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Perry v. Clay

Court of Appeals of Louisiana, Third Circuit

December 18, 2019

YVETTE PERRY & JAMES PAUL PERRY, ET AL
v.
DOROTHY MAE CLAY, IN RE ESTATE OF JAMES PAUL GREEN

          APPEAL FROM THE ELEVENTH JUDICIAL DISTRICT COURT PARISH OF SABINE, NO. 69, 159 HONORABLE STEPHEN B. BEASLEY, DISTRICT JUDGE

          Ronald D. Brandon, Brandon Law Firm COUNSEL FOR DEFENDANT/APPELLEE: Dorothy Mae Clay, in re Estate of James P Green

          Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Van H. Kyzar, Judges.

          SHANNON J. GREMILLION, JUDGE.

         From the judgment of the trial court that maintained the exception of no right of action filed by Appellee, Dorothy Mae Clay (Mrs. Clay), Appellants filed the instant appeal. For the reasons that follow, we affirm in part, reverse in part, and remand the matter for further proceedings.

         FACTS

         This matter involves the succession of James Paul Green (Mr. Green), who died in 2014. Appellants, James Paul Perry (Mr. Perry) and his daughter, Yvette Perry (Ms. Perry), sought to be recognized as Mr. Green's father and sister, respectively, when, on August 20, 2018, they filed a Rule to Show Cause contesting the propriety of Mrs. Clay's administration of Mr. Green's succession.[1] Mr. Perry asserted that he fathered Mr. Green, Mr. Green's brother, Michael McClanahan, and Mr. Green's sister, Laura Ann Green, during an extra-marital affair between himself and Mr. Green's mother, Mrs. Clay, who was married to James Charles Green during the pertinent period. Mr. Perry's testimony on this point was corroborated by his ex-wife, Estella Patton, who was aware at the time of Mr. Perry's relationship with Mrs. Clay, and by three of his biological children fathered with Mrs. Patton. Mr. Perry's paternity of Mr. Green was disputed by Mr. Green's sister, Lenora Green.

         Mrs. Clay answered the rule with exceptions of no cause of action and no right of action. The trial court maintained the exception of no right of action and denied the exception of no cause of action. This appeal ensued.

         ANALYSIS

         The law establishes the presumption that the husband of the mother is the father of the child born during the marriage. La.Civ.Code art. 185. Thus, Mr. James Charles Green is presumed to be Mr. Green's father. The law also establishes peremptive periods within which a putative biological father may seek filiation of a child. Louisiana Civil Code Article 198 provides:

A man may institute an action to establish his paternity of a child at any time except as provided in this Article. The action is strictly personal.
If the child is presumed to be the child of another man, the action shall be instituted within one year from the day of the birth of the child. Nevertheless, if the mother in bad faith deceived the father of the child regarding his paternity, the action shall be instituted within one year from the day the father knew or should have known of his paternity, or within ten years from the day of the birth of the child, whichever first occurs.
In all cases, the action shall be instituted no later than one year from the day of ...

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