State v. Frisard

694 So. 2d 1032, 1997 WL 206164
CourtLouisiana Court of Appeal
DecidedApril 29, 1997
Docket96-CA-368
StatusPublished
Cited by8 cases

This text of 694 So. 2d 1032 (State v. Frisard) 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
State v. Frisard, 694 So. 2d 1032, 1997 WL 206164 (La. Ct. App. 1997).

Opinion

694 So.2d 1032 (1997)

STATE of Louisiana and Debra A. Rojas
v.
Emile C. FRISARD, III.

No. 96-CA-368.

Court of Appeal of Louisiana, Fifth Circuit.

April 29, 1997.

*1033 Michel Morel, Assistant District Attorney, Parish of Jefferson, Gretna, for Plaintiffs-Appellees.

Emile C. Frisard, III, Metairie, pro se.

Before GAUDIN, DUFRESNE and CANNELLA, JJ.

DUFRESNE, Judge.

Defendant, Emile C. Frisard, III, appeals a Judgment declaring him to be the father of the minor child, A.D.W., as well as a subsequent Judgment ordering him to pay support to the minor child. We affirm the paternity Judgment, but reverse the child support Judgment and remand the matter for recalculation due to lack of adequate documentation in the record before us.

BACKGROUND

This case was instituted pursuant to the provisions of the Uniform Reciprocal Enforcement of Support Act (URESA), as set forth in LSA-Ch.C. arts. 1301, et seq.[1] In the fall of 1992, the state of Florida filed a URESA petition on behalf of plaintiff, Debra A. Rojas, with the Jefferson Parish Juvenile Court, seeking the establishment of paternity, child support and medical coverage for her minor child, A.D.W. In the supporting paternity affidavit, plaintiff alleged that defendant was the father of the child, that the child was conceived in September of 1983,[2] that she did not have sexual intercourse with any other man within the thirty days prior to or subsequent to the date of conception, that she was not married at the time of the child's birth, and that the child resembled the defendant insofar as she had the same birthmark and facial features.

Defendant was eventually served with the petition and appeared in court for a paternity hearing in January of 1994, at which time he denied paternity. Following numerous pre-trial motions and discovery matters, the case, on December 11, 1995, proceeded to trial for a determination of the paternity issue. Having considered the law and evidence presented, the juvenile court judge on January 17, 1996, issued a written Judgment finding defendant to be the father of the minor child, A.D.W. Defendant thereafter filed a Motion for Reconsideration and Admission of Evidence which was denied by the trial judge.

In accordance with the finding of paternity, the court, on February 26, 1996, conducted a hearing to determine the amount of support. As a result of the support hearing, the court ordered defendant to pay $436.81 per month in child support retroactive to the date of the filing of the petition, resulting in arrears in the amount of $17,909.21. The judge thereafter ordered defendant to pay $100.00 per month toward his arrears and $25.00 per month toward the cost of blood work which amounted to $314.00. In addition, *1034 defendant was assessed 5% court costs. As a result of this Judgment, defendant filed a Motion for Rehearing and Admission of Evidence which was denied by the trial judge.

Defendant, who has represented himself pro se throughout most of these proceedings, now appeals, asserting four assignments of error.

DETERMINATION OF PATERNITY

Defendant initially complains about the trial court's determination that he is the father of A.D.W. He specifically alleges that the trial court, in making its finding of paternity, failed to consider the "true conception date," and also relied on inaccurate testimonies and substantive facts in her reasons for judgment. Defendant additionally objects to the trial judge's conclusions as to witness credibility and to her characterization of his testimony as incredible without giving any reasons for that finding.

The fact of paternity obliges a father to support his child. Dubroc v. Dubroc, 388 So.2d 377 (La.1980); LSA-C.C. art. 240. However, the fact of paternity must be proved by a preponderance of the evidence. LSA-C.C. art. 209(A); State v. Tantillo, 620 So.2d 346 (La.App. 5 Cir.1993). Simply stated, it must be shown that paternity by the defendant is more probable than not. State, Dept. of Social Services v. Thomas, 27,248 (La.App. 2 Cir. 8/23/95), 660 So.2d 163. Although alone insufficient to prove paternity, scientific testing provides persuasive and objective evidence that can help establish paternity by a preponderance of the evidence. LeBlanc v. LeBlanc, 497 So.2d 1361 (La. 1986); McKenzie v. Thomas, 95 2226 (La. App. 1 Cir. 6/28/96), 678 So.2d 42, writ denied, 96-1855 (La.10/25/96), 681 So.2d 372. Proof of paternity is a factual question, and a trial court's determination of the issue should not be disturbed, absent manifest error. Litton v. Litton, 624 So.2d 472 (La.App. 2 Cir. 1993), writ denied, 93-2657 (La.1/7/94), 631 So.2d 456.

Since defendant alleges that the trial judge relied on inaccurate testimonies and substantive facts in making her finding of paternity, we will now review in its entirety the testimony and evidence adduced at the December 11, 1995 paternity hearing. At that hearing, Ann Ruiz, a paternity worker with the Jefferson Parish District Attorney's Office, testified that she arranged the court-ordered blood work through Gentest Laboratories, and that the results of the blood test showed a 99.994% probability that defendant is the father of A.D.W.

In addition, Liz Ocker, a URESA supervisor with the Jefferson Parish District Attorney's Office, testified that plaintiff went through the Florida authorities to file her paternity affidavit in which she alleged that defendant was the father and that she had sexual relations with him. Ms. Ocker testified that plaintiff named defendant as the father in the paternity affidavit as well as in every interrogatory that she was asked to complete.

After the testimony of Ms. Ocker, defendant began the presentation of his case by calling his sister, Barbara Ryals, who testified that during August and the early part of September of 1983, she and her siblings, including defendant, took shifts staying with their sick parents at East Jefferson General Hospital. According to Ms. Ryals, plaintiff, a nursing assistant at the hospital, became very interested in their family, to the point of being abnormally friendly. Ms. Ryals further testified that during this time frame, her brother spent every night at the hospital, that he was not dating anyone to her knowledge, and that she never saw any displays of affection between her brother and plaintiff. Additionally, she testified that defendant did not have a birthmark on his leg as alleged by plaintiff.

Defendant then called Betty Planchard, his other sister, as a witness. After the parties stipulated that her testimony would be the same as that of Barbara Ryals, the court allowed her to testify about her perspective of plaintiff. She testified that during her parents' hospital stay, plaintiff frequented her parents' room to the point of being bothersome; however, she persuaded her brother not to report the nurse since they were relying on the people in the hospital for their parents' care. Ms. Blanchard also testified *1035 that defendant did not have a birthmark on his leg.

Defendant continued the presentation of his case by calling Joseph Fradella, who testified that one night in the summer of 1983, he went to East Jefferson Hospital to pick up some medicine from defendant, a veterinarian, for his sick pet. After he got the medicine from defendant in the hallway, he asked defendant for directions to the nearest bathroom. Defendant directed him to his mother's hospital room. When Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
694 So. 2d 1032, 1997 WL 206164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-frisard-lactapp-1997.