STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-969
IN RE: SUCCESSION OF DONALD CLAY SMITH
**********
APPEAL FROM THE TWENTY-EIGHTH JUDICIAL DISTRICT COURT PARISH OF LASALLE, NO. 35,828 HONORABLE J. CHRISTOPHER PETERS, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and James T. Genovese, Judges.
Genovese, J., concurs in the result.
AFFIRMED.
Walter Evans Dorroh, Jr. P. O. Box 1889 Jena, LA 71342 Telephone: (318) 992-4107 COUNSEL FOR: Appellees- Angela Smith Appleby and Winnie Moore Smith
James L. Carroll P. O. Box 1619 Columbia, LA 71418 Telephone: (318) 649-9284 COUNSEL FOR: Appellant - Clayton Donnell Barnhill THIBODEAUX, Chief Judge.
Appellant, Clayton Donnell Barnhill, an alleged biological child of the
deceased, Donald Clay Smith, claims that the trial court erred by sustaining Winnie
Moore Smith and Angela Smith Appleby’s exception of prescription. Barnhill
maintains that the trial court erroneously interpreted the 2005 Civil Code amendment
that governs filiation actions.1 Reasoning that the amendment did not apply
retroactively so as to revive expired and extinguished filiation claims, the trial court
dismissed with prejudice Barnhill’s petition to amend the judgment of possession in
favor of Smith and Appleby. For the following reasons, we affirm.
I.
ISSUE
We shall consider whether the 2005 Civil Code amendment governing
filiation actions allowed a child, born outside of marriage, to bring a filiation action
in 2008 and thereby claim a portion of the intestate deceased’s estate where (1) the
child became twenty years of age in 1998, and (2) the deceased died in 2007.
II.
FACTS
Barnhill, born May 28, 1978, claims to be a biological child of the
deceased and Eunice Cruse Barnhill. At the time of Barnhill’s birth, the deceased
was married to Winnie Moore Smith, and Eunice Cruse Barnhill was married to
Johnny Barnhill. The deceased never acknowledged Barnhill as his child. Barnhill
never attempted to filiate to the deceased until this suit.
After the deceased’s death in 2007, his surviving spouse, Smith, and his
surviving child born of this marriage, Angela Smith Appleby, filed a petition for
1 2005 La. Acts No. 192, vacating La.Civ.Code art. 209 and adding La.Civ.Code art. 197. possession. The trial court issued a judgment of possession recognizing Smith as the
surviving spouse in community of the deceased and granting her a legal usufruct over
the undivided one-half interest of the deceased’s and all of the community property.
The trial court also recognized Appleby as the only heir of the deceased and placed
her in possession as the owner of all the deceased’s property, subject to her mother’s
usufruct.
Barnhill filed a petition to amend the judgment of possession and to
establish paternity. Alleging that he is a biological son of the deceased, Barnhill
requested disinterment of the deceased to collect his DNA for paternity testing. He
further demanded, as a biological child of the deceased, ownership of a one-half
interest in all of the deceased’s property.
Smith and Appleby filed an exception of prescription and peremption.
They asserted that at the time Barnhill passed the age of nineteen, he lost the right to
filiate under the law in effect at that time. Thus, they alleged that because Barnhill
could not establish paternity, he had no claim to the deceased’s estate. Agreeing with
Smith and Appleby, the trial court sustained their exception.
Barnhill appeals claiming that, based on the 2005 amendment to the
Civil Code, the applicable peremptive period is one year from the day of the death of
the alleged father, irrespective of the child’s age. Barnhill argues this peremptive
period applies because the deceased died after the amendment became effective.
III.
STANDARD OF REVIEW
Appellate courts review for manifest error judgments on the exception
of prescription. Credeur v. Champion Homes of Boaz, Inc., 08-1096 (La.App. 3 Cir.
3/4/09), 6 So.3d 339, writ denied, 09-1099 (La. 9/4/09), 17 So.3d 965. On the other
2 hand, courts review statutory interpretations de novo because they present questions
of law. Stewart v. Estate of Stewart, 07-333 (La.App. 3 Cir. 10/3/07), 966 So.2d
1241.
IV.
LAW AND DISCUSSION
The now-vacated La.Civ.Code art. 209 required a child not entitled to
legitimate filiation to institute filiation proceedings “within one year of the death of
the alleged parent or within nineteen years of the child’s birth, whichever first
occurs.” Our legislature substantively changed this law by the Filiation of Parents
and Children Act, effective June 29, 2005, No. 192, 2005 La. Acts 1444. The
legislature made changes expressed in that Act “applicable to all claims existing or
actions pending on its effective date and all claims arising or actions filed on and after
its effective date.” 2005 La. Acts No. 192, § 3 (emphasis added).
The current law reads that “for purposes of succession only,” the
peremptive period for a child to “institute an action to prove paternity[,] even though
he is presumed to be the child of another man[,]” is one year “from the day of the
death of the alleged father.” La.Civ.Code art. 197. Thus, under the prior law, the
child’s age was extremely important. The current law, on the other hand, requires the
child to bring the suit within one year of the parent’s death irrespective of the child’s
age. Because the alleged heir in this case reached the age of nineteen in 1997, at the
time the now-vacated La.Civ.Code art. 209 was in effect, the question is whether the
2005 amendment applies retroactively to revive this already-perempted filiation
action.
This and other Louisiana courts have already examined the 2005
amendment’s effect. Thus, where the alleged father died prior to the amendment, but
3 the children’s appeal was pending when the amendment became effective, this court
rejected the amendment’s applicability to the filiation actions of the alleged heirs who
were well beyond nineteen years of age. In re Succession of McKay, 05-603 (La.App.
3 Cir. 2/1/06), 921 So.2d 1219, writs denied, 06-504, 06-631 (La. 6/2/06), 929 So.2d
1252, 1253. This court explained that although, generally, prescriptive statutes are
procedural, once the prescriptive period elapses, a party acquires a right to plead the
exception of prescription. Id. (quoting Chance v. Am. Honda Motor Co., Inc., 93-
2582 p. 2 (La. 4/11/94), 635 So.2d 177, 178). A change in the right to plead the
exception is a substantive change in the law. Id. Because procedural statutes that
also change substantive law must be construed to apply only prospectively, we
required a clear and unequivocal expression of legislative intent for the statute to
apply retroactively. Id. This court concluded the language in section 3 of the
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-969
IN RE: SUCCESSION OF DONALD CLAY SMITH
**********
APPEAL FROM THE TWENTY-EIGHTH JUDICIAL DISTRICT COURT PARISH OF LASALLE, NO. 35,828 HONORABLE J. CHRISTOPHER PETERS, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and James T. Genovese, Judges.
Genovese, J., concurs in the result.
AFFIRMED.
Walter Evans Dorroh, Jr. P. O. Box 1889 Jena, LA 71342 Telephone: (318) 992-4107 COUNSEL FOR: Appellees- Angela Smith Appleby and Winnie Moore Smith
James L. Carroll P. O. Box 1619 Columbia, LA 71418 Telephone: (318) 649-9284 COUNSEL FOR: Appellant - Clayton Donnell Barnhill THIBODEAUX, Chief Judge.
Appellant, Clayton Donnell Barnhill, an alleged biological child of the
deceased, Donald Clay Smith, claims that the trial court erred by sustaining Winnie
Moore Smith and Angela Smith Appleby’s exception of prescription. Barnhill
maintains that the trial court erroneously interpreted the 2005 Civil Code amendment
that governs filiation actions.1 Reasoning that the amendment did not apply
retroactively so as to revive expired and extinguished filiation claims, the trial court
dismissed with prejudice Barnhill’s petition to amend the judgment of possession in
favor of Smith and Appleby. For the following reasons, we affirm.
I.
ISSUE
We shall consider whether the 2005 Civil Code amendment governing
filiation actions allowed a child, born outside of marriage, to bring a filiation action
in 2008 and thereby claim a portion of the intestate deceased’s estate where (1) the
child became twenty years of age in 1998, and (2) the deceased died in 2007.
II.
FACTS
Barnhill, born May 28, 1978, claims to be a biological child of the
deceased and Eunice Cruse Barnhill. At the time of Barnhill’s birth, the deceased
was married to Winnie Moore Smith, and Eunice Cruse Barnhill was married to
Johnny Barnhill. The deceased never acknowledged Barnhill as his child. Barnhill
never attempted to filiate to the deceased until this suit.
After the deceased’s death in 2007, his surviving spouse, Smith, and his
surviving child born of this marriage, Angela Smith Appleby, filed a petition for
1 2005 La. Acts No. 192, vacating La.Civ.Code art. 209 and adding La.Civ.Code art. 197. possession. The trial court issued a judgment of possession recognizing Smith as the
surviving spouse in community of the deceased and granting her a legal usufruct over
the undivided one-half interest of the deceased’s and all of the community property.
The trial court also recognized Appleby as the only heir of the deceased and placed
her in possession as the owner of all the deceased’s property, subject to her mother’s
usufruct.
Barnhill filed a petition to amend the judgment of possession and to
establish paternity. Alleging that he is a biological son of the deceased, Barnhill
requested disinterment of the deceased to collect his DNA for paternity testing. He
further demanded, as a biological child of the deceased, ownership of a one-half
interest in all of the deceased’s property.
Smith and Appleby filed an exception of prescription and peremption.
They asserted that at the time Barnhill passed the age of nineteen, he lost the right to
filiate under the law in effect at that time. Thus, they alleged that because Barnhill
could not establish paternity, he had no claim to the deceased’s estate. Agreeing with
Smith and Appleby, the trial court sustained their exception.
Barnhill appeals claiming that, based on the 2005 amendment to the
Civil Code, the applicable peremptive period is one year from the day of the death of
the alleged father, irrespective of the child’s age. Barnhill argues this peremptive
period applies because the deceased died after the amendment became effective.
III.
STANDARD OF REVIEW
Appellate courts review for manifest error judgments on the exception
of prescription. Credeur v. Champion Homes of Boaz, Inc., 08-1096 (La.App. 3 Cir.
3/4/09), 6 So.3d 339, writ denied, 09-1099 (La. 9/4/09), 17 So.3d 965. On the other
2 hand, courts review statutory interpretations de novo because they present questions
of law. Stewart v. Estate of Stewart, 07-333 (La.App. 3 Cir. 10/3/07), 966 So.2d
1241.
IV.
LAW AND DISCUSSION
The now-vacated La.Civ.Code art. 209 required a child not entitled to
legitimate filiation to institute filiation proceedings “within one year of the death of
the alleged parent or within nineteen years of the child’s birth, whichever first
occurs.” Our legislature substantively changed this law by the Filiation of Parents
and Children Act, effective June 29, 2005, No. 192, 2005 La. Acts 1444. The
legislature made changes expressed in that Act “applicable to all claims existing or
actions pending on its effective date and all claims arising or actions filed on and after
its effective date.” 2005 La. Acts No. 192, § 3 (emphasis added).
The current law reads that “for purposes of succession only,” the
peremptive period for a child to “institute an action to prove paternity[,] even though
he is presumed to be the child of another man[,]” is one year “from the day of the
death of the alleged father.” La.Civ.Code art. 197. Thus, under the prior law, the
child’s age was extremely important. The current law, on the other hand, requires the
child to bring the suit within one year of the parent’s death irrespective of the child’s
age. Because the alleged heir in this case reached the age of nineteen in 1997, at the
time the now-vacated La.Civ.Code art. 209 was in effect, the question is whether the
2005 amendment applies retroactively to revive this already-perempted filiation
action.
This and other Louisiana courts have already examined the 2005
amendment’s effect. Thus, where the alleged father died prior to the amendment, but
3 the children’s appeal was pending when the amendment became effective, this court
rejected the amendment’s applicability to the filiation actions of the alleged heirs who
were well beyond nineteen years of age. In re Succession of McKay, 05-603 (La.App.
3 Cir. 2/1/06), 921 So.2d 1219, writs denied, 06-504, 06-631 (La. 6/2/06), 929 So.2d
1252, 1253. This court explained that although, generally, prescriptive statutes are
procedural, once the prescriptive period elapses, a party acquires a right to plead the
exception of prescription. Id. (quoting Chance v. Am. Honda Motor Co., Inc., 93-
2582 p. 2 (La. 4/11/94), 635 So.2d 177, 178). A change in the right to plead the
exception is a substantive change in the law. Id. Because procedural statutes that
also change substantive law must be construed to apply only prospectively, we
required a clear and unequivocal expression of legislative intent for the statute to
apply retroactively. Id. This court concluded the language in section 3 of the
Filiation of Parents and Children Act that “[t]he provisions of this Act shall be
applicable to all claims existing or actions pending on its effective date and all claims
arising or actions filed on and after its effective date” expressed no such legislative
intent. Deciding that the alleged heirs’ claims for filiation prescribed when they
reached nineteen years of age, this court held that the 2005 amendment did not revive
their already-prescribed claims.
Although not a mandatory authority, our sister-jurisdiction has expressed
a similar sentiment regarding the 2005 amendment’s effect in In re Succession of
James, 07-2509 (La.App. 1 Cir. 8/21/08), 994 So.2d 120, writ denied, 08-2302 (La.
12/12/08), 996 So.2d 1119. There, the alleged heir was born in 1966. The alleged
heir filed a filiation action in 2007, within one year of her alleged father’s death and
after the 2005 amendment became effective. There, the court rejected the alleged
heir’s argument that because it was a succession proceeding, her claim was not a true
4 action for filiation but one to establish her heirship status: “the cause of action here
is one to establish paternity or filiation; a prerequisite action necessary before Ms.
Thibodeaux [the alleged biological daughter of the deceased] can qualify as an heir.”
Id. at 125. Moreover, the court held that the Filiation of Parents and Children Act’s
command to apply the amendment’s changes to all claims existing or actions pending
on its effective date “refers to existing or viable causes of action and does not denote
a matter that has prescribed or been perempted.” Id. at 125 (citing Cameron Parish
Sch. Bd. v. ACandS, Inc., 96-895 (La. 1/14/97), 687 So.2d 84). The court concluded
that La.Civ.Code art. 209, in effect at the time the alleged heir reached nineteen years
of age, extinguished her cause of action more than twenty years before she filed the
suit.
Like the alleged heir in In re Succession of James, 994 So.2d 120,
Barnhill strenuously attempts to convince this court that his right to inherit is
independent from his right to filiate. Thus, Barnhill argues that because the right to
inherit does not arise until the death of a parent, this court should allow him “to
exercise a lawful previously non-existent right to inherit.”
Certainly, a right to inherit and a right to filiate are different rights. Yet,
Barnhill urges us to put the proverbial cart before the horse. As the James court
correctly observed, in the case where the deceased is not an established parent, a
filiation action is necessary before the alleged heir may assert the right to inherit.
Thus, Barnhill does not have a “lawful previously non-existent right to inherit” until
he proves his filiation to the deceased.
Here, Barnhill’s right to bring a filiation action was extinguished and
ceased to exist nineteen years after his birth. Once that occurred, Smith and Appleby
acquired the right to plead the exception of prescription. Passage of the 2005
5 amendment brought a substantive change to a party’s right to plead the exception.
Contrary to Barnhill’s assertions, the Filiation of Parents and Children Act’s
command to apply the amendment’s changes to “all claims existing or actions
pending on its effective date” did not clearly and unequivocally express the
legislature’s intent to apply the 2005 amendment retroactively so as to revive his
claim. We reiterate this court’s pronouncement in In re Succession of McKay, 921
So.2d 1219, and our sister jurisdiction’s holding in In re Succession of James, 994
So.2d 120, that, based on the language in section 3 of the Filiation of Parents and
Children Act, the amendment applies to viable causes of action and not to ones that
have already been extinguished. Unlike the mythological phoenix, Barnhill’s filiation
claim cannot rise from the ashes. Therefore, we find the trial court did not manifestly
err by sustaining Smith and Appleby’s exception of prescription.
V.
CONCLUSION
The trial court’s dismissal of Clayton Donnell Barnhill’s suit with
prejudice is affirmed. Costs of this appeal are assessed to Clayton Donnell Barnhill.