Turner v. Rochelle

490 So. 2d 633, 1986 La. App. LEXIS 7193
CourtLouisiana Court of Appeal
DecidedJune 11, 1986
DocketNo. 17840-CA
StatusPublished
Cited by2 cases

This text of 490 So. 2d 633 (Turner v. Rochelle) 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
Turner v. Rochelle, 490 So. 2d 633, 1986 La. App. LEXIS 7193 (La. Ct. App. 1986).

Opinion

JASPER E. JONES, Judge.

This is a suit to establish filiation brought by the plaintiff-appellant, Vivian Marie Turner, on behalf of her minor son, Juvante Turner. The suit also sought child [635]*635support. The defendant-appellee is Arthur Rochelle. The plaintiff appeals the trial court’s judgment rejecting her demands for failure to prove filiation by a preponderance of evidence.

FACTS

On March 13,1981, the plaintiff filed suit seeking a judgment recognizing the defendant as the biological father of Juvante and ordering the defendant to pay child support in the amount of $350 per month. Plaintiffs sought the appointment of medical experts to test the defendant’s blood and an order directing the defendant to submit to the blood test. In accordance with LSA-R.S. 9:3961 et seq. the court ordered the blood tests which were finally completed on September 24, 1984.

At trial the parties stipulated to the admissibility of the written conclusions of the appointed experts that there was a 96.7% likelihood that the defendant could be the biological father of the child.

The plaintiff has never been married and has two other illegitimate children whose ages were 9 and 7 at the time of Juvante Turner’s birth on July 11, 1980. Juvante’s birth resulted from a normal term pregnancy. The plaintiff testified she and the defendant, who was then 56 years old, began dating in June of 1979, and they engaged in sexual intercourse on a regular basis at her residential duplex until February of 1980. Plaintiff became pregnant in October, 1979. Plaintiff stated the defendant terminated the relationship after she informed him that problems with her pregnancy precluded further sexual relations. She testified the defendant was the only man that she had dated or had sexual relations with during the period of their courtship between June, 1979, and February, 1980. The plaintiff related that the defendant had given $100 cash to her mother for the benefit of the baby while she was in the hospital at the time of the birth of the child and that he subsequently had given her various amounts of cash to be used to support the child. She admitted that the defendant’s name did not appear bn the birth certificate but, in unrebutted testimony, explained that she was not permitted to place the father’s name on the birth certificate as she was not married to him. She also acknowledged the defendant had never admitted paternity, as he asserted that he was “too old.” The defendant had never given the child clothes, toys or other gifts.

The plaintiff called as a witness Ms. Joyce Cogburn, her neighbor in the adjoining unit of the duplex during the time plaintiff and defendant were courting. Ms. Cogburn testified she first met the defendant in the latter part of July of 1979 when the defendant was carrying the plaintiff in his automobile to and from work. She stated plaintiff and defendant were constantly together. Ms. Cogburn also related that she was fully aware of the plaintiff’s life style during this period as she and plaintiff visited constantly in each other’s units. This witness testified the defendant was the only man the plaintiff dated and that he was constantly over at plaintiff’s house until February of 1980 when the relationship cooled. Ms. Cogburn concluded by describing one instance two months after the birth of the child when the defendant visited the plaintiff at her residence and, upon viewing the child, referred to the baby as his “pretty son.”

Michelle Cogburn, Joyce Cogburn’s then 17 year old daughter, Dorothy Washington, the plaintiff’s mother and Shirley Gilbert, [636]*636plaintiff’s sister, all testified and generally corroborated the testimony of the plaintiff and Joyce Cogburn.

The defendant testified he had never dated the plaintiff and that she was just “one-of-the-fellows” who liked to go to the Cross Lake Bar to shoot pool and drink. The trial judge made the following findings of fact which indicated’the trial court did not believe this part of defendant’s testimony. “Mr. Rochelle was picking the plaintiff up on occasions to go to work, bringing her home from work, and visiting her from time to time in the evening.” Defendant related that he had never been to the plaintiff’s residence but admitted under cross examination that he had sexual relations with her there one night in the latter part of September but could not recall which year.2 He asserted that this was his only such sexual encounter with plaintiff. He argued he could not be the father because though he did achieve penetration he did not have an orgasm. He also testified that on separate occasions he had loaned plaintiff $100 and $5.00 and that on one occasion he had passed the hat among plaintiff’s acquaintances at work and collected $50 for her. He also asserted that during the time that he had sex with the plaintiff she was seeing two other men. He named one of these men and described what he did for a living and where he worked. He also named the other man and asserted that she was seen with him at a dance by defendant’s brother. The defendant presented no specific evidence to substantiate these contentions nor any witness to otherwise corroborate any of his testimony.

The trial court rendered judgment rejecting plaintiff’s demands based for the most part on the following written reasons:

The defendant’s testimony, on the other hand, is that he did have sex relations with her on one occasion, but not close enough to the time when she became pregnant to have been the father. Additionally, he is fast approaching the age of 60. This Court is called on to decide if the plaintiff established by a preponderance of the evidence that Mr. Rochelle is the biological father, and if the burden is met, how much child support he will be obliged to pay for the next dozen or more years. Other facts supporting the defendant are that the plaintiff testified that she had borne two children out of wedlock prior to this child’s birth, and the indication of a probability of their [sic] being other men who could be the father. We are not dealing here with a previously chaste woman who has been tampered with by an experienced, older man. A pin cushion can be pierced by many pins, but who is to say which pin has pierced it the most? The facts that Mr. Rochelle dated and possibly had sexual relations with the mother at the time when she became pregnant and that, biologically, he could be the father are not sufficient to establish paternity by a preponderance of the evidence. State of Louisiana v. Wiggins, 409 So.2d 1264 (2d Cir.1982) [sic].” .

The plaintiff’s assignment of error presents the following issue for decision:

Was the trial court clearly wrong in rejecting the plaintiff’s demands based upon the defendant’s age, his uncorroborated testimony that the plaintiff was seeing two other men during the general time period of their singular sexual encounter and the fact that the plaintiff was the mother of two prior illegitimate children?

Finding filiation was proven, we reverse and order support.

LAW

“Illegitimate children are those who are conceived and born out of marriage.” [637]*637LSA-C.C. art. 180. “In order to establish filiation, a child who does not enjoy legitimate filiation or who has not been filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must institute a proceeding under Article 209.” LSA-C.C. art. 208. “A child not entitled to legitimate filiation ...

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Bluebook (online)
490 So. 2d 633, 1986 La. App. LEXIS 7193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-v-rochelle-lactapp-1986.