Suarez v. Acosta

194 So. 3d 626, 15 La.App. 5 Cir. 750, 2016 La. App. LEXIS 507, 2016 WL 1078244
CourtLouisiana Court of Appeal
DecidedMarch 16, 2016
DocketNo. 15-CA-750
StatusPublished
Cited by8 cases

This text of 194 So. 3d 626 (Suarez v. Acosta) 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
Suarez v. Acosta, 194 So. 3d 626, 15 La.App. 5 Cir. 750, 2016 La. App. LEXIS 507, 2016 WL 1078244 (La. Ct. App. 2016).

Opinion

JUDE G, GRAVOIS, Judge, .

INTRODUCTION

| aPlaintiff/appellant, Carlos Suarez, appeals the trial court’s June 2, 2015 judgment that maintained defendant/appellee, Alvin. Acosta’s,, peremptory exception of prescription/peremption in.. this paternity/avowal action brought by Mr. Suarez. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Alvin Acosta and Suyapa Casco Acosta (“Suyapa”) were married on January 21, 2007.1 On February 14, 2007, Adriana Acosta Was born to Suyapa. Mr. Acosta is listed as Adriana’s father on her birth certificate. On April 24,2012, Suyapa died of leukemia.

On February 13, 2015, Mr. Suarez filed a “Petition for Paternity Suit, Child Custody and Child Support” against Mr. Acosta.2 Pertinent to his patemity/avowal suit, Mr. Suarez alleged that prior to the Acos-tas’ marriage, he maintained a ^relationship with Suyapa that resulted in the conception and birth of Adriana. He further alleged that he was “intentionally deceived” by Suyapa as to his status as Adriana’s biological father, In March of 2014, he was, told by a co-worker, Trenella Daigs, that he was Adriana’s biological father. As a result of learning this information, “he underwent-DNA testing.” According to the petition, “the results of the DNA test proved with 99.999999% certainty” that Mr. Suarez is Adriana’s biological father.3 Thus, Mr. Suarez alleges that he could not have known that Adriana was his child until he received the DNA test results proving his paternity.

In response, on March 25, 2015, Mr. Acosta filed exceptions of no cause and/or no right of action, and prescription and/or peremption4 as to Mr. Suarez’s paternity/avowal action concerning Adriana. A hearing on the exceptions was held before the domestic commissioner on April 15, 2015.

Both Mr. Acosta and Mr. Suarez testified at the hearing before the domestic commissioner. Mr. Acosta testified that he met Suyapa in 2004 when they both worked at Pep Boys. They became engaged in 2006 and married in 2007. They had two children, Adriana and Gabriella.5 Mr. Acosta testified that his name is on both childrén’s birth certificates,, and they both call him “Daddy.” Mr. Suarez also worked at Pep Boys. Mr. Acosta testified that during the time he and Suyapa were dating and later married, Mr. Suarez and Suyapa were “best friends,” and Mr. Suarez would call her “every day to tell her good morning.” However, as far as Mr. Acosta knew, there was no ongoing sexual [629]*629relationship between Mr. Suarez and Suya-pa.

|4Mr. Acosta further testified that- on January 23, 2007, two days after he and Suyapa were married and before Adriana was born, he received a call from a lady claiming to be Mr. Suarez’s girlfriend who informed him that Suyapa was calling Mr. Suarez and claiming that Adriana was Mr. Suarez’s child. Mr. Acosta called Suyapa to ask her about these claims. She told him to “hold on,” and a few minutes later, Mr. Acosta received a call from Mr. Suarez. According to Mr. Acosta, during their phone conversation, after learning that Mr. Acosta and Suyapa had gotten married, Mr. Suarez told Mr. Acosta that the child was his, and he was going to force Mr. Acosta to take a DNA test. Thereafter, sometime between that phone call and when Adriana was born, while Mr. Acosta was picking Suyapa up from work, Mr. Suarez personally confronted Mr, Acosta. During their confrontation, Mr. Suarez first claimed that Suyapa had been with him that morning. He then told Mr. Acosta that if the baby was born on a specific due date, then it was his child, and he was going to force Mr. Acosta to take a DNA test. Mr. Acosta testified -that he did not talk to Mr. Suarez again until after Suyapa passed away, more than five years later. To his knowledge, prior to this suit, Mr. Suarez did not bring any legal action or make a formal request for a DNA test, though Mr. Suarez could have found Mr. Acosta if he needed to.

Mr. Suarez testified before the domestic commissioner that he met Suyapa -at Pep Boys sometime in 1997 or 1998, and he began having a sexual relationship with her sometime in late 2001 or 2002. It was an “on and off thing.” He admitted to having sex with Suyapa in 2006, even after she became pregnant. Once Adriana was born, they no longer had a physical relationship. He testified that he spoke to Mr. Acosta in 2005 or 2006, but “[he didn’t] think [he] made any threats or any allegations of [him] being the father,” because he had not yet learned Suyapa was pregnant. When he learned that she was pregnant, he asked her twice if the child |Bwas his, and she told him that the child was not his. He testified that both conversations that Mr. -Acosta testified about “never -happened.” He also testified that he did not learn that he was the-child’s father .until a co-worker told him of such in March of 2014. According' to Mr. Suarez, his coworker was told this information by Suya-pa sometime , before her death -and by her mother, Mrs. Casco, and when asked about proof, Mr. .Suarez stated that they were “real close friends.” He further testified that he saw- Suyapa after Adriana was born and has seen Adriana since she was born “maybe once or. twice a month.” When the domestic. commissioner, asked him if he had any suspicions that the child might be his when he saw her, he said no because “she didn’t look like [him.]”

At the end of the hearing, the domestic commissioner orally granted the exception of prescription/peremption; he issued a written judgment to that effect on April 20, 2015. On April 17, 2016, Mr. Suarez filed an objection to the domestic commissioner’s order and requested an evidentia-ry hearing before the district court. The hearing.before-the district.court was held on May-19, 2015.

At -the b'éginning of the "hearing before the district court, counsel for Mr. Acosta noted that-the..day-before, she had received a letter.-stating, that a new attorney, •Tracy Sheppard, was,“potentially going to represent, [Mr. Suarez],”, but no motion to enroll or motion. for a continuance had been.filed.' The-court noted that since there, .was no motion.to. enroll filed, the attorney was not counsel of record. The [630]*630hearing proceeded with Mr. Acosta’s testimony.

-Mr. Acosta testified before the district court that before Adriana was born, he received a call from a girlfriend of Mr. Suarez who said that Suyapa was claiming that Adiiana was Mr. Suarez’s child. Mr. Suarez then called claiming the child was his and that he was going to force Mr. Acosta to take a paternity test. Mr. Acosta also described a second incident at Pep Boys where Mr. Suarez | ^approached Mr. Acosta “giving [him] the due date of when Adriana was supposed to be born, telling [him] that it was his kid and he was going to make [him] do a D.N.A. test.”

When it was time for Mr. Suarez to cross-examine Mr. Acosta, Mr. Suarez stated, “Your Honor, I was looking for an extension for 30 days with Ms. Tracy Sheppard. I don’t know if it was granted or not.” He stated that he had talked to Ms. Sheppard, but did hot meet with her until the day before the hearing. The court thereupon responded that Mr. Suarez had 30 days to rétain a new attorney after his previous attorney withdrew because Mr. Suarez no longer wanted her to represent him in this matter. The court noted that Mr. Suarez knew about the hearing when he discharged his previous attorney. The court stated that Mr.

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Bluebook (online)
194 So. 3d 626, 15 La.App. 5 Cir. 750, 2016 La. App. LEXIS 507, 2016 WL 1078244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/suarez-v-acosta-lactapp-2016.