Jenkins v. Jackson

216 So. 3d 1082, 16 La.App. 5 Cir. 482, 2017 WL 696071, 2017 La. App. LEXIS 318
CourtLouisiana Court of Appeal
DecidedFebruary 22, 2017
DocketNO. 16-CA-482
StatusPublished
Cited by13 cases

This text of 216 So. 3d 1082 (Jenkins v. Jackson) 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
Jenkins v. Jackson, 216 So. 3d 1082, 16 La.App. 5 Cir. 482, 2017 WL 696071, 2017 La. App. LEXIS 318 (La. Ct. App. 2017).

Opinion

JOHNSON, J.

_JjPlaintiff/Appellant, Mark .Anthony Jenkins, Sr., appeals the sustaining of peremptory exceptions of res judicata and no cause of action in favor of Defendant/Ap-[1084]*1084pellee, Latasha Jackson, resulting in the dismissal of his petition for nullification in the 24th Judicial District Court, Division “A”. For the following reasons, we affirm the dismissal of the petition for nullification.

FACTS AND PROCEDURAL HISTORY

The pertinent facts of this extensive matter are as follows:

Mark Anthony Jenkins, Sr. and Latasha Jackson began them relationship while Ms. Jackson was in high school. During the time of their sexual involvement, Ms. Jackson became pregnant. On September 18, 1997, Mark Anthony Jenkins, Jr. (hereinafter referred to as “Mark, Jr.”) was born to Latasha Jackson. According to Mr. Jenkins, he signed an acknowledgement of paternity establishing filiation to Mark, Jr., and the acknowledgement was filed by November 1997.1 The following year, on May 31, 1998, Mr. Jenkins and Ms. Jackson were married. At some point, the parties separated, and Ms. Jackson obtained a judgment of child support against Mr. Jenkins on October 27, 2003. Mr. Jenkins and Ms. Jackson were divorced on April 13, 2004.

On February 15, 2012, Mr. Jenkins filed a “Petition for Revocation of Acknowledgement of Paternity, for Damages Due to Fraud under C.C. art. 2315, and for Restoration of Payments Not Due under C.C. art. 2299” in the 24th Judicial District Court. In his petition, Mr. Jenkins alleged that Ms. Jackson fraudulently concealed the truth about the paternity of Mark, Jr. and obtained child support while knowing that another man, Samuel Scott, was the biological father. He also alleged that he mistakenly signed the acknowledgement of paternity for Mark, Jr. [2In addition, Mr. Jenkins sought to have his acknowledgement of paternity revoked, monetary damages from Ms. Jackson, and a court order for a paternity test for himself and Mark, Jr.

In opposition to the petition for revocation, Ms. Jackson filed an “Exception of Prescription and/or No Cause/Right of Action.” In her exception, Ms. Jackson argued that Mr. Jenkins’ right to revoke the formal act of acknowledgement was per-empted because he failed to disavow Mark Jr. within 180 days of the marriage; thus, he had neither a right of action nor cause of action to revoke the acknowledgement. The matter was heard by a domestic commissioner. In a judgment rendered on July 5, 2012, the domestic commissioner sustained the exception of prescription but overruled the exceptions of no cause of action and no right of action. Mr. Jenkins filed a “Motion for New Trial,” which was heard on September 13, 2012. A new trial was granted, and the matter was set for arguments.2 On October 15, 2012, the domestic commissioner rendered a judgment in favor of Mr. Jenkins, which overruled Ms. Jackson exception of prescription. Ms. Jackson objected to the domestic commissioner’s ruling.

[1085]*1085The matter was heard by the trial court on January 16, 2013. In a judgment rendered on January 22, 2013, the trial court overruled Ms. Jackson’s exception of prescription. The trial court also ordered genetic testing and assigned costs for the test. Ms. Jackson sought supervisory review of the trial court’s judgment.

In Jenkins v. Jackson, 13-296 (La. App. 5 Cir. 5/14/13) (unpublished writ disposition), writ not considered, 13-1835 (La. 8/22/13); 122 So.3d 1009, this Court granted Ms. Jackson’s writ application in part, reversing the trial court’s ruling on the exception of prescription and rendering a ruling that sustained the | {¡exception. Citing J.P. v. C.E., 12-20 (La.App. 3 Cir. 5/2/12); 94 So.3d 107, this Court found that the two-year prescriptive period in La. R.S. 9:406 should apply prospectively from its effective date, which was August 15, 2008. Because Mr. Jenkins did not file his petition to revoke until February 15, 2012, which was well over the two years from the effective date, Mr. Jenkins’ action to revoke his acknowledgement of paternity was prescribed. This Court also vacated the order for genetic testing and remanded the matter to the trial court for determination of whether Mr. Jenkins was entitled to the genetic testing pursuant to applicable law, specifically La. R.S. 9:396. Upon remand, Mr. Jenkins filed a “Motion for Court to Rule on Petitioner’s Previous Motion for Genetic Testing under R.S. 9:396.” The trial court granted the motion and ordered that Mr. Jenkins, Ms. Jackson and Mark, Jr. submit to the genetic testing.3

On September 11, 2013, Mr. Jenkins filed a “Motion to Amend Petition to Annul Judgment of Juvenile Court.”4 In that motion, Mr. Jenkins alleged that he filed a petition to nullify child support in the juvenile court; however, he was informed by the court that the nullification had to take place in the district court. Mr. Jenkins sought to amend his original petition filed, which was filed in the trial court, to include a request for damages for mental anguish and nullification of the judgment of child support rendered in the juvenile court. The motion was heard by the trial court and granted on November 25, 2013.

Mr. Jenkins subsequently filed a “Petition for Nullification of the Judgment of the Fifth Circuit which Reversed a Judgment of This Court” on June 25, 2014. In that petition, Mr. Jenkins sought to annul the portion of the May 14, 2013 writ disposition of this Court that found his right to revoke the acknowledgement prescribed. He alleged that his acknowledgement of paternity was signed at the | ¿hospital after Mark, Jr. was born, but the only copy of the acknowledgement was destroyed during Hurricane Katrina, while in the possession of the State.5 Mr. Jenkins sought to have the judgment of this Court annulled on the basis that it did not consider whether the form of the acknowledgement was by authentic act.

On October 14, 2014, Mr. Jenkins filed a “Rule to Show Cause Why Plaintiffs Name Should Not Be Removed from the Birth Certificate and Why An Expert Should Not be Appointed to Calculate Probability of Paternity.” In that pleading, Mr. Jenkins requested that, since the ge[1086]*1086netic testing ordered by the court showed that he cannot be Mark, Jr.’s biological father, the testing be admitted into evidence, the signing of the birth certificate be given no legal effect, and his name be removed from the birth certificate. Mr. Jenkins also requested that an expert be allowed to use Samuel Scott’s DNA report 6 to calculate the probability of paternity, and Ms. Jackson be cast with the costs of the genetic testing.

In opposition to Mr. Jenkins’ petition to revoke acknowledgement and rule to show cause, Ms. Jackson filed an “Exception of Prescription,” arguing that Mr. Jenkins’ cause of action was prescribed under the ten-year liberative prescriptive period. She also argued that fraud was not a procedural avenue that could be used to vitiate the birth certificate; specifically, Mr. Jenkins could have ascertained the truth regarding his paternity of Mark, Jr. prior to signing the birth certificate.

A hearing on Mr. Jenkins’ rule to show cause was held on January 21, 2015.

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216 So. 3d 1082, 16 La.App. 5 Cir. 482, 2017 WL 696071, 2017 La. App. LEXIS 318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jenkins-v-jackson-lactapp-2017.