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State, Dep't of Children & Family Servs. ex rel. A. L. v. Lowrie

Supreme Court of Louisiana

May 5, 2015

STATE OF LOUISIANA, DEPARTMENT OF CHILDREN AND FAMILY SERVICES, IN THE INTEREST OF A.L.
v.
THOMAS ROBERT LOWRIE

Page 574

[Copyrighted Material Omitted]

Page 575

ON SUPERVISORY WRITS TO THE JUVENILE COURT FOR THE PARISH OF JEFFERSON.

REVERSED AND REMANDED.

For Applicant: Barbara Volk Madere, Christine Falgoust Remy, REMY LAW FIRM.

For Respondent: Claudia Patricia Santoyo, JEFFERSON PARISH DISTRICT ATTORNEY'S OFFICE; Hon. Paul D. Connick, Jr., District Attorney, Timothy Patrick O'Rourke, Assistant District Attorney, Ann Kirkpatrick Jacobs, Assistant District Attorney, John Donellan Fitzmorris, Jr., Assistant District Attorney; Renee L. Swanson, RENEE SWANSON, LLC.

HUGHES, J. WEIMER, J., additionally concurring. GUIDRY, J., dissents and assigns reasons.

OPINION

Page 576

[2014-1025 La. 1] HUGHES, J.[*]

This writ presents the issue of whether an alleged biological father should be joined in a child support enforcement action, filed pursuant to LSA-R.S. 46:236.1.1 et seq. against the legally-presumed father. The juvenile court denied joinder, and the appellate court denied writs. Concluding that a biological father owes an obligation of support to his child, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

In December of 2002 Thomas Robert Lowrie married Melissa Percy Lowrie, who gave birth to two children during the marriage: A.L., born February 4, 2003; and B.W., born May 4, 2009. In October of 2010 the Lowries were divorced.

[2014-1025 La. 2] Although the children were born during the marriage, Mr. Lowrie, believing that Stephen A. Wetzel was the biological father of the children, sought to disavow paternity of the children. Mr. Lowrie successfully disavowed paternity of the younger child, B.W., in January of 2011; however, his action to disavow the older child, A.L., was found to be untimely. Therefore, Mr. Lowrie remains the legal father of A.L.

In September of 2012, the State of Louisiana, Department of Children and Family Services (" DCFS" ), represented by the Jefferson Parish District Attorney (collectively, " State" ), filed an action in the Jefferson Parish Juvenile Court against Mr. Lowrie, seeking medical and child support for A.L. DCFS alleged that it was providing services for A.L., which created a cause of action in favor of the State pursuant to the State's child support enforcement law, LSA-R.S. 46:236.1.1 et seq.

The court minutes for January 22, 2013 stated that both A.L.'s mother and Mr. Lowrie appeared, along with counsel, before the juvenile court hearing officer on a rule for child support.[1] The hearing officer noted that " [t]here is a biological father also [and] his income was imputed as $1919.00 from the Louisiana Occupational Handbook." The minutes also noted that the hearing officer calculated what the proportional amount of child support for Mr. Lowrie would be if the combined monthly income for the parties included the attributed income of the biological father; the monthly amount owed by Mr. Lowrie when calculated by that method was $869.00. However, the minute entry further stated:

The hearing officer does not agree with the foregoing methodology and will not consider the income of the biological father in the calculation.
The hearing officer cannot proceed with the calculation of another [2014-1025 La. 3] worksheet as both parties may be benefitting from expense sharing and sufficient information is not available.
[The] [h]earing officer recommends that [a] temporary order of support be entered in the amount of $500.00 . . . every month . . . .[2]

Page 577

A judgment was thereafter signed by the juvenile court judge ordering that the recommendation of the hearing officer be made the judgment of the court.

On July 19, 2013, Mr. Lowrie filed a " Petition for Third Party Claim," alleging that Mr. Wetzel was a necessary and indispensable party to the support proceeding, asserting that Mr. Wetzel's income should be included in any child support calculation, and requesting that Mr. Wetzel be made a party defendant. In response, Mr. Wetzel filed exceptions of no cause of action, no right of action, lack of procedural capacity, and vagueness.

Following a December 9, 2013 review by the juvenile court hearing officer, the hearing officer recommended that Mr. Lowrie's third party claim be dismissed, stating:

Thomas Robert Lowrie (original defendant herein) is the legal father of [A.L.], having been married to the mother of said child, Melissa Danielle Lowrie. Mr. Lowrie is listed as the child's father on the birth certificate. A disavowal action has been dismissed as untimely.
Stephen A. Wetzel argues through counsel that he has not been found to be the biological father of [A.L.], and that the proper plaintiff in any filiation action is Melissa Danielle Lowrie, the recipient of child support herein, rather than the [DCFS]. Ms. Lowrie has not filed any action to have Mr. Wetzel named as the child's biological father.
The hearing officer recommends that the Third Party Claim be dismissed as to Stephen A. Wetzel, as he has not been found to be the biological father of [A.L.] (or to have any official relationship to the child) and therefore has no obligation to provide support.
The attorney for Thomas Robert Lowrie disagrees and requests a hearing before the judge.

During the subsequent February 24, 2014 hearing before the juvenile court [2014-1025 La. 4] judge, Mr. Lowrie proffered into evidence Melissa Lowrie's March 2013 answers to interrogatories, wherein she admitted that: Mr. Wetzel was the biological father of both B.W. and A.L.; Mr. Wetzel submitted to paternity testing for A.L.; the results of the paternity test reflected that Mr. Wetzel was the biological father of A.L.; and, she was living with Mr. Wetzel. A copy of the 2008 " Paternity Analysis Report" was also proffered and filed into the juvenile court record; it stated that Mr. Wetzel's probability of paternity of A.L. was 99.17%.[3] The juvenile court judge ruled to uphold the hearing officer's December 9, 2013 recommendation to dismiss Mr. Lowrie's third party demand against Mr. Wetzel.

Mr. Lowrie applied for supervisory review to the appellate court, which denied his application. See State, Department of Children and Family Services ex rel. A.L. v. Lowrie, 14-0210 (La.App. 5 Cir. 4/16/14) (unpublished). Mr. Lowrie then filed a writ application with this court, which was granted. See State, Department of Children and Family Services ex rel. A.L. v. Lowrie, 14-1025 (La. 10/3/14), 149 So.3d 275.

LAW AND ANALYSIS

Third Party Demand


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