State of Louisiana, Department of Social Services, Support Enforcement Services In The Interest of Ashley Crum VS Michael Domangue, Sr.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 1799 STATE OF LOUISIANA IN THE INTEREST OF AC VERSUS QVIIC Judgment Rendered JUN 1 7 2011 Appealed from TwentyFirst Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Docket Number 2007 3104 Honorable Zorraine M Waguespack Judge Barbara Travis Carter Counsel for Amite LA PlaintiffAppellee State of Louisiana Department of Social Services Support Enforcement Services Walter P Reed Counsel for District Attorney PlaintiffAppellee Mack H McCraney Assistant District Attorney State in the interest of AC Amite LA Jonathan L Johnson Counsel for Lake Charles LA DefendantAppellant MD BEFORE PARRO GUIDRY AND HUGHES JJ GUIDRY J The acknowledged father of a child born outof wedlock appeals a judgment of the trial court dismissing his petition to revoke a formal acknowledgment of paternity executed shortly after the child was born For the following reasons we reverse FACTS AND PROCEDURAL HISTORY I On or about November 1 2005 MD paternity for MKD born executed an acknowledgment of on October 2 2005 to AC In 2007 proceedings were instituted by the State of Louisiana Department of Social Services on behalf of AC through the District Attorney Office for the 21st Judicial District Court to s collect payments from MD for the support of MKD The trial court signed a consent judgment stipulating to the amount of MD child support obligation on s May 14 2008 A little over a year later on July 7 2009 MD filed a petition to disavow paternity of MKD wherein he requested that a rule to show cause be issued ordering the parties to submit blood and tissue samples for genetic testing and that a judgment be rendered decreeing that he was not the father of MKD In response the State of Louisiana Department of Social Services Support Enforcement Services SES filed exceptions raising several objections to MD petition s including unauthorized use of summary proceedings no cause of action and prescription Prior to a hearing on the exceptions and partially in response to the exceptions filed MD amended his petition to change his disavowal action to an 1 In the interests of privacy we have used the initials of the parties involved in this matter See Uniform RulesCourts of Appeal Rules 51 and 5 2 2 The record before us does not contain a copy of the acknowledgment of paternity executed by MD but all of the parties admit that such an act was executed by MD on or about November 1 2005 2 action to revoke the acknowledgement of paternity A peremptory exception objecting to the amended petition on the basis of no right of action was then filed on behalf of AC by the District Attorney Office for the 21st Judicial District s Thereafter the trial court issued an interim judgment ordering the parties to submit to DNA testing to determine the paternity of MKD The trial court continued the hearing on the exceptions and MD request to revoke the acknowledgment of s paternity without date pending the results of the DNA test The results of the DNA test revealed that MD could not be the biological father of MKD since he and the child do not share necessary paternal markers in multiple genetic systems Thus the probability of paternity was reported as 00 0 MD then moved to have the hearing on the exceptions and his request to revoke the acknowledgement of paternity reset Before the hearing could be held however SES filed a motion to withdraw from the proceedings asserting that the State should not be a party to MD petition to revoke the acknowledgment of s paternity The trial court did not act on the motion however an unsigned handwritten notation appears on the pleading stating t he State is an indispensable party Either SES or DA Office must represent custodial parent s Nevertheless on the date of the hearing AC appeared without counsel and MD who had been deployed to Iraq waived his appearance and was represented by counsel After hearing statements from MD counsel and brief testimony from s AC the trial court denied MD request to revoke the acknowledgment of s paternity By a final judgment signed November 18 2010 the trial court dismissed 3 Although SES was not specifically cited as a party in MD petitions SES tiled several s exceptions objecting to MD petition to disavow paternity Later after amending the original s petition MD served the agency with both the original and amended petitions 3 s MD action to revoke his acknowledgement of paternity as being prescribed It is from this judgment that MD appeals a DISCUSSION The sole question presented in MD appeal is whether the trial court legally s erred in retroactively applying La R 9 as amended by 2008 La Acts No S 406 533 1 to divest him of the right to revoke his acknowledgement of paternity of AIN I Article 196 of the Louisiana Civil Code added by 2005 La Acts No 192 1 and effective as of June 29 2005 provides that a man may by authentic act or by signing the birth certificate acknowledge a child not filiated to another man The acknowledgment creates a presumption that the man who acknowledges the child is the father Moreover at the time MD executed the acknowledgment of paternity La R 9 outlining the content and requirements for an S 392 A acknowledgment of paternity provided in pertinent part a 7 A party who executed a notarial act of acknowledgment may rescind the act without cause before the earlier of the following i Sixty days after the signing of the act in a judicial hearing for the limited purpose of rescinding the acknowledgment ii A judicial hearing relating to the child including a child support proceeding wherein the affiant to acknowledgment is a party to the proceeding the notarial act of b Thereafter the acknowledgment of paternity may be voided only upon proof by clear and convincing evidence that such act was induced by fraud duress or material mistake of fact or that the father is not the biological father 8 All parties to the action have any other rights and responsibilities which may be afforded by law now or in the future Emphasis added 4 By a rule to show cause issued October 28 2010 this court ordered the parties to show cause by briefs why the appeal should not be dismissed as it appeared that the original judgment signed by the trial court on March 18 2010 was defective because it lacked appropriate judgment decretal language as required by La C arts 1911 and 1918 The appellate P record was then supplemented with a reformed judgment containing proper judgment language As a result the appeal was maintained 4 No time limitation was provided in the statute for tiling an action to revoke an acknowledgment of paternity based on the causes listed in La S R b 7 A 392 9 In 2006 the Louisiana Legislature enacted La R 9 which became S 406 effective on June 13 2006 to provide A A person who executed an authentic act of acknowledgment may without cause revoke it before the earlier of 1 Sixty days of the signing of the authentic act of acknowledgment in a judicial hearing for the limited purpose of revoking the acknowledgment or declaration 2 A judicial hearing relating to the child including a child support proceeding wherein the affiant to the authentic act of acknowledgment is a party to the proceeding B At any time a person who executed an authentic act of such acknowledgment may petition the court to rescind acknowledgment only upon proof by clear and convincing evidence that such act was induced by fraud duress material mistake of fact or error or that the person is not the biological parent of the child C Except for good cause shown the court shall not suspend during the pendency of this proceeding any legal obligations including a support obligation of the person who petitions the court to revoke or rescind the authentic act of acknowledgment under this Section Emphasis added 5 The current version of La R 9 and 8 now provides S 392 7 A a 7 An alleged father who executed an authentic act of acknowledgment may revoke the act without cause before the earlier of the following i Sixty days after the signing of the act in a judicial hearing for the limited purpose of revoking the acknowledgment ii A judicial hearing relating to the child including a child support proceeding wherein the alleged father who executed the authentic act of acknowledgment is a party to the proceeding b Thereafter the acknowledgment of paternity may be voided only upon proof by clear and convincing evidence that such act was induced by fraud duress material mistake of fact or error or that the alleged father who executed the authentic act of acknowledgment is not the biological father c Except for good cause shown the court shall not suspend any legal responsibilities or obligations including a support obligation of the party or parties during the pendency of the proceeding authorized in this Section 8 All parties to the action have any other rights and responsibilities which may be afforded by law now or in the future It was not until 2008 when the legislature amended La R 9 that a S 406 prescriptive limit was imposed for filing an action to revoke an authentic act of acknowledgment of paternity Pursuant to the amended statute a man must institute ordinary a proceeding by process within a two year period commencing with the execution of the authentic act of acknowledgment of paternity to prove by clear and convincing evidence one of the causes listed in La S 406 R 9 as grounds for revoking the acknowledgment of paternity 1 B MD who is not the biological father of MKD executed an acknowledgment of paternity of MKD in November 2005 therefore upon executing the acknowledgment of paternity he acquired the right to revoke the acknowledgment pursuant to La R 9 At the time he acquired the right no S 392 b 7 A prescriptive time limitation existed for filing the action to revoke when the revocation was based on the fact that the movant was not the biological father It was not until 2008 when La R 9 was amended that the legislature created S 406 a prescriptive period limiting the time in which an action to revoke an acknowledgment of paternity could be filed Thus in order to find MD petition s to revoke the acknowledgment of paternity prescribed the trial court had to retroactively apply the amended version of La R 9 S 406 No statute is retroactive unless it is expressly so stated See La R 1 S 2 However the general rule of prospective application applies only to substantive laws as distinguished from merely procedural or remedial laws which will be given retroactive effect in the absence of language showing a contrary intention See La C art 6 The legislation amending La R 9 contains no language S 406 expressly authorizing or limiting the retroactive application of its provisions Therefore since prescriptive limitations are remedial in nature and are usually 6 The causes listed in the current version of La R 9 are the same as those provided S 406 1 B in La R 9 prior to amendment S 406 B C1 treated as procedural they are generally accorded retroactive application Fal out v Dealers Truck Equipment Co 98 3150 p 11 La 10 748 So 2d 399 99 19 407 Lott v Haley 370 So 2d 521 523 La 1979 Yet even procedural laws are not accorded retroactive effect when such retroactivity would operate to y g unconstitutionally disturb vested rig C eron v LCS Corrections Services Inc 04 0703 p 12 La 1 891 So 2d 1250 1258 05 19 When a party acquires a right either to sue on a cause of action or to defend himself against one that right becomes a vested property right and is protected by the due process guarantees of the state and federal constitutions However a newly created statute of prescription that shortens existing periods of limitation will not violate the constitutional prohibition against divesting a vested right provided it allows a reasonable time for those affected by the act to assert their rights Fa lgout 98 3150 at 12 748 So 2d at 407 08 Even if there had been an existing period of limitation in this statute the amendment of La R 9 did S 406 not provide a reasonable time for those affected to assert their rights following its enactment MD executed the acknowledgment of paternity in November 2005 Retroactive application of the amended version of La R 9 would result in a S 406 finding that MD right to revoke the acknowledgment of paternity had been s prescribed as of November 2007 almost a year prior to the enactment of the amendment to La R 9 Thus to retroactively apply the amended version S 406 of La R 9 to MD right of action to revoke in the absence of any provision S 406 s allowing him a reasonable time to assert his rights would essentially divest MD of the vested right he had acquired and violate his constitutional rights Accordingly 7 The legislation amending La R 9 2008 La Acts No 533 1 did not provide a S 406 specific effective date therefore the effective date of the amendment was August 15 2008 See a Const art I11 19 7 the 2008 amendment of La R 9 imposing a prescriptive limit on his right S 406 of action to revoke an acknowledgment ofpaternity can only apply prospectively CONCLUSION For the foregoing reasons we hold that the 2008 amendment of La R S 406 9 can only be given prospective application and therefore we reverse the judgment of the trial court dismissing MD petition based on prescription We s remand this matter to the trial court for further proceedings consistent with this opinion All costs of this appeal in the amount of 840 are charged to the State 50 of Louisiana Department of Social Services Support Enforcement Services REVERSED AND REMANDED lot
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