
    Mable WILSON, Plaintiff-Appellee, v. Timothy Lee ERNST, Defendant-Appellant.
    No. 13739.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.
    En Banc. Rehearing Denied Feb. 28, 1979.
    Writ Refused April 23, 1979.
    
      James D. Sparks, Jr., Monroe, for defendant-appellant.
    Dimos, Brown & Erskine by S. Andrew Shealy, Monroe, for plaintiff-appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   BOLIN, Judge.

In this paternity litigation the defendant appeals from a judgment declaring him to be the natural father of plaintiff’s minor son and ordering him to pay $120 per month for support of the child. We affirm.

Plaintiff and defendant met while both worked for the same employer. She testified they began having sexual relations in November 1975 and had such relations intermittently until February 1976 when he began dating someone else. She stated her relationship with defendant resumed in the latter part of April 1976, and that they had sexual relations almost every weekend until she was five months pregnant in the fall of 1976. According to her testimony, most of their encounters were at her apartment. She discovered she was pregnant in July 1976 and approximated the date of conception to be June 12, 1976. When she informed defendant of the pregnancy, she testified he offered to have his brother, a doctor, arrange for an abortion. She stated he never denied being the father until she requested financial assistance after the child was born in February 1977. However, she admitted that he never actually acknowledged being the father either. She testified she did not engage in sexual relations with anyone else during the time of her relationship with defendant.

Defendant’s version of the relationship differed. In answering the suit he contended his contacts with plaintiff from March through July 1976 were “infrequent” and that during this period of time plaintiff was dating other individuals. At trial, however, he denied having sexual relations with plaintiff after March of 1976. He maintained they only had sexual relations on three occasions but could not recollect when. He admitted on cross-examination, however, that it was possible he was the father. He stated that the plaintiff approached him about helping her arrange for an abortion and that his willingness to help was merely an act of friendship.

Blood tests ordered by the court proved inconclusive in that defendant could not be eliminated as the father. None of the other witnesses shed much light on the relationship between plaintiff and defendant at the time of the child’s conception.

In lengthy reasons for judgment the trial court observed that plaintiff testified in an open and forthright manner whereas defendant’s testimony was extremely vague and evasive. Considering the demeanor of the witnesses and the evidence as a whole, the trial court found that the relationship between plaintiff and defendant was much more extensive and of a longer duration than admitted by the defendant. The court held that defendant’s conduct upon learning of the pregnancy and his admitted efforts to arrange an abortion constituted an acknowledgment of paternity under La.Civil Code article 209. Alternatively, the trial court found plaintiff was not “dissolute” so as to preclude the application of La.Civil Code art. 210 to prove paternity.

At the outset we agree with defendant that the trial court erred in finding an acknowledgment under article 209 which provides in pertinent part:

In the case where the proof of paternal descent is authorized by the preceding article, the proof may be made in either of the following ways:
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2. When the father, either in public or in private, has acknowledged him as his child, or has called him so in conversation, or has caused him to be educated as such;
* * * * * *

We agree that the offer to arrange for an abortion does not constitute an acknowledgment of paternity under article 209.

Defendant’s main arguments on appeal deal with an evidentiary ruling made by the trial judge relative to La.C.C. art. 210, and whether or not the plaintiff was barred from using this method of establishing paternity. Article 210 provides:

The oath of the mother, supported by proof of the cohabitation of the reputed father with her, out of his house, is not sufficient to establish natural paternal descent, if the mother be known as a woman of dissolute manners, or as having had an unlawful connection with one or more men (other than the man whom she declares to be the father of the child) either before or since the birth of the child.

During the trial defendant attempted to question plaintiff about sexual conduct on her part prior to the time of her relationship with him. The trial judge prohibited defendant from asking her about sexual relations with others except during the time she was seeing the defendant and refused to allow an offer of proof. Defendant argues such evidence would be relevant under article 210.

We agree. In McConkey v. Pinto, 305 So.2d 469 (La.1975) the supreme court dealt with a situation in which it was shown that a woman engaged in sexual intercourse pri- or to marriage and conceived a child. This occurred a year after the birth of the child whose paternity was at issue in the lawsuit. The court stated:

* * * The conception of such a child a few days prior to marriage and over one year after the birth of the illegitimate child, in our opinion, does not constitute an unlawful connection, or commerce ii-licite, within the contemplation of Article 210. The purpose of this disqualifying provision is to prevent a dissolute mother from choosing as the father of her illegitimate child any one of several men with whom she had been intimate at the time of conception. Illicit relations after the birth of the child are relevant in that they support the premise that the mother was dissolute at the time of conception. * * * 305 So.2d 469, 471.

Accordingly, the trial court did err in limiting defendant’s cross-examination of plaintiff and disallowing the offer of proof. Evidence of sexual conduct on plaintiff’s part prior to the time she knew the defendant would be relevant to support the premise that plaintiff was a woman of “dissolute manners” at the time of conception.

In spite of the trial court’s erroneous ruling, however, evidence was elicited that plaintiff had engaged in sexual intercourse with a man she stopped dating in January 1975. Three other male acquaintances of plaintiff were alluded to at trial. One was a young man plaintiff dated once in April of 1976. She expressly denied having sexual relations with him. Another man was the husband of one of plaintiff’s friends and the record indicates they were only friends. The third was a man plaintiff dated in the summer of 1975. He was unable to attend the trial and the trial judge granted defendant twenty days after trial to submit this person’s deposition. No deposition was submitted. In the written reasons for judgment and in the denial of a motion for new trial the district judge recognized that he probably erred in curtailing the cross-examination of plaintiff. The court found the error nonprejudicial to the defendant because plaintiff admitted one affair and the defendant failed to submit the deposition which may have revealed one other affair. We agree with the trial court that the evidentiary ruling did not prejudice defendant. It appears that defendant, at best, could only have shown that plaintiff had sexual relations with two other men before she met the defendant. Under these circumstances any error on the trial court’s part does not mandate reversal.

In a related argument defendant contends that plaintiff is disqualified from using article 210 to establish paternity because of her admitted unlawful connection with another man. This argument is without merit. In McConkey v. Pinto, supra, sexual relations occurring a year after the birth of the child did not disqualify the mother from using article 210. In the case at bar plaintiff’s relations occurred two years prior to the birth of the child. Although, as discussed earlier, the trial judge did prohibit defendant from eliciting evidence of other possible affairs, it is apparent that defendant only intended to bring out that plaintiff had engaged in sexual relations with one other man. This relationship ended almost two years before the birth of the child. Under the rationale of McConkey these remote relations would not disqualify plaintiff from using article 210.

Defendant’s final argument is that the trial court’s factual determination that he is the father is erroneous. Defendant specifically argues that plaintiff testified that a contraceptive device was used on one occasion some time during the month of June, and that this makes it impossible for him to be the father because they only had intercourse once that month. As we appreciate the record, plaintiff testified she had sexual relations with defendant twice that month and that a contraceptive device was only used once. Accordingly, the trial court’s factual conclusions are not erroneous.

Judgment is affirmed at appellant’s cost.

MARVIN, J., dissents and assigns written reasons.

MARVIN, Judge,

dissents.

I agree with the majority that this case is to be decided solely on that part of CC Art. 210 relating to the mother of the child

“having had an unlawful connection with one or more men (other than the man whom she declares to be the father of the child) either before or since the birth of the child.”

Unlawful connection in Art. 210 means sexual intercourse without the benefit of marriage. See State v. Savant, 115 La. 226, 38 So. 974, 975 (1905); McConkey v. Pinto, 289 So.2d 540, 541 (La.App. 4th Cir. 1973), reversed on other grounds, 305 So.2d 469 (La.1974).

The policy of Art. 210 has remained unchanged since 1825 and is clear in its pronouncement:

“The oath of the mother, [even though] supported by proof of cohabitation of the reputed father with her, out of his house, is not sufficient to establish natural paternal descent, if the mother be known as a woman of dissolute manners, or as having had an unlawful connection with one or more men (other than the man she declares to be the father of the child) either before or since the birth of the child.” Bracketed material and emphasis supplied.

If the policy of 210 is to be changed to require the unlawful connection to occur during the period of time that the child could have been conceived, it is for the legislature to make the change and not the courts. This is especially true where the policy is of long standing. See Barnett v. Barnett, 339 So.2d 495 (La.App. 2d Cir. 1976).

Here the mother admits to having had unlawful sexual intercourse with a man other than defendant whom she stopped dating in January 1975 and as the majority indicates, she may have had unlawful sexual intercourse with two other men sometime before she met defendant in November 1975. This child was conceived about June 12, 1976.

McConkey concerned a child born in February 1968. The Court of Appeal applied Art. 210 and barred the mother from proving paternity because she married one Jimmy Gray in April 1969 and gave birth to a child in November 1969, which was conceived, according to expert testimony, “at least four days prior to marriage.” The Court of Appeal held that because the mother had an unlawful connection with Jimmy Gray her proof of paternal descent was “insufficient.”

On a writ of review, the Supreme Court clearly held that Art. 210 was inapplicable and that the case would be decided as an acknowledgment case under Art. 209:

“We do conclude, however, that Article 210 is inapplicable for other reasons advanced by plaintiff.
* * * * * *
“. . . In effect, the defendant acknowledged or called the child as his. In our opinion, the proof fulfills the requirements of paragraph 2 of Article 209 ...” 305 So.2d 471

The paragraph of about two dozen lines omitted from the above McConkey quotation as indicated by the asterisks, did discuss broadly and loosely, and without definitiveness, why Art. 210 was perhaps inapplicable. McConkey in hazy dicta in the paragraph in question, stated only in my opinion

. . plaintiff’s child [though] conceived a few days prior to marriage . is conclusively presumed to be legitimate . The conception of such a child [conclusively presumed to be legitimate] does not constitute an unlawful connection . . . within the contemplation of Article 210 . . . Illicit relations after the birth of a child are relevant in that they support the premise that the mother was dissolute [within the meaning of Art. 210]. The showing . . .relating to the birth of a legitimate child, is insufficient to produce a disqualification [under the part of Art. 210 referring to the mother’s reputation as a dissolute woman].” Bracketed material and emphasis supplied.

McConkey apparently equated reputation as a dissolute woman as synonymous with her having had an unlawful connection. I view them differently because of the or in the article. In my view a woman may be indiscreet or somewhat promiscuous (having had more than one unlawful connection) without being known as a “dissolute woman” such as a call girl, a prostitute or an easy mark. The unlawful connection in my opinion can be proved only by facts while the dissoluteness can be proved only by reputation (“known as a dissolute woman”). In any event, however, if an unlawful connection after the birth of an illegitimate is relevant on the question of dissoluteness under McConkey, it should be equally relevant and not remote so as to trigger what I believe is the second bar of Art. 210. One unlawful connection, beside that with the alleged father, either before or after the birth of the child, even though the mother is not known as a dissolute woman, enervates the oath of the mother as to paternal descent in the express language of Art. 210.

Whether or not dicta with respect to Art. 210, McConkey did not hold that a true unlawful connection occurring after the birth of an illegitimate child was insufficient to produce a 210 disqualification. If so, why the statement that illicit relations after the birth are relevant as to dissoluteness? As to Art. 210, McConkey said only and nothing more than that an act of sexual intercourse, even before marriage, which produces a legitimate child because the mother marries her partner, does not constitute an unlawful connection within the meaning of 210.

Thus I respectfully, but strongly disagree with the majority’s statement that “under the rationale of McConkey these remote relations [of this plaintiff] would not disqualify plaintiff from using Article 210.” The rationale of McConkey does not change Art. 210 to add that the unlawful connection must be concurrent with the time in which the child could have been conceived before the disqualification is applicable. What could be more remote to the time of conception than intercourse after the birth of the illegitimate? This act is relevant according to McConkey on dissoluteness, McConkey does not change Art. 210 as the majority here has changed it.

I dissent because of this court’s misconstruction of the dicta in McConkey and because it is for the legislature and not this court to change the policy of Art. 210, if it is to be changed. 
      
      . “. . [Art. 210] prohibits a judicial determination of paternity based solely on proof of cohabitation and the testimony of the mother, if she has been promiscuous ... it merely displays a legislative distrust of the oath-plus-cohabitation evidence by declaring that conclusive weight cannot be given to it standing alone. Cf. McConkey v. Pinto, 305 So.2d 469 (La., 1975); Ogborn v. Bush, 255 So.2d 199 (La.App. 4th Cir. 1974).” Succession of Washington, 308 So.2d 892, 896 (La.App. 2d Cir. 1974)
     
      
      . This paragraph expressly states that “[i]llicit relations after the birth of the child are relevant . . [to] the premise that the mother was dissolute at time of conception.” Bertrand v. Warren, 326 So.2d 505, 507 (La.App. 3d Cir. 1976), in attempting to gather meaning from this paragraph, said that McConkey held
      “[that] a single act of intercourse more than one year after the birth of the illegitimate child . . . was not relevant to ‘the premise that the mother was dissolute at the time of conception.’ ”
      Thus it is obvious that the McConkey paragraph requires some clarification or further treatment by our highest court.
     