State v. Lee

728 So. 2d 1042, 1999 La. App. LEXIS 329, 1999 WL 93349
CourtLouisiana Court of Appeal
DecidedFebruary 24, 1999
DocketNo. 31,859-JAC
StatusPublished

This text of 728 So. 2d 1042 (State v. Lee) 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. Lee, 728 So. 2d 1042, 1999 La. App. LEXIS 329, 1999 WL 93349 (La. Ct. App. 1999).

Opinion

liGASKINS, Judge.

The defendant, Durwood Lee, appeals from a ruling by the juvenile court, which found that the ten-year prescriptive period for enforcement of a child support judgment, under the recently enacted La. C.C. art. 3501.1, is applicable to the facts of this case. For the following reasons, we reverse the judgment of the juvenile court.

FACTS .

Vikki Lee (now Long) and Durwood Lee are the natural parents of the minor child, Lindsy Anne Lee. The couple divorced and a Texas child support order was entered on October 13, 1983. On July 6, 1990, the child was adopted by her stepfather, causing the support decree to lapse. On April 7, 1997, Vikki Long filed a Uniform Support Petition to collect past due child support under the Uniform Interstate Family Support Act (UIFSA).1 She filed the petition in the State of Alabama, where she was living. On that same date, an Alabama judge certified the petition and ordered the document transferred to Louisiana, where the defendant resides, for further proceedings. On January 15,1998, a petition was filed in Caddo Parish Juvenile Court, by the State of Louisiana, to register the foreign support order. The defendant filed an exception to the registration of the decree under La. Ch. C. art. 1306.7 A(7) and former La. C.C. art. 3497.1, claiming that an action to make executory arrear-ages of child support is subject to liberative prescription of five years. The defendant claimed that, since the child support order lapsed on July 6, 1990, with the adoption of his daughter by her stepfather, the action to collect child support arrearages prescribed on July 7, 1995, almost two years before the mother filed to enforce the order in Alabama. The defendant recognized that La. C.C. art. 3497.1 was amended and La. C.C. art. 3501.1 was |2enacted to provide a ten-year liberative prescription period for child support and the new article became effective July 3, 1997.2 However, the defendant argued that the petition to enforce the child support award was filed prior to the effective date of the amendment and, therefore, the five-year prescriptive period was applicable.

A juvenile court hearing officer considered the matter and found that the longer ten-year prescriptive period of La. C.C. art. 3501.1 applied. The hearing officer chose to recognize the filing for registration of the support enforcement order from Alabama, which occurred on January 15, 1998, as the date the action was commenced against the defendant. Because this date falls after the July 3, 1997 effective date of La. C.C. art. 3501.1, the hearing officer found that the claim had not entirely prescribed and recommended that the defendant owed the child support payments accruing from January 15, 1988 until July 5, 1990. The hearing officer calculated the amount due to be $4,200.00. The defendant objected to the recommendation of the hearing officer. The juvenile court adopted the recommendation in a judg[1044]*1044ment signed and filed July 8, 1998. The defendant appeals the juvenile court judgment.

PRESCRIPTION

The defendant argues that the juvenile court erred in applying the ten-year prescriptive period set forth in La. C.C. art. 3501.1 to the facts of this case. According to the defendant, the disputed issue in this case is whether the court should consider Mrs. Long’s filing of her Uniform Support Petition in Alabama or the state’s filing for registration of the Alabama papers as the point at which demand was made upon the defendant for payment of past due child support. The | .^defendant contends that the court should have applied the law in effect on April 7, 1997, when Mrs. Long instituted proceedings in Alabama to collect child support arrearag-es rather than the law in effect on January 15, 1998 when the state filed to register the foreign support decree. For the following reasons, we find that the claim to collect past due child support against the defendant prescribed prior to the effective date of La. C.C. art. 3501.1, which lengthened the prescriptive period in such matters. Therefore, the juvenile court erred in applying the new article to the facts of this case.

Legal Principles

Generally, the burden of proving that a suit has prescribed rests with the party pleading prescription. However, when the petition reveals prima facie that the claim has prescribed, the burden shifts to the opposing party to demonstrate suspension or interruption of the prescriptive period. Bishop v. Simonton, 615 So.2d 8 (La.App. 2d Cir.1993), writ denied 617 So.2d 908 (La.1993).

La. C.C. art. 6 provides the framework from which statutes are to be interpreted:

In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretive laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.

Statutes of prescription, being remedial in nature, generally apply to all actions instituted after the effective date, even though the cause of action accrued before the enactment of the legislation. Bishop v. Simonton, supra. Exceptions to this general rule of ret-roactivity for prescriptive statutes include instances where such application would strip a party of a vested right or would revive an already prescribed cause of action. More directly stated, a legislative act cannot revive a cause of action already barred by liberative prescription prior to the effective date Lof the statute. Hall v. Hall, 516 So.2d 119 (La.1987); Bishop v. Simonton, supra; G.B.F. v. Keys, 29,006 (La.App.2d Cir.1/22/97), 687 So.2d 632, writ denied 97-0385 (La.3/21/97), 691 So.2d 94. See also Gay v. C & D of Shreveport, 25,319 (La.App.2d Cir.10/26/94), 645 So.2d 280.

While the defendant does not acquire anything during the running of the prescriptive period, once the time period has elapsed, the legislature grants the defendant the right to plead the exception of prescription in order to defeat the plaintiffs claim. Because the defendant acquires the right to plead the exception of prescription, a change in that right constitutes a substantive change in the law as applied to the defendant. Chance v. American Honda Motor Company, Inc., 93-2582 (La.4/11/94), 635 So.2d 177. Were we to interpret the amendment at issue to allow the revival of prescribed causes of action, the substantial rights of the defendant would be materially changed because the defendant would be stripped of this defense. Chance v. American Honda Motor Company, Inc., supra; Cameron Parish School Board v. ACandS, Inc., 96-0895 (La.1/14/97), 687 So.2d 84.

Discussion

In applying these principles to the facts of this case, we find that the claim against the defendant for past due child support prescribed before the July 3,1997 effective date of the newly enacted La. C.C. art. 3501.1, and therefore, the defendant acquired the right to plead prescription. The parties agree that Louisiana statutes on prescription [1045]*1045apply to this case.3 There is also no dispute that the defendant’s obligation to pay child support for his minor daughter terminated on 15July 6, 1990, when the child was adopted by her stepfather. Under the law in effect at that time, La. C.C. art. 3497.1 provided a five-year prescriptive period to recover past due child support. Therefore, Mrs. Long had until July 6, 1995 to file against the defendant to recover past due child support arrearage.

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Related

Barfield v. Barfield
483 So. 2d 1085 (Louisiana Court of Appeal, 1986)
Gay v. C & D OF SHREVEPORT
645 So. 2d 280 (Louisiana Court of Appeal, 1994)
Bishop v. Simonton
615 So. 2d 8 (Louisiana Court of Appeal, 1993)
Hall v. Hall
516 So. 2d 119 (Supreme Court of Louisiana, 1987)
Chance v. American Honda Motor Co., Inc.
635 So. 2d 177 (Supreme Court of Louisiana, 1994)
Cameron Parish School Bd. v. Acands, Inc.
687 So. 2d 84 (Supreme Court of Louisiana, 1997)
GBF v. Keys
687 So. 2d 632 (Louisiana Court of Appeal, 1997)
In re Brinkman
717 So. 2d 681 (Louisiana Court of Appeal, 1998)

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Bluebook (online)
728 So. 2d 1042, 1999 La. App. LEXIS 329, 1999 WL 93349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lee-lactapp-1999.