KAREN COHEN KINNETT NO. 17-CA-625
VERSUS FIFTH CIRCUIT
JARRED BRANDON KINNETT COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 768-195, DIVISION "E" HONORABLE JOHN J. MOLAISON, JR., JUDGE PRESIDING
March 23, 2018
PER CURIAM
Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois
APPEAL STAYED AND SOLE ISSUE REMANDED FHW SMC JGG COUNSEL FOR PLAINTIFF/APPELLEE, KAREN COHEN KINNETT Allison K. Nestor
COUNSEL FOR DEFENDANT/APPELLEE, JARRED BRANDON KINNETT Tracy G. Sheppard Jacqueline F. Maloney
COUNSEL FOR INTERVENOR/APPELLANT, KEITH EDWARD ANDREWS Thomas A. Robichaux Stephanie A. Fratello Sharon L. Andrews Desiree M. Valenti
COUNSEL FOR MINOR/APPELLEE, G. J. K., MINOR CHILD Ramona G. Fernandez WICKER, J.
Appellant-Intervenor, the biological father of G.J.K,1 seeks review of the
trial court’s judgment sustaining the exception of peremption filed by Appellee-
Defendant, G.J.K.’s legal father, resulting in a dismissal of Appellee-Intervenor’s
petition to establish paternity. For the following reasons, given the unique facts of
this case and in the interest of justice and judicial economy, we stay the pending
appeal of the trial court’s judgment sustaining the exception of peremption and
remand this matter to the trial court so as to afford the parties the opportunity to
properly challenge the constitutionality of La. C.C. art. 198, which sets forth the
period of time within which a biological father must institute an action to establish
his paternity.
FACTUAL AND PROCEDURAL BACKGROUND
This is an avowal action by an unmarried man, K.A., to establish paternity of
a child, G.J.K. At the time of G.J.K.’s birth, his biological mother was married to
J.B.K. On January 20, 2017, the child’s mother filed a petition for divorce from
J.B.K. In the petition for divorce, the mother sought joint custody of the couple’s
first child, B.A.K., and sole custody of her second child, G.J.K.2
On February 10, 2017, K.A. filed his “Petition In Intervention to Establish
Paternity and to Obtain Custody Rights,” asserting that he and the child’s mother
had an intimate relationship in November of 2014, during the mother’s marriage to
J.B.K., and that the child’s mother concealed from K.A. that he was in fact
G.J.K.’s biological father. K.A. attached to his petition a DNA test report
1 Pursuant to Uniform Rules-Courts of Appeal Rule 5-2, we will use the initials of all parties to protect the minor’s identity and to ensure the confidentiality of the minor who is a party to and whose interests are the subject matter of the proceedings on appeal. 2 In her petition for divorce, the mother further sought child support from J.B.K. for their first child, B.A.K., but did not seek any financial support for her second child, G.J.K., who is the subject of this litigation.
17-CA-625 1 confirming that he is G.J.K’s biological father to a scientific certainty of
99.999999998%.
On February 21, 2017, J.B.K. filed “Exceptions of No Cause and/or No
Right of Action, Prescription, Peremption to the Verified Petition In Intervention to
Establish Paternity and to Obtain Custody[],” contending that K.A.’s petition, filed
more than one year from the time of G.J.K.’s birth, was prescribed or perempted as
a matter of law under La. C.C. art. 198.3
On March 23, 2017, the trial court issued a judgment appointing the Stuart
H. Smith Law Clinic and Center for Social Justice through Loyola University
School of Law to represent G.J.K. On April 12, 2017, approximately three weeks
later, J.B.K.’s various exceptions were heard before the Domestic Commissioner.
The Commissioner issued a judgment on April 13, 2017, overruling J.B.K.’s
exception of no right of action, overruling in part his exception of no cause of
action as to the paternity action and sustaining in part his exception of no cause of
action as to the custody claims. The Commissioner further sustained the exception
of peremption, finding that K.A.’s right to establish paternity was perempted under
the time limitations provided in La. C.C. art. 198.
K.A. filed an Objection to the Commissioner’s ruling, contending in part
that the “time limitations in Civil Code article 198 are constitutionally invalid.”
At the trial on J.B.K.’s exceptions to K.A.’s petition, K.A.’s counsel asked
the trial court to rule on the constitutionality of the statute, contending that the time
limitations provided in La. C.C. art. 198 unconstitutionally infringe upon a
biological father’s right to parent. J.B.K.’s counsel objected to the consideration of
3 La. C.C. art. 198, in pertinent part, provides: 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.
17-CA-625 2 K.A.’s constitutional argument because K.A. had failed to timely notify the
attorney general of a challenge to the constitutionality of La. C.C. 198 as required
under La. C.C.P. art. 1880. Thereafter, K.A.’s counsel orally moved for additional
time to permit notification to the attorney general and further plead the
constitutionality issue. The trial judge refused this oral request.
Following the trial on J.B.K.’s exceptions, at which the trial judge did not
consider the constitutional arguments raised due to the aforementioned failure to
properly notice an indispensable party, the trial judge issued a written judgment
sustaining J.B.K.’s exception of peremption and finding that K.A.’s petition to
establish paternity was perempted under La. C.C. art. 198.4
DISCUSSION
Our review of the record and the briefs filed by the parties in this matter
reveals that this litigation, which involves Louisiana’s unique dual paternity
principle, implicates both the constitutional issue of the right of a father to parent
as well as the concomitant constitutional rights of a child. See Troxel v. Granville,
530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49, 56 (2000).
In Reeder v. North,5 97-0239 (La. 10/21/97), 701 So.2d 1291, 1299-1300,
relying on Vallo v. Gayle Oil Co., Inc., 94-1238 (La. 11/30/94), 646 So.2d 859,
864-865, the Louisiana Supreme Court reiterated the long-standing jurisprudential
rule of law:
4 The trial court’s June 27, 2017 judgment further overruled the exception of no right of action and the exception of no cause of action as to the paternity claim but sustained the exception of no cause of action as to the custody claim. After the lodging of the appeal, this Court ordered that the trial judge amend the written judgment to include the required decretal language that K.A.’s claims were dismissed. 5 In Reeder, like here, the plaintiff first raised the unconstitutionality of the statute in an opposition memorandum to defendant’s exception of prescription/peremption in the trial court.
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KAREN COHEN KINNETT NO. 17-CA-625
VERSUS FIFTH CIRCUIT
JARRED BRANDON KINNETT COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 768-195, DIVISION "E" HONORABLE JOHN J. MOLAISON, JR., JUDGE PRESIDING
March 23, 2018
PER CURIAM
Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois
APPEAL STAYED AND SOLE ISSUE REMANDED FHW SMC JGG COUNSEL FOR PLAINTIFF/APPELLEE, KAREN COHEN KINNETT Allison K. Nestor
COUNSEL FOR DEFENDANT/APPELLEE, JARRED BRANDON KINNETT Tracy G. Sheppard Jacqueline F. Maloney
COUNSEL FOR INTERVENOR/APPELLANT, KEITH EDWARD ANDREWS Thomas A. Robichaux Stephanie A. Fratello Sharon L. Andrews Desiree M. Valenti
COUNSEL FOR MINOR/APPELLEE, G. J. K., MINOR CHILD Ramona G. Fernandez WICKER, J.
Appellant-Intervenor, the biological father of G.J.K,1 seeks review of the
trial court’s judgment sustaining the exception of peremption filed by Appellee-
Defendant, G.J.K.’s legal father, resulting in a dismissal of Appellee-Intervenor’s
petition to establish paternity. For the following reasons, given the unique facts of
this case and in the interest of justice and judicial economy, we stay the pending
appeal of the trial court’s judgment sustaining the exception of peremption and
remand this matter to the trial court so as to afford the parties the opportunity to
properly challenge the constitutionality of La. C.C. art. 198, which sets forth the
period of time within which a biological father must institute an action to establish
his paternity.
FACTUAL AND PROCEDURAL BACKGROUND
This is an avowal action by an unmarried man, K.A., to establish paternity of
a child, G.J.K. At the time of G.J.K.’s birth, his biological mother was married to
J.B.K. On January 20, 2017, the child’s mother filed a petition for divorce from
J.B.K. In the petition for divorce, the mother sought joint custody of the couple’s
first child, B.A.K., and sole custody of her second child, G.J.K.2
On February 10, 2017, K.A. filed his “Petition In Intervention to Establish
Paternity and to Obtain Custody Rights,” asserting that he and the child’s mother
had an intimate relationship in November of 2014, during the mother’s marriage to
J.B.K., and that the child’s mother concealed from K.A. that he was in fact
G.J.K.’s biological father. K.A. attached to his petition a DNA test report
1 Pursuant to Uniform Rules-Courts of Appeal Rule 5-2, we will use the initials of all parties to protect the minor’s identity and to ensure the confidentiality of the minor who is a party to and whose interests are the subject matter of the proceedings on appeal. 2 In her petition for divorce, the mother further sought child support from J.B.K. for their first child, B.A.K., but did not seek any financial support for her second child, G.J.K., who is the subject of this litigation.
17-CA-625 1 confirming that he is G.J.K’s biological father to a scientific certainty of
99.999999998%.
On February 21, 2017, J.B.K. filed “Exceptions of No Cause and/or No
Right of Action, Prescription, Peremption to the Verified Petition In Intervention to
Establish Paternity and to Obtain Custody[],” contending that K.A.’s petition, filed
more than one year from the time of G.J.K.’s birth, was prescribed or perempted as
a matter of law under La. C.C. art. 198.3
On March 23, 2017, the trial court issued a judgment appointing the Stuart
H. Smith Law Clinic and Center for Social Justice through Loyola University
School of Law to represent G.J.K. On April 12, 2017, approximately three weeks
later, J.B.K.’s various exceptions were heard before the Domestic Commissioner.
The Commissioner issued a judgment on April 13, 2017, overruling J.B.K.’s
exception of no right of action, overruling in part his exception of no cause of
action as to the paternity action and sustaining in part his exception of no cause of
action as to the custody claims. The Commissioner further sustained the exception
of peremption, finding that K.A.’s right to establish paternity was perempted under
the time limitations provided in La. C.C. art. 198.
K.A. filed an Objection to the Commissioner’s ruling, contending in part
that the “time limitations in Civil Code article 198 are constitutionally invalid.”
At the trial on J.B.K.’s exceptions to K.A.’s petition, K.A.’s counsel asked
the trial court to rule on the constitutionality of the statute, contending that the time
limitations provided in La. C.C. art. 198 unconstitutionally infringe upon a
biological father’s right to parent. J.B.K.’s counsel objected to the consideration of
3 La. C.C. art. 198, in pertinent part, provides: 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.
17-CA-625 2 K.A.’s constitutional argument because K.A. had failed to timely notify the
attorney general of a challenge to the constitutionality of La. C.C. 198 as required
under La. C.C.P. art. 1880. Thereafter, K.A.’s counsel orally moved for additional
time to permit notification to the attorney general and further plead the
constitutionality issue. The trial judge refused this oral request.
Following the trial on J.B.K.’s exceptions, at which the trial judge did not
consider the constitutional arguments raised due to the aforementioned failure to
properly notice an indispensable party, the trial judge issued a written judgment
sustaining J.B.K.’s exception of peremption and finding that K.A.’s petition to
establish paternity was perempted under La. C.C. art. 198.4
DISCUSSION
Our review of the record and the briefs filed by the parties in this matter
reveals that this litigation, which involves Louisiana’s unique dual paternity
principle, implicates both the constitutional issue of the right of a father to parent
as well as the concomitant constitutional rights of a child. See Troxel v. Granville,
530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49, 56 (2000).
In Reeder v. North,5 97-0239 (La. 10/21/97), 701 So.2d 1291, 1299-1300,
relying on Vallo v. Gayle Oil Co., Inc., 94-1238 (La. 11/30/94), 646 So.2d 859,
864-865, the Louisiana Supreme Court reiterated the long-standing jurisprudential
rule of law:
4 The trial court’s June 27, 2017 judgment further overruled the exception of no right of action and the exception of no cause of action as to the paternity claim but sustained the exception of no cause of action as to the custody claim. After the lodging of the appeal, this Court ordered that the trial judge amend the written judgment to include the required decretal language that K.A.’s claims were dismissed. 5 In Reeder, like here, the plaintiff first raised the unconstitutionality of the statute in an opposition memorandum to defendant’s exception of prescription/peremption in the trial court. Like here, after a hearing, the trial court nonetheless held that Reeder’s action was perempted. When Reeder appealed the ruling to this Court, he also filed a motion to stay the appeal and remand the matter to the trial court so that he could amend and supplement his petition to specifically plead the unconstitutionality of the statute. On appeal, this Court reversed the trial court’s ruling, held that Reeder’s action was not perempted, and remanded the matter for trial. In the quoted opinion, the Supreme Court reversed this Court, reinstated the trial court’s judgment sustaining the exception of peremption, but remanded to the trial court to allow the plaintiff time to amend and supplement his petition.
17-CA-625 3 [A] statute must first be questioned in the trial court, not the appellate courts, and the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized.
***
However, the law takes a liberal approach toward allowing amended pleadings in order to promote the interests of justice. Whitnell v. Menville, 540 So. 2d 304, 309 (La. 1989). La. C.C.P. art. 934 provides as follows: When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.
Given the lifetime impact this litigation will have upon the parties involved,
particularly the minor child, G.J.K, we find, in the interest of justice and judicial
economy, that K.A. should be allowed the opportunity to amend his petition and
appropriately challenge the constitutionality of La. C.C. art. 198 in the trial court.6
DECREE
For the foregoing reasons, in accordance with La. C.C.P. art. 934 and the
jurisprudence, in the interest of justice and judicial economy, we stay the pending
appeal and pretermit review of the trial court’s judgment sustaining the exception
of peremption and remand this matter to the trial court solely to afford the parties
the opportunity to properly challenge the constitutionality of La. C.C. art. 198 and
to give notice to the attorney general pursuant to La. C.C.P. art. 1880.
Accordingly, the matter is remanded to the trial court solely for proceedings
consistent with the reasons articulated in this opinion.
APPEAL STAYED AND SOLE ISSUE REMANDED
6 It is not our intent to afford the parties the opportunity to relitigate the facts of the case presented at the trial court hearing on the exception.
17-CA-625 4 SUSAN M. CHEHARDY CHERYL Q. LANDRIEU
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON FREDERICKA H. WICKER JUDE G. GRAVOIS CHIEF DEPUTY CLERK MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ ROBERT M. MURPHY STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY MARCH 23, 2018 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
17-CA-625 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE JOHN J. MOLAISON, JR. (DISTRICT JUDGE) LEONARD L. LEVENSON (APPELLEE) STEPHANIE A. FRATELLO (APPELLANT) JACQUELINE F. MALONEY (APPELLEE) SHARON L. ANDREWS (APPELLANT) ALLISON K. NESTOR (APPELLEE) DESIREE M. VALENTI (APPELLANT) THOMAS A. ROBICHAUX (APPELLANT)
MAILED TRACY G. SHEPPARD (APPELLEE) CHRISTIAN W. HELMKE (APPELLEE) RAMONA G. FERNANDEZ (APPELLEE) ATTORNEY AT LAW DONNA R. BARRIOS (APPELLEE) ATTORNEY AT LAW 412 DOLHONDE STREET ATTORNEYS AT LAW STUART H. SMITH LAW CLINIC & GRETNA, LA 70053 424 GRAVIER STREET CENTER FOR SOCIAL JUSTICE FIRST FLOOR 540 BROADWAY STREET NEW ORLEANS, LA 70130 NEW ORLEANS, LA 70118