George v. Breaux

486 So. 2d 1159, 1986 La. App. LEXIS 6611
CourtLouisiana Court of Appeal
DecidedApril 9, 1986
DocketNo. 85-165
StatusPublished
Cited by1 cases

This text of 486 So. 2d 1159 (George v. Breaux) 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
George v. Breaux, 486 So. 2d 1159, 1986 La. App. LEXIS 6611 (La. Ct. App. 1986).

Opinion

LABORDE, Judge.

Plaintiff-appellant, Joseph Morris George, appeals the judgment of the trial court dismissing his suit for the wrongful death of his alleged daughter, Danielle M. Perrault. The trial court sustained the exception of no right of action offered by defendants, Patricia Breaux and State Farm Mutual Automobile Insurance Company (State Farm). The trial court found that appellant failed to show that he was more probably than not the father of Danielle. We agree.

On October 4, 1982, in Carenero, Louisiana, Danielle M. Perrault, a minor, was struck by an automobile driven by defendant, Patricia Breaux. As a result of the accident, this four year old child was brought to the hospital where she died two hours later. Appellant thereafter brought suit against Ms. Breaux and her insurer, State Farm, alleging that he is the natural or biological father of Danielle. Appellant, a married man and father of two, concedes that Danielle was an illegitimate child and admits that he has never formally acknowledged or legitimated her. He asserts that [1161]*1161his biological relationship with Danielle can be inferred from his contacts with the child which he describes as “informal acknowledgment.”

The trial court heard testimony from several witnesses tending to show that appellant could be the father of Danielle. The testimony shows that appellant and Danielle’s mother, Jane Perrault, had sexual relations around the time of Danielle’s conception. Jane and appellant continued their relationship for several years. He would go to the Perrault household and visit with Jane and Danielle. Appellant asserts that he openly acknowledged that Danielle was his own and that he truly believes that he is her father.

It is apparent from the record that Ms. Perrault’s testimony was meant to assist appellant avow paternity. She noted that appellant would visit her family, but that the frequency of the visits plummeted when their relationship ended. She admitted that appellant was not her only beau near the time of Danielle’s conception. Another man, one Willie James Newsome, also enjoyed a liaison with Ms. Perrault. Ms. Perrault asserted two different months as the date of her last encounter with Mr. Newsome. She also stated that appellant gave her money and supported her (although no records of these alleged transactions could be produced) and that exhibits reflect the State, through the Welfare Department, in fact supported the family — not appellant.

We turn to appellant’s first assignment of error, which states:

“I. The Trial Court erred in finding that the plaintiff had no right of action because the plaintiff had not formally acknowledged the deceased child despite the finding of the Trial Court that the plaintiff had informally and tacitly acknowledged the child and believed the child to be his own, and did thereby require a burden of proof greater than that required by the law in paternity matters.”

Appellant asserts that he has firmly established his paternity through “informally acknowledging” Danielle. Moreover, appellant suggests that the trial court, incorrectly, would require parents of illegitimate children to formally acknowledge them in order to prove paternity.

In his oral reasons for judgment the trial court outlined the standard applied:

“The Court believes that there is a fifty/fifty chance Mr. George may be the father of this child; but is that sufficient [?] ... Mr. George is not plainly the father of the child ... [Mr. George] had many opportunities, I think, to publically [sic] declare this as my [sic] daughter. On the birth certificate, he could have gone to the Department of Health and entered his name. He could have gone before a Notary Public and made a declaration by authentic act....”

We find that the trial court properly applied the preponderance of the evidence standard in finding that appellant failed to carry his burden of proving paternity. We further find that the language referring to formal acknowledgment was merely preca-tory, i.e., that if the child had been formally acknowledged, no filiation suit would have been necessary. See La.C.C. art. 208.

Appellant relys primarily on two cases to support his claim of avowal of paternity: State v. Jefferson, 448 So.2d 907 (La.App.3d Cir.1984) and Succession of Matte, 346 So.2d 1345 (La.App.3d Cir.1977). These cases discuss the requirements of informal acknowledgment as sufficient proof of paternity. These cases stress the importance of (1) continuous or habitual acknowledgment, and (2) proof that the alleged father was generally reputed to be the father of the child. To this end, for informal acknowledgment1 to be found, [1162]*1162the parent must continuously and unequivocally recognize the child as his own. Id. at 1350.

Applying this test to the case sub judice, we find appellant’s proof of informal acknowledgment lacking. Appellant did not continuously and unequivocally recognize the child as his own. He led a double life, withholding any knowledge of the child from all but Ms. Perrault’s closest family members. The philandering appellant withheld all information of his other life from his legitimate family. This lack of disclosure concerning his affaire de co-eur necessarily precluded divulging information to his legitimate family regarding an enfant d’amour. Appellant stated that he never saw or visited Danielle out of the presence of Jane Perrault. He also disclosed that he never took her in public to picnics, to social events, or to church. Appellant did not unequivocably recognize the child as his own.

In addition to appellant’s equivocal recognition of Danielle, there was a showing that appellant was not Jane Perrault’s only paramour at the time of Danielle’s conception. Mr. Newsome, the “other man,” had absconded the state. His whereabouts and his blood type are unknown. The blood tests are therefore inconclusive. Appellant has not established filiation to the deceased child, Danielle, by a preponderance of the evidence.

We now turn to appellant’s second, third, and fourth assignments of error:

“II. The Trial Court erred in using the records of the natural mother through the use of the Department of Health and Human Resources client records as well as hertestimony regarding those records in an attempt to destroy the acknowledged status of the minor deceased child.
III. The Trial Court erred in using only the documents in the ‘welfare records’ of the Department of Health and Human Resources signed by the natural mother and erred in failing to consider the rest of the records and documents contained in the “welfare records” which would have corroborated her testimony at trial as to who was the natural father of the minor deceased child.
IV. The Trial Court erred in obtaining testimony of the natural mother through her testimony and submission of ‘welfare records’ by obtaining an improper grant of immunity in order to secure the testimony and documents of the Department of Health and Human Resources.”

Most of the witnesses testifying as to the avowal of paternity were presented by appellant. The trial court’s reasonable evaluation of their credibility should not be disturbed on appeal. State v. Jefferson, 448 So.2d 907, 908 (La.App. 3d Cir.1984).

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Bluebook (online)
486 So. 2d 1159, 1986 La. App. LEXIS 6611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/george-v-breaux-lactapp-1986.