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Mclaren v. Foster

Court of Appeals of Louisiana, Third Circuit

September 26, 2018

DERRIK J. MCLAREN
v.
CARLENA O. FOSTER, ET AL.

          APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 258, 336 HONORABLE GEORGE C. METOYER JR., DISTRICT JUDGE

          Joseph Richard Kutch COUNSEL FOR DEFENDANTS/APPELLANTS: Adam Callin McLaren and Karly Marie McLaren

          Harold Alan Murry COUNSEL FOR PLAINTIFF/APPELLEE: Derrik J. McLaren

          Jeff Landry Attorney General Jeffrey M. Wale Assistant Attorney General COUNSEL FOR AMICUS CURIAE: Attorney General for the State of Louisiana

          Court composed of Billy Howard Ezell, Shannon J. Gremillion, and D. Kent Savoie, Judges.

          D. KENT SAVOIE JUDGE

         The minor children, Adam Callin McLaren and Karly Marie McLaren appeal the judgment of the trial court denying their: (1) request to declare La.Civ.Code arts. 185, 186, 187, 189 unconstitutional; (2) exception of res judicata; (3) exception of prescription; and (4) exception of preclusion by judgment. For the following reasons, we dismiss the appeal.

         Facts and Procedural History

         Derrik McLaren filed a petition to disavow paternity on March 17, 2017. Made defendants were Carlena O. Foster, McLaren's estranged girlfriend, and her two minor children - Adam Callin McLaren, born January 11, 2012, and Karly Marie McLaren, born April 8, 2013. In the petition, McLaren alleged that Carlena Foster was unfaithful to him during their relationship, leading him to believe that he is not the father of the children. He further alleged that it is physically impossible for him to be the father of Karly Marie McLaren because he was incarcerated at the time of her conception. Upon the filing of the petition, an attorney was appointed to represent the minor children.

         In response to the petition, the minor children filed an answer in which they issued a general denial and argued that blood, tissue or saliva DNA testing can only be ordered once McLaren proves by clear and convincing evidence that there is an unlikelihood of paternity. The minor children also asserted Peremptory Exceptions of Prescription, Res Judicata and Preclusion by Judgment wherein they argued that, because McLaren did not raise the issue of his paternity in a previous child support lawsuit and a child support judgment was rendered against him, he was barred from raising it in the petition to disavow paternity. The children also requested a declaration that La.Civ.Code arts. 185, 186, 187, 189, relating to the presumption of paternity and disavowal actions, are unconstitutional on their face.

         Having received notice of the constitutional issues in this case, the Attorney General of Louisiana filed a Memorandum in Support of the Constitutionality of La.Civ.Code arts. 185, 186, 187 and 189. See La.R.S. 49:257(C) and La.Code Civ.P. art. 1880.

         On August 30, 2017, after a hearing on a rule to show cause pursuant to the petition to disavow paternity, the trial court signed a judgment, denying the minor children's "exceptions/objections" and ordering DNA tests be administered to Derrik McLaren and the minor children. It is this judgment that the minor children now appeal; specifically, they appeal the denial of their "exception/objections."

         Law and Discussion

         Subject ...


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