Leger v. Leger

215 So. 3d 773, 15 La.App. 3 Cir. 151, 2015 La. App. LEXIS 1908
CourtLouisiana Court of Appeal
DecidedSeptember 30, 2015
DocketNo. 15-151
StatusPublished
Cited by1 cases

This text of 215 So. 3d 773 (Leger v. Leger) 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
Leger v. Leger, 215 So. 3d 773, 15 La.App. 3 Cir. 151, 2015 La. App. LEXIS 1908 (La. Ct. App. 2015).

Opinion

SAVOIE, Judge.

11Appellant John Jerome Fontenot appeals the ruling of the trial court, wherein the court ruled that he did not have a right to avow his paternity of Gracelynn Leger pursuant to Louisiana Civil Code article 198. For the following reasons, we affirm.

Michael Leger and Danielle Gotreaux Leger were married in 2007. Three children were born during the marriage—Michael Joseph Leger, III, born January 4, 2007, Gracelynn Ann Leger, born August 21, 2012, and Emilee Camille Leger, born March 1, 2014. In the fall of 2011, John Jerome Fontenot, a local veterinarian, and Danielle Leger had an affair. During that time, Danielle became pregnant with Gra-celynn Leger. Dr. Fontenot submitted to a DNA test in October 2012, just two months after the birth, to determine whether he was the father of Gracelynn. The results indicated that there was a 99.99% percent probability that Dr. Fonte-not was Gracelynn’s father.

Michael and Danielle separated in August 2013. Danielle was pregnant with Emilee at the time of the separation. When Emilee was born in March 2014, the Department of Children and Family Services (“DCFS”) removed her from Danielle’s care because she tested positive for cocaine. Michael was working offshore at the time of the birth. When the infant was removed, a DCFS worker contacted Dr. Fontenot to take custody of Gracelynn because he was identified by Danielle’s mother as the father of Gracelynn.

On March 3, 2014, Michael was served with a petition for custody of Gracelynn, which alleged that Dr. Fontenot was Gra-celynn’s father. This was when Michael first became aware of the affair between Dr. Fontenot and Danielle and, that he might not be Gracelynn’s father.

12Panielle also told Michael that he was not the father of the newborn Emilee. Danielle told DCFS that Emilee was Dr. Fontenot’s child. However, DNA testing confirmed that Emilee was, in fact, the biological child of Michael.

Eventually, all three children were placed in Michael’s custody. During a hearing officer’s conference on the petition for custody in April 2014, the parties agreed on a visitation schedule for Dr. Fontenot and Gracelynn. No further action was taken in that matter.

In May 2014, Michael filed a petition for divorce against Danielle alleging adultery. Dr. Fontenot filed a Petition for Intervention, for Paternity, Custody, and Alternatively, Visitation. In the petition, Dr. Fon-tenot alleged that he was unable to file a timely avowal action because he feared for the safety of Danielle and Gracelynn. Michael filed a Peremptory Exception of Per-emption, No Right of Action, and No Cause of Action. The exception was withdrawn in relation to the visitation issue; however, the exception to the avowal action was heard on September 30, 2014.

The trial court ruled that La.Civ.Code art. 198 precluded Dr. Fontenot from establishing paternity of Gracelynn. The exception of preemption was granted. Dr. Fontenot now appeals.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Dr. Fontenot argues that the trial court erred when it held that La.Civ.Code art. 198 [775]*775precludes an avowal action when the mother deceives the biological father by telling him that she and the child would be in physical danger if her husband learned that the child was fathered by another man.

IsLouisiana Civil Code Article 198 reads:

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.
In all cases, the action shall be instituted no later than one year from the day of the death of the child.
The time periods in this Article are peremptive.

Generally, an avowal action may be brought at any time. However, La.Civ. Code art. 198 establishes a time period for filing such an action in two instances—if the child is presumed to be the child of another man and if the child dies. The first scenario applies to the instant case. “The husband of the mother is presumed to be the father of a child born during the marriage[.]” La. Civ.Code art. 185. Louisiana Civil Code Article 198 specifies that an action must be instituted “within one year from the day of the birth of the child” in this instance.

Michael and Danielle were married at the time of Gracelynn’s birth. In accordance with the above statute, Dr. Fontenot had one year from the birth of Gracelynn to file his avowal action. He did not do so. There is one exception to the one year time period. If the mother, in bad faith, deceives the father concerning his paternity, the father must institute an action within one year from the day he knew or should have known of the birth of the child or within ten years of the child’s birth, whichever first occurs. La.Civ.Code art. 198.

|4It is Dr. Fontenot’s contention that his avowal action was timely due to this exception. He believed that Danielle and Grace-lynn would be in physical danger if he were to expose the fact that he was Grace-lynn’s father. This was the reason he delayed the institution of the avowal action. He argues that the exception found in La.Civ.Code art. 198 should extend to these circumstances, .We disagree.

While Dr. Fontenot’s situation is unfortunate, the law is clear. Only “if the mother in bad faith deceived the father of the child regarding his paternity” does the exception apply. Id. (emphasis added). There is no evidence that Danielle deceived Dr. Fontenot regarding his paternity. She may have deceived Dr. Fontenot regarding the consequences of disclosing his paternity; however, Dr. Fontenot knew he was Gracelynn’s father. Within two months of Gracelynn’s birth, Dr. Fontenot submitted to a DNA test that clearly showed he was the child’s father. Furthermore, in his petition for intervention, Dr. Fontenot acknowledges that he knew that he is Gracelynn’s father for more than a year since her birth.

Even if we were to conclude that Danielle deceived Dr. Fontenot regarding his paternity, which we do not, the law requires that “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.” [776]*776Id. It is fair to say that Dr. Fontenot knew or should have known that he was Grace-lynn’s father when the DNA testing was conducted in October 2012.

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Related

Leger v. Leger
258 So. 3d 624 (Louisiana Court of Appeal, 2017)

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Bluebook (online)
215 So. 3d 773, 15 La.App. 3 Cir. 151, 2015 La. App. LEXIS 1908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leger-v-leger-lactapp-2015.