion in
Kinnett with the foundational consideration of the burden of proof applicable to
consideration of the one-year peremptive period of Article 198.” The supreme court
in Kinnett did so because the issue of who held the burden of proof was argued by
the parties at both the trial court and appellate court levels. This issue is absent in
Bass. Neither party in the present case argued that the trial court applied the wrong
burden of proof. Burden of proof is not assigned as an assignment of error by Garrett
Bass. The only issue presented by Garrett Bass in his brief to this court is “[w]hether
1 The present case, Bass, does not involve a constitutional challenge.
2 or not the trial court errored [sic] in finding that the premptive [sic] period in the
petition for paternity had lapsed or that the action for paternity was not timely filed.”
Considering the petition is perempted on its face, I agree with the majority
that Mr. Bass bears the burden of proving the peremptive period was interrupted;
however, I do not agree that the trial court proceeded under an incorrect burden of
proof. The majority relies on the order of the proceedings at the trial court level to
prove that the trial court applied the wrong burden. As explained in the majority
opinion, Mr. Sepulvado introduced and called witnesses, then Mr. Bass introduced
and called witnesses, and finally both parties called witnesses on rebuttal. At that
point, the case was submitted to the court for judgment. I do not find any error with
the way the hearing proceeded, and certainly cannot ascertain the burden of proof
applied based on the order of events.
The majority also finds fault with the trial court’s failure to offer either oral
or written reasons, stating that it complicates this court’s review to determine
whether the trial court applied the wrong burden of proof. Again, burden of proof is
not an issue on appeal in this case that was argued by either party. Regardless, “a
trial court is never required to give oral reasons and is not required to give written
reasons for its ‘findings of fact and reasons for judgment’ unless requested by a party
in most types of non-jury cases.” Gathen v. Gathen, 10-2312, p. 9 (La. 5/10/11), 66
So.3d 1, 12 (quoting La.Code Civ.P. art. 1917).
“Applying the wrong burden of proof is . . . inherently prejudicial because it
casts a more onerous standard than the law requires on one of the parties.” Leger v.
Leger, 854 So.2d 955, 957 (La.App. 3 Cir. 2003). However, in this particular case,
the majority reasons that the trial court placed the more onerous burden on Mr.
Sepulvado, rather than Mr. Bass. Even though he was tasked with the more onerous
burden at trial, the trial court still ruled in Mr. Sepulvado’s favor. Thus, Mr.
Sepulvado was not prejudiced by any alleged incorrect burden shift. When
3 discussing whether to apply the manifest error review, the Kinnett court explained
that “[a] legal error occurs when a trial court applies incorrect principles of law and
such errors are prejudicial.” Kinnett, 332 So.3d at 1154 (emphasis added). “Legal
errors are prejudicial when they materially affect the outcome and deprive a party of
substantial rights.” Id. In this case, even assuming the trial court applied the
incorrect burden of proof, Mr. Sepulvado was not prejudiced, the parties were not
deprived of substantial rights, and the outcome was not materially affected.
In summary, I do not find any confusion over whether the trial court applied
the proper burden of proof. First, neither party argued that the trial court applied the
improper burden of proof. Therefore, it is not an issue before this court. Further,
this court cannot assume that the trial court applied the incorrect burden of proof
based on a lack of oral or written reasons when the trial court is not required to give
those reasons. Similarly, I do not believe the order in which the trial court proceeded
at the hearing is evidence that the trial court applied the wrong burden of proof. For
these reasons, I would apply the manifest error standard in reviewing this case.
The majority opines that, even applying the manifest error standard, a reversal
and remand is warranted. The majority arrives at this opinion by finding that the
deferential standard is not applicable in this case. When reviewing a case under the
manifest error standard, great deference is given to the findings of fact. Hebert v.
State Farm Fire and Casualty Company, 21-10 (La.App. 3 Cir. 8/4/21), 325 So.3d
1090, writ denied, 21-1358 (La. 11/17/21), 327 So.3d 992. The majority opinion
finds that the deferential standard is not applicable because “the trial court in this
case made absolutely no factual findings or credibility determinations.” This is
incorrect. The trial court held a hearing in which evidence was taken, witnesses
testified, and arguments were made. The trial court then ruled in favor of Mr.
Sepulvado. The trial court clearly had to make findings of fact and judge credibility
in order to reach a conclusion and rule on the exception.
4 As stated previously, a trial court is not required to give oral or written
reasons. We, as a reviewing court, cannot conclude, in the absence of oral or written
reasons, that a trial court made no factual findings or credibility determinations. “[A]
reviewing court must review the record in its entirety to determine whether the trial
court’s finding was clearly wrong or manifestly erroneous.” Stobart v. State through
Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). In the present
case, the trial court found that Mr. Bass’s petition was filed untimely. It is our job,
as the reviewing court, to review the record and determine whether the trial court
was manifestly erroneous. While oral or written reasons may make our job easier,
we cannot neglect our duty due to a lack of reasons given by the trial court.
We must now resolve the issue that is on appeal and on remand – the exception
of peremption. Regarding manifest error review, this court in Hebert, 325 So.3d at
1093, explained:
When reviewing factual determinations for manifest error, the issue is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was reasonable. [Stobart, 617 So.2d 880]. If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as trier of fact, it would have weighed the evidence differently. Id. Additionally, where factual findings are based on determinations regarding the credibility of witnesses, great deference is afforded to those factual findings under the manifest error standard. Rosell v. ESCO, 549 So.2d 840 (La.1989). Factual findings based on the fact finder’s decision to credit the testimony of one of two or more witnesses can virtually never be manifestly erroneous. Id. This rule applies equally to the fact finder’s evaluation of expert testimony. Lasyone v. Kansas City S. R.R., 00-2628 (La. 4/3/01), 786 So.2d 682.
This matter was previously before us on this same exception of peremption. I
wrote a dissenting opinion in that case, Bass v. Sepulvado, 20-608 (La.App. 3 Cir.
6/30/21) (unpublished opinion), rev’d and remanded per curiam, 21-1124 (La.
2/15/22), 332 So.3d 1174. I will incorporate the applicable analysis from that dissent
into this one:
5 Before this court is an exception of peremption. The applicable law is found in La.Civ.Code art. 198, which states:
A man may institute an action to establish his paternity of a child at any time except as provided in this Article. The action is strictly personal.
If the child is presumed to be the child of another man, the action shall be instituted within one year from the day of the birth of the child. Nevertheless, if the mother in bad faith deceived the father of the child regarding his paternity, the action shall be instituted within one year from the day the father knew or should have known of his paternity, or within ten years from the day of the birth of the child, whichever first occurs.
In all cases, the action shall be instituted no later than one year from the day of the death of the child.
The comments to this codal article are instructive. Comment (f) (emphasis added) explains:
The only exception to the time period of one year for the institution of an avowal action by the biological father is if the mother in bad faith deceives the father concerning his paternity. In such case the father may institute the action within one year from the day he knew or should have known of the birth of the child or within ten years of the child’s birth, whichever first occurs. See former C.C. Art. 191 (2004) and R.S. 9:305.
As the biological father, Mr. Bass’s right to present his avowal action must be done within the time frame allowed by law when the child has a legal or presumptive father. Id. The minor child, S.J.S., has a legal father - Mr. Sepulvado. Therefore, because of inaction on the part of Mr. Bass in failing to institute his action within a year of the date of the child’s birth, he must rely on the only exception provided which allows the period to be extended if he was deceived as to his paternity.2 Mr. Sepulvado’s knowledge regarding the paternity of S.J.S. is of no consequence. The only issue before this court is whether Mr. Bass’s late action falls under the exception to extend the period for filing his avowal action.
Judge Kyzar gives an excellent and thorough recitation of the trial testimony
in his dissenting opinion. I incorporate and adopt that discussion here.
2 While the biological father has one year from the date of the birth of the child to institute his avowal action where there is a legal or presumptive father, a child may establish filiation at any time up to one year from the death of the alleged father, even in cases where there is also a legal father. La.Civ.Code art. 197. 6 “[T]he action shall be instituted within one year from the day the father knew
or should have known of his paternity.” La.Civ.Code art. 198. In the Petition to
Establish Paternity, Garrett Bass stated that he was in a sexual relationship with Ms.
Edwards from October 2016 through October 2017. Therefore, Mr. Bass was in a
sexual relationship with Ms. Edwards during her pregnancy up until she was
approximately seven months pregnant, wherein it was admitted that they repeatedly
had unprotected sex. Further, several witnesses testified that Mr. Bass did, in fact,
know of his paternity by the summer of 2017. As such, I do not find that the trial
court was manifestly erroneous in finding that this action was not instituted within
one year from the day Mr. Bass knew or should have known of his paternity.
Therefore, in order for Mr. Bass’s petition to be timely, Mr. Bass must prove the one
exception to La.Civ.Code art. 198 - if the mother in bad faith deceives the father
concerning his paternity.
The Kinnett case is instructive. The question for the court in Kinnett, the
supreme court explained, was “whether Ms. Kinnett made a deliberate representation
to Mr. Andrews regarding his paternity that she knew was false.” Id. at 1155. The
supreme court stated, “The credibility of Ms. Kinnett’s belief as to her child’s father
is the critical issue.” Id.3 Ms. Kinnett testified that she believed Mr. Kinnett was the
father of her child, even though she knew it was possible that Mr. Andrews was the
father. The supreme court found that because Ms. Kinnett believed Mr. Kinnett was
the child’s father, she “did not tell Mr. Andrews anything regarding his paternity that
she knew was false.” Id. at 1156. Therefore, she did not deceive him, and Mr.
Andrews’ petition was perempted.
In the present case, the trial court heard all of the testimony, looked at the
totality of the evidence, and weighed the credibility of the witnesses. Mr. Bass and
3 It should be noted that in its discussion of “deceit by silence,” the majority opinion states that “inquiry as to bad faith silence” is the “critical issue” in Kinnett. This is a mischaracterization of the holding in Kinnett. 7 Ms. Edwards both testified that she did not tell him that he was the father of the
minor child until August 2019. However, at the hearing, several witnesses disputed
this fact, stating that Mr. Bass knew as early as the summer of 2017. One witness,
Brenda Carter, Ms. Edwards’s co-worker, about two months into Ms. Edwards’s
pregnancy, Ms. Edwards did not come into work. Ms. Edwards called, crying
hysterically, to say she told Mr. Bass about the pregnancy, that the child was his,
and that he told her he wanted nothing to do with the baby. In fact, Ms. Carter
recounted that Ms. Edwards told her he wanted Ms. Edwards to have an abortion.
Regarding Ms. Edwards belief about the paternity of her child, that is unclear
from the record. Her testimony in her deposition and at trial is contradictory. At
one point, she testifies that she did not know who the father of her baby was. At
another point, she states that she knew it was Mr. Bass’s early on. There is no
testimony in the record that Ms. Edwards ever told Mr. Bass that the child was Mr.
Sepulvado’s. Therefore, based on the record we cannot find that Ms. Edwards made
a deliberate representation to Mr. Bass regarding his paternity that she knew was
false. See Kinnett, 332 So.3d 1149.
The majority orders this case remanded to the trial court for a new hearing
because the majority is “unable to make [] a credibility determination [as to bad faith
silence], either of Ms. Edwards or the other witnesses, given the cold record before
us[,]” citing to a footnote in the Kinnett case that “deceit can result from silence.”
In doing so, the majority determines that the trial court failed to make a credibility
assessment of Ms. Edward’s testimony. This is incorrect. As stated previously in
this dissent, a full hearing was held wherein evidence was adduced, witnesses
testified, and arguments were made. It is clear from the record that the trial court
was required to weigh the credibility of the witnesses in order to rule on the
exception in this case. It is also clear from the record that the trial court did make a
credibility assessment of Ms. Edward’s testimony and found her testimony lacking
8 in credibility. As such, while deceit can result from silence, the trial court found that
was not the case in this matter.
The manifest error standard of review indeed applies here, and the trial court,
after hearing the evidence, determined that Mr. Bass did not prove that he was
deceived by Ms. Edwards. I can find no manifest error in that decision based on the
evidence. The trial judge heard the witnesses and was in the best position to
determine the weight and credibility to be afforded thereto. Accordingly, I would
affirm the judgment of the trial court granting the exception.