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L.J.D. v. M.V.S.

Court of Appeals of Louisiana, First Circuit

January 25, 2017

L.J.D.
v.
M.V.S. AND J.P.S.

         On Appeal from the Thirty-Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana No. 174309 The Honorable Randall L. Bethancourt, Judge Presiding

          Carolyn A. McNabb Houma, LA Attorney for Plaintiff/Appellee L.J.D.

          M.V.S. and J.P.S. Dulac, LA In proper person Defendants/Appellants

          BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.

          HOLDRIDGE, J.

         This appeal concerns a trial court judgment requiring a mother and her child to undergo paternity testing requested by an alleged biological father after the trial court overruled the mother and her husband's exception of "prescription/peremption." This Court also issued a rule to show cause as to whether the judgment is a final appealable judgment. For the following reasons, we maintain the appeal and reverse the trial court's judgment.

         FACTUAL AND PROCEDURAL HISTORY

         On April 2, 2015, plaintiff LJ.D.[1] filed a "PETITION TO ESTABLISH PATERNITY, " naming as a defendant M.V.S., the mother of J.S., who was born on April 5, 2013. LJ.D. alleged that he is the child's father, asserting that he and M.V.S. were involved in an intimate relationship before the child's birth. According to LJ.D., M.V.S. on numerous occasions told him he was the father and demanded child support. LJ.D. also named as a defendant J.P.S, to whom M.V.S. was married when the child was conceived. He noted that J.P.S. is legally presumed to be the child's father.[2]

         LJ.D. alleged that blood testing of the parties would show his paternity. He requested that the trial court order the mother and the child to submit to blood collection and tissue sampling by a court-appointed expert. LJ.D. also sought an order that J.P.S. submit to paternity testing or produce the results of prior testing.

         M.V.S. and J.P.S. responded with an exception of "prescription/peremption" wherein they acknowledged that J.P.S. was presumed to be the child's legal father. They contended that, pursuant to La. C.C. art. 198, an action to establish paternity of a child presumed to be the child of another man shall be instituted within one year from the date of birth of the child.

         The trial court held a hearing; no evidence was introduced or testimony taken. On November 3, 2015, the court signed a judgment, which states:

IT IS ORDERED, ADJUDGED AND DECREED that the Exception [of prescription/peremption] is dismissed;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a paternity test is ordered, at a facility designated by plaintiff with plaintiff paying the fees associated with said testing;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendant [M.V.S.] has thirty (30) days from the date of the Judgment to report to the testing facility.

         From this judgment, M.V.S. and J.P.S. appeal. This Court issued a rule to show cause as to whether the judgment is a final appealable judgment and then issued an order for the ...


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