Guillory v. Fuselier

549 So. 2d 920, 1989 La. App. LEXIS 1704, 1989 WL 116244
CourtLouisiana Court of Appeal
DecidedOctober 4, 1989
DocketNo. 88-679
StatusPublished
Cited by2 cases

This text of 549 So. 2d 920 (Guillory v. Fuselier) 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
Guillory v. Fuselier, 549 So. 2d 920, 1989 La. App. LEXIS 1704, 1989 WL 116244 (La. Ct. App. 1989).

Opinion

DOMENGEAUX, Judge.

Sherryl Guillory filed this paternity suit, alleging the defendant, Eddie Fuselier, is the father of her minor child, Jonathan Edward Guillory. After plaintiff presented her case, the trial judge granted a directed verdict for the defendant and dismissed plaintiffs case with prejudice. Because we find that the trial judge erred in not ordering the parties to submit to blood testing, we reverse and remand for a new trial.

FACTS

Sherryl Guillory and Eddie Fuselier first met in 1981. At that time, plaintiff was only seventeen years old and defendant was married to someone else. Consequently, nothing developed between them as a result of this initial meeting. Their paths crossed again in 1985, when defendant was divorced. According to plaintiff, the couple had sexual relations on three occasions during that year: in July, on Thanksgiving night, and on New Year’s Eve. Plaintiff explained these liaisons corresponded with the semester breaks during her attendance at USL. She claims the final rendezvous resulted in the conception of Jonathan Edward, who was born on September 27, 1986.

The defendant admitted to having sex with the plaintiff, but on only one occasion in September of 1985. He contends he cannot be the father of Jonathan Edward because the child was born approximately one year after the couple’s sole sexual encounter.

On the morning of trial, plaintiff’s counsel requested the record be kept open after the presentation of evidence that day to allow the parties to submit to blood testing. The trial judge stated he would defer ruling on this request until after the trial. At the close of plaintiff’s case, which consisted only of the plaintiff’s testimony and the defendant’s cross-examination, the trial [922]*922judge denied the request for blood tests, granted a directed verdict for defendant and dismissed plaintiffs suit with prejudice.

Plaintiff appeals this ruling, arguing two assignments of error:

(1) The trial judge erred when he denied plaintiffs timely motion for a blood test to determine paternity.

(2) The trial judge erred when he opined that to prove paternity, plaintiff must prove “open continuous cohabitation”.

BLOOD TESTS

Plaintiff argues that the mandatory language of La.R.S. 9:3961 requires the trial judge to grant a party’s timely request for blood tests. Defendant argues that granting plaintiffs request, which was made on the morning of trial, would have unduly delayed these proceedings, and therefore, under the terms of the statute, the trial judge properly denied the request.

A review of the record reveals that the morning of trial was not the first time plaintiff requested scientific testing. This suit was filed on May 20, 1987. On May 29, 1987, plaintiff ruled defendant into court to show cause why he should not be required to submit to such tests. Pursuant to this rule, the parties executed a consent judgment which ordered Sherryl Guillory, Eddie Fuselier and Jonathan Edward Guil-lory to submit to testing at Savoy Medical Center in Mamou, Louisiana. This judgment was signed by the trial judge on August 5, 1987. It did not specify the date on which the tests were to be conducted.

At trial, plaintiff presented evidence which showed she made at least one attempt to comply with this judgment. She testified that in October of 1987 she obtained written authorizations required for the tests from her doctor and from her son’s pediatrician. These documents were admitted into evidence as P-1. Plaintiff testified she then went to Savoy Medical Center with her son and other members of her family at a time agreed upon by defendant, but the defendant never appeared. Furthermore, she was informed by the Medical Center personnel that the facility was not equipped to perform the tests.

We find the execution of this consent judgment by all parties amounted to a timely request for blood tests as required by La.R.S. 9:396. We note this judgment, as approved and signed by the trial judge, did not contain a time limitation nor did it impose an affirmative obligation on the plaintiff regarding its enforcement. Under these circumstances, the trial court should have enforced the judgment as written by ordering the parties to submit to blood testing.

Defendant further argues that even if plaintiff could produce blood tests indicating a high probability of paternity she would not have met her burden of proof at trial because her case consisted only of her testimony and that of the defendant under cross-examination. He cites La.R.S. 9:397.-3(D), which read at the time of trial:

If the court finds that the conclusion of all the experts as disclosed by the reports, based on the tests, are that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly.' If the experts disagree in their findings or conclusions, the question shall be submitted upon all the evidence. The test and the testimony of the mother alone shall not be sufficient grounds for determining that the man is the father of the child.

[923]*923In Acts 1988, No. 298, § 1, the legislature deleted the final sentence of that paragraph.

Defendant contends this statute, as it read prior to the 1988 amendment, required the mother to produce more than her own testimony, even if the blood tests, as interpreted by experts, indicated a high probability of paternity.

The Second Circuit has recently held that the 1988 amendment which deleted the final sentence of La.R.S. 9:397.3(D) is procedural in nature, and therefore, it should be applied retroactively. State v. Pesina, 541 So.2d 370 (La.App. 2nd Cir. 1989). We agree with this holding. Accordingly we find the disputed sentence to be inapplicable in the instant case. Additionally, we find the defendant’s interpretation of La.R.S. 9:397.3(D), as it read at the time of trial, is not supported either by the prior language of the statute or by the jurisprudence which interpreted it. See State v. Bolden, 519 So.2d 362 (La.App. 2nd Cir.1988).

La.R.S. 9:397.3(D) concerns a court’s disposition of the case after the experts who are to interpret the blood tests have testified. The blood tests, without expert interpretation, are meaningless to the court. Where there is no expert testimony to interpret the test results, and the only other evidence before the court is the uncorroborated testimony of the mother, then the disputed sentence merely recognized the plaintiff did not meet the burden of proving paternity by a preponderance of the evidence.

Nor is defendant’s position supported by the case he cites, Johnson v. Gant, 516 So.2d 1275 (La.App. 2nd Cir.1987). In Johnson the only evidence presented to the court was the conflicting testimony of the parties, the testimony of plaintiff’s mother that the defendant once gave the child a Bible, and the testimony of plaintiff’s expert, who concluded there was only a seventy-nine percent relative probability that the defendant was the father of the child. In that case, the Second Circuit correctly concluded the plaintiff failed to establish paternity by a preponderance of evidence, where the plaintiff’s uncorroborated testimony was combined with a relatively low paternity index.

If anything, Johnson illustrates how crucial the blood test results are to the resolution of this dispute.

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Related

Landrum v. Matthews
612 So. 2d 854 (Louisiana Court of Appeal, 1992)
State v. Montgomery
574 So. 2d 1297 (Louisiana Court of Appeal, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
549 So. 2d 920, 1989 La. App. LEXIS 1704, 1989 WL 116244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guillory-v-fuselier-lactapp-1989.