STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
JAC 12-767 consolidated with CA 12-768
IN RE: PETITION OF K.A.T. AND D.M.G., ETC.
Consolidated With
K.A.T., ET AL.
VERSUS
R.B.F., ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. A-20080037 C/W C-20103279 HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.
AFFIRMED.
Randy Paul Angelle Christi M. Roy Hemphill Boyer, Hebert, Abels & Angelle 401 East Mills Breaux Bridge, LA 70517 (337) 332-0616 COUNSEL FOR APPELLANTS: K.A.T. D.M.G. Diane Sorola 402 W. Convent St. Lafayette, LA 70501 (337) 234-2355 COUNSEL FOR APPELLEES: R.B.F. C.N.F. Charles G. Fitzgerald Cox Fitzgerald, L.L.C. 113 West Convent Street Lafayette, LA 70501 (337) 233-9743 COUNSEL FOR APPELLANTS: K.A.T. D.M.G.
Bradley Richard Regional Administrator 825 Kaliste Saloom, Bldg 1, #2 Lafayette, LA 70508 COUNSEL FOR APPELLEE: Dept of Children & Family Services EZELL, Judge.
The biological mother and father in this intrafamily adoption proceeding filed a
petition to annul the adoption. They now appeal a trial court judgment which
sustained the adoptive parents’ exception of prescription and ruled that the law of the
case doctrine applied.
FACTS
B.M.G. was born to K.A.T. and D.M.G. on October 30, 2007. 1 On May 22,
2008, the biological parents filed a joint petition for voluntary transfer of custody of
the child from the father to the mother. The next day a petition for intrafamily
adoption was filed by the maternal grandmother and her husband, C.N.F. and R.B.F.
Both the biological mother and father signed authentic acts of consent to the adoption
before a notary and two witnesses.
On March 11, 2009, a judgment of adoption in favor of C.N.F. and R.B.F. was
signed. An amended judgment of adoption was signed on March 31, 2009, in order to
correct the spelling of the child’s name.
On May 13, 2010, in a separate proceeding, the biological mother and father
filed a petition to annul the intrafamily adoption alleging fraud and duress. This
proceeding was consolidated with the custody and adoption proceeding. The trial
court then ordered that the parties appear in court to determine whether any legal error
existed which would nullify the final decree of adoption. On June 2, 2010, the trial
court found that there was no legal error which would nullify the adoption. The trial
court then determined that a hearing was necessary to determine whether there was
fraud or duress.
The adoptive parents filed several exceptions alleging no cause of action and
vagueness. The biological parents responded with amending petitions. The biological 1 Pursuant to Uniform Rules−Courts of Appeal, Rule 5-1(a), we are using initials of the parties involved in this adoption proceeding. parents also filed a motion to recuse the presiding judge alleging that he would be
called as a witness at the hearing on the annulment. After a hearing, the judge was
recused.
On November 11, 2010, the biological parents filed an ex parte motion to
rescind the adoption judgment and the amended adoption judgment. For the first time
they alleged that the statutory requirements of La.Ch.Code art. 1243 had not been met.
Specifically, they alleged that prior to filing the petition for adoption, the adoptive
parents had not had physical custody of the minor child for at least six months as
required by La.Ch.Code art. 1243(A)(3). The biological parents allege that the trial
court lacked subject matter jurisdiction due to the absence of this statutory
requirement and that therefore, the adoption judgments were null and void.
The adoptive parents filed an exception of res judicata due to the June 2, 2010
ruling of the trial court that there was no authority “for the court to grant an annulment
of the judgment based upon the occurrence of the commission of a legal error.” A
hearing on the exception of res judicata was held on February 27, 2012. At that time
the adoptive parents withdrew the exception of res judicata since the June 2, 2010
ruling was an interlocutory judgment and not a final judgment. However, they orally
raised issues of law of the case and prescription.
The trial court granted the exception of prescription in addition to finding that
the law of the case doctrine applied. A judgment was signed on April 4, 2012. It is
from this judgment that the biological parents appeal.
PRESCRIPTION
The biological parents argue that the trial court erred in granting the adoptive
parents’ exception of prescription for two reasons. First, they argue that La.Code
Civ.P. art. 2002 and not La.Code Civ.P. art. 2004 applies. Specifically, they argue
2 that the trial court lacked the power and authority, i.e. subject matter jurisdiction, to
grant the adoption because the statutory requirements of La.Ch.Code art. 1243 had not
been met. Specifically, they argue that the adoptive parents did not have custody of
the minor child for six months prior to filing the petition for adoption. La.Ch.Code art.
1243(A)(3). The biological parents argue that this created an absolutely null
judgment which could be annulled at any time.
Secondly, the biological parents claim that La.Ch.Code art. 1263(B) and not
La.Code Civ.P. art. 2004 is applicable to their claims of fraud and duress. We will
discuss each of these arguments separately.
Application of La.Code Civ.P. art. 2002
Louisiana Code of Civil Procedure Article 2002(A)(3) provides that a final
judgment rendered by a court which lacked subject matter jurisdiction over the suit
shall be annulled. Furthermore, the action to annul such a judgment can be brought at
any time. La.Code. Civ.P. art. 2002(B).
“Jurisdiction over the subject matter is the legal power and authority of a court
to hear and determine a particular class of actions or proceedings, based upon the
object of the demand, the amount in dispute, or the value of the right asserted.”
La.Code Civ.P. art. 2.
Whether the child had been living with the adoptive parents for six months at
the time of the filing of the petition for adoption has nothing to do with whether the
district court had subject matter jurisdiction to hear an adoption case. Rather, it is a
premature action.
The objection of prematurity raises the issue of whether the judicial right of
action has yet to come into existence because some prerequisite condition has not
been fulfilled, and prematurity is determined by the facts existing at the time suit is
3 filed. Riveria v. Bolden’s Transp. Serv., Inc., 11-1669 (La.App. 1 Cir. 6/28/12), 97
So.3d 1096. The right to file for intrafamily adoption by a grandparent and
stepgrandparent does not accrue until they have had custody for six months.
La.Ch.Code art. 1243(A)(3). Since the adoptive parents filed the petition less than
six months after having custody, their action was premature because it was brought
before the right to enforce the claim had accrued. La.Code Civ.P. art. 423. Therefore,
an exception of prematurity rather than a petition for annulment of judgment based on
La.Code Civ.P. art. 2002 for lack of subject matter jurisdiction was the proper
procedural device to use.
An objection to the prematurity of an action is raised by a dilatory exception.
La.Code Civ.P. art. 926(A)(1).
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
JAC 12-767 consolidated with CA 12-768
IN RE: PETITION OF K.A.T. AND D.M.G., ETC.
Consolidated With
K.A.T., ET AL.
VERSUS
R.B.F., ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. A-20080037 C/W C-20103279 HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.
AFFIRMED.
Randy Paul Angelle Christi M. Roy Hemphill Boyer, Hebert, Abels & Angelle 401 East Mills Breaux Bridge, LA 70517 (337) 332-0616 COUNSEL FOR APPELLANTS: K.A.T. D.M.G. Diane Sorola 402 W. Convent St. Lafayette, LA 70501 (337) 234-2355 COUNSEL FOR APPELLEES: R.B.F. C.N.F. Charles G. Fitzgerald Cox Fitzgerald, L.L.C. 113 West Convent Street Lafayette, LA 70501 (337) 233-9743 COUNSEL FOR APPELLANTS: K.A.T. D.M.G.
Bradley Richard Regional Administrator 825 Kaliste Saloom, Bldg 1, #2 Lafayette, LA 70508 COUNSEL FOR APPELLEE: Dept of Children & Family Services EZELL, Judge.
The biological mother and father in this intrafamily adoption proceeding filed a
petition to annul the adoption. They now appeal a trial court judgment which
sustained the adoptive parents’ exception of prescription and ruled that the law of the
case doctrine applied.
FACTS
B.M.G. was born to K.A.T. and D.M.G. on October 30, 2007. 1 On May 22,
2008, the biological parents filed a joint petition for voluntary transfer of custody of
the child from the father to the mother. The next day a petition for intrafamily
adoption was filed by the maternal grandmother and her husband, C.N.F. and R.B.F.
Both the biological mother and father signed authentic acts of consent to the adoption
before a notary and two witnesses.
On March 11, 2009, a judgment of adoption in favor of C.N.F. and R.B.F. was
signed. An amended judgment of adoption was signed on March 31, 2009, in order to
correct the spelling of the child’s name.
On May 13, 2010, in a separate proceeding, the biological mother and father
filed a petition to annul the intrafamily adoption alleging fraud and duress. This
proceeding was consolidated with the custody and adoption proceeding. The trial
court then ordered that the parties appear in court to determine whether any legal error
existed which would nullify the final decree of adoption. On June 2, 2010, the trial
court found that there was no legal error which would nullify the adoption. The trial
court then determined that a hearing was necessary to determine whether there was
fraud or duress.
The adoptive parents filed several exceptions alleging no cause of action and
vagueness. The biological parents responded with amending petitions. The biological 1 Pursuant to Uniform Rules−Courts of Appeal, Rule 5-1(a), we are using initials of the parties involved in this adoption proceeding. parents also filed a motion to recuse the presiding judge alleging that he would be
called as a witness at the hearing on the annulment. After a hearing, the judge was
recused.
On November 11, 2010, the biological parents filed an ex parte motion to
rescind the adoption judgment and the amended adoption judgment. For the first time
they alleged that the statutory requirements of La.Ch.Code art. 1243 had not been met.
Specifically, they alleged that prior to filing the petition for adoption, the adoptive
parents had not had physical custody of the minor child for at least six months as
required by La.Ch.Code art. 1243(A)(3). The biological parents allege that the trial
court lacked subject matter jurisdiction due to the absence of this statutory
requirement and that therefore, the adoption judgments were null and void.
The adoptive parents filed an exception of res judicata due to the June 2, 2010
ruling of the trial court that there was no authority “for the court to grant an annulment
of the judgment based upon the occurrence of the commission of a legal error.” A
hearing on the exception of res judicata was held on February 27, 2012. At that time
the adoptive parents withdrew the exception of res judicata since the June 2, 2010
ruling was an interlocutory judgment and not a final judgment. However, they orally
raised issues of law of the case and prescription.
The trial court granted the exception of prescription in addition to finding that
the law of the case doctrine applied. A judgment was signed on April 4, 2012. It is
from this judgment that the biological parents appeal.
PRESCRIPTION
The biological parents argue that the trial court erred in granting the adoptive
parents’ exception of prescription for two reasons. First, they argue that La.Code
Civ.P. art. 2002 and not La.Code Civ.P. art. 2004 applies. Specifically, they argue
2 that the trial court lacked the power and authority, i.e. subject matter jurisdiction, to
grant the adoption because the statutory requirements of La.Ch.Code art. 1243 had not
been met. Specifically, they argue that the adoptive parents did not have custody of
the minor child for six months prior to filing the petition for adoption. La.Ch.Code art.
1243(A)(3). The biological parents argue that this created an absolutely null
judgment which could be annulled at any time.
Secondly, the biological parents claim that La.Ch.Code art. 1263(B) and not
La.Code Civ.P. art. 2004 is applicable to their claims of fraud and duress. We will
discuss each of these arguments separately.
Application of La.Code Civ.P. art. 2002
Louisiana Code of Civil Procedure Article 2002(A)(3) provides that a final
judgment rendered by a court which lacked subject matter jurisdiction over the suit
shall be annulled. Furthermore, the action to annul such a judgment can be brought at
any time. La.Code. Civ.P. art. 2002(B).
“Jurisdiction over the subject matter is the legal power and authority of a court
to hear and determine a particular class of actions or proceedings, based upon the
object of the demand, the amount in dispute, or the value of the right asserted.”
La.Code Civ.P. art. 2.
Whether the child had been living with the adoptive parents for six months at
the time of the filing of the petition for adoption has nothing to do with whether the
district court had subject matter jurisdiction to hear an adoption case. Rather, it is a
premature action.
The objection of prematurity raises the issue of whether the judicial right of
action has yet to come into existence because some prerequisite condition has not
been fulfilled, and prematurity is determined by the facts existing at the time suit is
3 filed. Riveria v. Bolden’s Transp. Serv., Inc., 11-1669 (La.App. 1 Cir. 6/28/12), 97
So.3d 1096. The right to file for intrafamily adoption by a grandparent and
stepgrandparent does not accrue until they have had custody for six months.
La.Ch.Code art. 1243(A)(3). Since the adoptive parents filed the petition less than
six months after having custody, their action was premature because it was brought
before the right to enforce the claim had accrued. La.Code Civ.P. art. 423. Therefore,
an exception of prematurity rather than a petition for annulment of judgment based on
La.Code Civ.P. art. 2002 for lack of subject matter jurisdiction was the proper
procedural device to use.
An objection to the prematurity of an action is raised by a dilatory exception.
La.Code Civ.P. art. 926(A)(1). The right to file the exception of prematurity is
waived if not pleaded prior to an answer or along with the filing of any pleading
seeking relief other than the entry or removal of an attorney, an extension of time,
security for costs or dissolution of an attachment issued on the ground of nonresidence
of a defendant. La.Code Civ.P. art. 928(A). The biological parents waived the right
to raise this argument because they never alleged the action was premature until after
the filing of several petitions to annul the adoption.
Application of La.Ch.Code art. 1263(B)
The biological parents contend that their petition to annul the intrafamily
adoption was timely as it was filed within six months from their discovery of the
alleged fraud and duress and within two years from the date the final decree of
adoption was granted.
Louisiana Children’s Code Article 1263(B) provides:
An action to annul a final decree of adoption based upon a claim of fraud or duress perpetrated by an adoptive parent must be brought within six months from discovery of the fraud or duress and in no event later
4 than two years from the date of the signing of the final decree or mailing of the judgment when required.
The comments to La.Ch.Code art. 1263 provide that the purpose of the preemptive
periods “is to provide greater certainty and earlier finality to adoption decrees.”
The biological parents have alleged that they did not know what they were
signing when they each signed separate authentic acts of consent to adoption in May
2008. They have alleged that they thought they were signing custody documents and
that the consent to adoption verifications had been slipped into the stack of documents
they were signing. They claim that they did not have knowledge of the adoption
proceedings until the attorney provided the biological mother with a copy of the
petition for adoption on May 3, 2010.
The documents clearly stated “AUTHENTIC ACT OF CONSENT TO
ADOPTION.” Even if we find that the biological parents had no idea that they were
signing adoption papers, the record indicates that the parents were advised by the
signing judge that that were agreeing to the adoption of their child and would lose all
rights regarding the child.
At the hearing on the motion to recuse Judge Edwards as a potential witness
held on May 4, 2011, Judge Edwards testified regarding his memory of the hearing
with the parties concerning the final decree of adoption. The hearing was held on
March 11, 2009, but there was no minute entry and the hearing was not transcribed.
In their pleadings, both the biological mother and father admit they were present at
this hearing. It was explained to Judge Edwards at the hearing that the mother was
unstable in a number of ways and that it was best for the grandparents to adopt the
child. Judge Edwards testified that he even inquired if the mother was sure she
wanted to do this and explained to her that it could not be “undone.” Judge Edwards
testified that he was convinced that the mother knew that her child was being adopted 5 and that adoption was forever. Once all the parties agreed, he signed the judgment of
adoption. At least by the date of this hearing on May 11, 2009, the biological parents
knew that their child had been adopted.
The biological parents filed their first petition to annul the adoption on May 13,
2010. This is a year after they had met with the trial judge for the signing of the final
adoption papers. Pursuant to La.Ch.Code art. 1263(B), the time limit for filing an
action to annul a final decree of adoption based upon a claim of fraud or duress
perpetrated by an adoptive parent had passed. The trial court was correct in
sustaining the exception of prescription as to the biological parents’ petition to annul
the adoption.
Since we find that the biological parents’ claims have prescribed, there is no
need for us to discuss the other issues they have raised on appeal.
For these reasons, the judgment of the trial court is affirmed. Costs of this
appeal are assed to K.A.T. and D.M.G.