Smith v. Cole - 553 So. 2d 847 (La. 1989)

Rule:

The purpose of the peremptory exception raising the objection of no cause of action is to determine the legal sufficiency of the petition. No evidence may be offered at any time to support or controvert the exception. La. Code Civ. Proc. Ann. art. 931. The exception is tried on the face of the pleadings and the court accepts the facts alleged in the petition as true, determining whether the law affords any relief to plaintiff if those facts are proved at trial. The exception must be overruled unless the plaintiff has no cause of action under any evidence admissible, based upon the pleadings.

Facts:

Plaintiff Ledora McCathen Smith (“Smith”), married Henry Smith on March 28, 1970. They had two sons, Henry and Derrick. During the fall of 1974, the Smiths physically separated, never reconciling. Thereafter, Smith began her five year cohabitation with defendant, Playville Cole (“Cole”). The child who is the subject of this action, Donel Patrice Smith, was born on December 25, 1975, approximately a year after Smith and Cole began living together. The birth certificate names Henry Smith as Donel's father, even if Henry averred that he was not the biological father of Donel. The Smiths were not divorced until April 5, 1978. Smith’s divorce from Henry Smith was uncontested. The divorce petition declared only that "of this marriage, two children were born: Henry Smith, born September 29, 1970 and Derrick Smith, born June 13, 1974." Accordingly, the divorce judgment granted plaintiff "permanent custody of the minor children born of the marriage, namely, Henry and Derrick Smith." The divorce judgment did not mention Donel Patrice Smith.

Smith and Cole ceased their cohabitation in February of 1980. On May 18, 1988 Smith brought this action against Cole, in forma pauperis, to prove paternity and obtain child support. The petition claimed that 1) Smith and Cole are the natural parents of Donel Patrice Smith, born December 25, 1975 and 2) Cole has acknowledged he is the father of this child by his acts and admissions. Rather than answering the petition, Cole filed his exception. He claimed that as the Smiths were married when Donel was born and as Henry Smith did not disavow paternity, he is Donel's presumed father. Cole asserted that because Donel has a legitimate father, her mother should not be allowed to bastardize her just to obtain money. In response, Smith filed only the affidavit of Henry Smith where he averred he is not the biological father of Donel and affirms he never petitioned to disavow her paternity. Smith swore that Cole acknowledged to him his paternity of Donel; and, during late 1976, Smith and Cole attempted to influence him into executing certain documents which would allow Cole to change Donel's surname from Smith to Cole, "but that he refused to cooperate with them out of anger and the matter was dropped." The trial court sustained the exception on September 16, 1988. On appeal, the Court of Appeals determined the petition sets forth a cause of action for which the law provides a remedy, then determined plaintiff is the proper party to bring the action.

Issue:

Did the appellate court err in reversing the dismissal of the peremptory exception raising the objection of no cause of action?

Answer:

No.

Conclusion:

 Smith’s petition "To Prove Paternity and to Obtain Child Support" alleged 1) Smith and Cole are the natural parents of Donel Patrice Smith born December 25, 1975 and 2) Cole has acknowledged that he is the father of this child by his actions and his oral admissions. Cole claimed these allegations did not set forth a cause of action because Donel is the legitimate child of Henry Smith, who was married to plaintiff at the time of Donel's birth. LSA-C.C. art. 184. As Smith did not disavow paternity, he is the presumed father. The allegations were that Cole was the natural father of Donel; he has acknowledged his paternity of her; and Smith, as Donel's mother, seeks child support. Accepting the facts alleged as true, the face of the petition stated a cause of action for which the law affords relief. Regardless of the child's status as the legitimate child of Henry Smith, if plaintiff proves these facts at trial, she will be entitled to relief.