Succession of Robinson

654 So. 2d 682, 1995 WL 311965
CourtSupreme Court of Louisiana
DecidedMay 22, 1995
Docket94-CC-2229
StatusPublished
Cited by19 cases

This text of 654 So. 2d 682 (Succession of Robinson) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Succession of Robinson, 654 So. 2d 682, 1995 WL 311965 (La. 1995).

Opinion

654 So.2d 682 (1995)

SUCCESSION OF Hardie ROBINSON.

No. 94-CC-2229.

Supreme Court of Louisiana.

May 22, 1995.

*683 David Gertler, Mike Gertler, Jill D. Trahan, Gertler, Gertler, & Vincent, New Orleans, for applicant.

Brett M. Dupuy, Raymond J. Brandt, Metairie, Timothy Thriffiley, Chalmette, for respondent.

JOHNSON, Justice.[*]

On June 14, 1971, Hardie Robinson, Jr.[1], executed a statutory will in which he formally acknowledged Barbara Ann Lyons, Patricia Marie Lyons, and Hazel Marie Lyons as his daughters.[2] These acknowledged women were born in 1949, 1951, and 1953 respectively. At the time the women were conceived and born, their mother, Hazel Davis Lyons, was married to and living with William Lyons, Sr. Therefore, the women were the legitimate children of William and Hazel Lyons.

On May 18, 1988, Hardie Robinson, Jr., changed the manner in which his assets were to be distributed by executing a new statutory will revoking the 1971 will. The acknowledged women were not mentioned in the 1988 will.[3]

On February 5, 1992, Hardie Robinson, Jr. died. After decedent's death, Melvin Alfred Robinson petitioned to be appointed the succession administrator claiming that he was Hardie Robinson, Jr.'s only legitimate child and sole heir. Melvin Robinson was confirmed as administrator. Thereafter, the acknowledged women intervened in the succession seeking, among other things, to be recognized by the court as the formally acknowledged children of decedent based on the 1971 will and, as such, to participate in decedent's succession as forced heirs. The trial court found that the 1971 will executed by decedent was an acknowledgment by Hardie Robinson, Jr. of his daughters.

In response, pursuant to La.R.S. 9:396, Melvin Robinson filed a motion to compel genetic testing through performing blood tests on the acknowledged women and their mother "to determine what relationship, if any, the purported heirs have to decedent." The trial court denied the motion stating that "[g]enetic testing has no relevance to the issue of whether or not [the women] have been acknowledged." The court of appeal set aside the trial court's judgment and remanded the matter for a hearing "to determine whether DNA testing ... should be ordered [reasoning that decedent] could not validly acknowledge [the women] if they were not his children." The court of appeal found that DNA testing was relevant and that La. R.S. 9:396 would authorize the blood testing. On the intervenors' application, we granted certiorari to determine the correctness of that ruling.

The issue presented for our review is whether, in a succession proceeding, a court can compel formally acknowledged illegitimate persons and their mother to submit to blood tests.

In resolving this issue, we must first determine whether, under the circumstances, authority exists for ordering the requested blood tests. If so, whether competing constitutional interests weigh in favor of permitting *684 such testing. Finally, if testing is permissible in this case, whether procedural safeguards are necessary to protect the constitutional rights implicated.

La.R.S. 9:396 A, a statute directed at establishing paternity, provides:

Notwithstanding any other provision of law to the contrary, in any civil action in which paternity is a relevant fact, or in an action en desaveu, the court, upon its own initiative or upon request made by or on behalf of any person whose blood is involved, may or, upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to the drawing of blood samples and shall direct that inherited characteristics in the samples, including but not limited to blood and tissue type, be determined by appropriate testing procedure. If any party refuses to submit to such tests, the court may resolve the question of paternity against such party or enforce its order if the rights of others and the interests of justice so require.

The statute authorizes blood testing of the mother and child in cases where paternity is relevant. Moreover, the general rules of discovery may authorize blood tests where such tests are likely to produce relevant evidence. Sudwischer v. Estate of Hoffpauir, 589 So.2d 474 (La.1991); La.Code Civ.P. art. 1422.[4]

Thus, our inquiry is narrowed. We must determine whether Hardie Robinson, Jr.'s biological relationship to the intervenors is relevant to the legal effect to be given the formal acknowledgment in this succession proceeding. That is, whether the validity of the formal acknowledgment depends upon whether decedent was the intervenor's biological father.

La.Civ.Code art. 178 states that children are either legitimate or illegitimate. Legitimate children are defined by La.Civ.Code art. 179 as those who are either born or conceived during marriage or who have been legitimated in the manner provided by law. La.Civ.Code art. 180 states that illegitimate children are those who are conceived and born out of marriage. Under La.Civ.Code art. 203, an illegitimate child is acknowledged by a declaration executed before a notary public, in the presence of two witnesses, by the "mother" or "father." Although art. 203 does not expressly preclude executing an acknowledgment where no biological relationship exists, this conclusion is self-evident and definitional of an acknowledgment. An acknowledgment is an avowal emanating from the "mother" or "father" to establish maternal or paternal filiation. 1 M. Planiol, Treatise on the Civil Law § 1476 (La.St.L.Inst. transl. 1959). The word "filiation" describes the fact of biological parentage. La.Civ.Code arts. 193-197. Thus, through the acknowledgment, the "mother" or "father" provides proof of maternal or paternal filiation, that is, biological parentage. Absent a biological relationship, the avowal is null. "A fact cannot be avowed when it has never existed." 1 Planiol, supra, § 1490(2). If the acknowledgment is null, it produces no effects.

Our conclusion, that the validity of an acknowledgment may depend on the existence of a biological relationship is in line with other decisions addressing this issue. Specifically, in McKinley v. McKinley, 631 So.2d 45 (La.App. 2nd Cir.1994), Paul McKinley married Wendy McKinley six weeks after she gave birth to Justin McKinley. Paul and Wendy McKinley knew that Paul was not Justin's biological father because Justin was conceived before they began dating. Nonetheless, after their marriage, Paul and Wendy executed an authentic act avowing that Paul was Justin's father. Sometime thereafter, Paul and Wendy divorced. Wendy sought to terminate Paul's parental rights asserting that Paul was not the biological nor legal father. Although custody of Justin was awarded to Paul based on the child's best interest test, the Second Circuit found that "[o]nly a father may formally acknowledge an illegitimate child...." Id. at 48. The court concluded that the acknowledgment was *685 without legal effect. Similarly, courts in France have permitted legal attacks against false formal acknowledgments. As discussed in 1 Planiol,

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Bluebook (online)
654 So. 2d 682, 1995 WL 311965, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-robinson-la-1995.