
    Dianne TURNER, as Natural Tutrix of the Minor Child, Cietra Jenal Stroughter (Onterio McWright), Plaintiffs-Appellants, v. Thomas R. BUSBY and Zurich American Insurance Company, Defendants-Appellees.
    No. 37,272-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 9, 2003.
    Opinion on Rehearing Nov. 13, 2003.
    
      Samuel H. Thomas, Tallulah, Bobby R. Manning, for Appellant, Onterio McWright.
    James E. Paxton, Tallulah, for Appel-lees, Zurich American Ins. Co., Acme Trucking Co. and Thomas R. Busby.
    Before STEWART, GASKINS and DREW, JJ.
   | t STEWART, J.

In this wrongful death action, we review whether the trial court erred in granting the defendants request to have the plaintiff undergo DNA testing. We find that the trial court erred as a matter of law, and we reverse for the reasons that follow.

FACTS

This lawsuit arises from a traffic accident on Highway 65 in Tensas Parish, Louisiana in which Andrew Stroughter (“Stroughter”) was killed in a collision with tractor trailer driven by Thomas Busby (“Busby”). Following the accident, multiple parties filed suit against Busby and his insurance carrier, Zurich American Insurance Company (“Zurich”) for the wrongful death of Stroughter. Those parties were: Alversia Stroughter, his ex-wife; Onterio McWright (“McWright”), his acknowledged son; LeShun Singleton, daughter of Stroughter; and Dianne Turner, Stroughter’s girlfriend, as natural tutrix for their minor child, Cietra Jenal Stroughter. This appeal focuses specifically upon the claims of McWright.

McWright was born to Gladysteen Harris (“Harris”) on June 8, 1970. Harris and Stroughter were never married. However, in child support proceedings in Madison Parish on March 3, 1982, Stroughter signed a notarized stipulation under La. R.S. 14:75.2 that was made an order of the court wherein he admitted that McWright was his child and agreed to pay child support. Stroughter again stipulated that he was “the lawful parent” of McWright in an order and judgment fixing child support entered in the Superior Court of the State of Washington, King County on May 6, 1983, | ¿where he was cast in judgment for back child support. Finally, the March 1982 stipulation was amended on May 4, 1984, and Stroughter again signed another notarized stipulation and judgment admitting that he was the father of McWright and agreeing to pay child support.

When this wrongful death action ensued, the defendants filed an Exception of No Right of Action arguing that McWright was neither legitimate at birth, nor subsequently legitimized by Stroughter. Stroughter’s sisters were called in support of the defendants’ exception. Although they testified that their brother always contended that he was not McWright’s father, the record reveals that Stroughter never challenged his obligation to pay child support or the finding that he was the biological father of McWright. In fact, Stroughter paid the child support obligation until McWright turned eighteen.

In addition to requesting that the trial court grant their exception, the defendants submitted a motion to have a DNA test performed on McWright to determine if Stroughter was in fact his father. The trial court ordered the DNA testing. McWright sought a writ of review to this court which was denied on the showing made. McWright then submitted to the DNA testing which revealed that there was a 0% probability that McWright was the son of Stroughter. The defendants’ exception of No Right of Action was granted by the trial court, and McWright was dismissed from the lawsuit with prejudice. McWright then filed the instant appeal.

DISCUSSION

Although the appellant raises three assignments of error, the primary issue of dispute concerns whether or not the trial court erred as a matter of 13law by forcing McWright to submit to DNA testing. On appeal, McWright asserts that, as a matter of law, the issue of whether Stroughter was his father was settled in final judgments fixing child support in 1982, 1983, and 1984. Consequently, any attack on the validity of the assertions in those judgments should have been made within one year of the discovery of the alleged defect or nullity under Louisiana Code of Civil Procedure Article 2004. As a result, the defendants are pre-empted by operation of law from collaterally attacking those judgments in this wrongful death action.

Under La. C.C.P. art.2004, a final judgment obtained by fraud or ill practices may be annulled within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practice. The trial court erred as a matter of law when it failed to treat the child support judgments from Madison Parish, Louisiana and King County, Washington as final judgments. It appears that the trial court treated the judgments as mere acknowledgments. However, our examination of the record leads us to the conclusion that while the acknowledgments were first made in stipulations under La. R.S 14:75.2 to avoid prosecution for back child support, these acknowledgments were also made a part of the final judgment fixing the child support obligation. As such, the proper manner for attacking said judgments would have been to bring a direct action for nullity.

The one year limitation of La. C.C.P. art.2004 is considered a period of peremption rather than prescription. Burkett v. Property of Douglas, 575 So.2d 888, 892 (La.App.2d Cir.1991). Statutes of peremption do not merely bar the remedy; they destroy the cause of action itself. After the 14time limit expires, the cause of action is lost and no longer exists. Russland Enterprises v. City of Gretna, 98-676 (La.App. 5 Cir. 1/26/99), 727 So.2d 1228. Thus, the proper procedural device for raising an issue of peremption is an exception of no cause of action. Id. We note that the court of appeal may supply an exception of no cause of action on its own motion. La. C.C.P. art. 927.

The record shows that as early as 1971, Stroughter was aware that there was a possibility that McWright was not his son, yet he acquiesced to the payment of child support in 1982, and he continued to pay until McWright turned eighteen. Despite the fact that he had a reasonable belief that he was not McWright’s biological father, Stroughter never challenged paternity even though he could have demanded DNA testing when he was prosecuted for back child support. After 1985, Stroughter was perempted from attacking the judgment in a nullity action. This peremption has the same effect for the defendants in this matter. The trial court erroneously allowed the defendants to enjoy a right that was foreclosed to Stroughter himself with their collateral attack on Stroughter’s parentage of McWright in this wrongful death proceeding.

Consequently, the trial court should have never forced McWright to undergo DNA testing to prove he was the son of Stroughter, because he already had a valid final judgment stating such. It is immaterial what the results of that test were because the evidence should have never been admitted.

|fiThe facts of this case are analogous to those in Lastrapes v. Willis, 93-1417 (La.App. 3d Cir.4/6/94), 635 So.2d 1281. Jerome Lastrapes, Jr. was born on November 6, 1979, to Rose Willis. Jerome Lastrapes, Sr. voluntarily executed an acknowledgment of paternity on July 28, 1980. In December 1990, the Louisiana Department of Social Services brought an action on behalf of Ms. Willis against Lastrapes for the support of the minor child. On April 8, 1993, Lastrapes filed a petition to disavow paternity alleging that he was not the biological father of the minor child, and that he had discovered this fact in February 1993. Apparently another individual, Sam Joubert, had informed him that he and Ms. Willis had sexual relations in March 1979. An exception of No Right of Action was filed by the state and denied by the trial court which ordered Lastrapes, Willis, and the minor child to submit to blood testing. The state argued that the trial court erred in ordering the blood tests be performed to determine paternity in this disavowal action pursuant to La. R.S. 9:396 when there was a valid preexisting acknowledgment in authentic form. The Third Circuit dismissed Lastrapes’ suit with prejudice. The court recognized that there was no specific codal authority governing the time limit for a father who was not the husband of the mother of the child to bring a disavowal action, and that the code only specifically dealt with disavowal actions by the husband. See, e.g., La. C.C. arts. 187-190. However, La. R.S. 9:305 was enacted in August of 1993, well after Lastrapes filed his suit, and it set a time frame for a disavowal of paternity by a man who was not the husband of the mother as follows:

| ^Notwithstanding the provisions of Civil code Art. 189 and for the sole purpose of determining the proper payor in child support cases, if the husband, or legal father who is presumed to be the father of the child, erroneously believed, because of misrepresentation, fraud, or deception by the mother, that he was the father of the child, then the time for filing suit for disavowal of paternity shall be suspended during the period of such erroneous belief or for ten year's whichever ends first.

As a result, the court determined that Lastrapes did not have a cause of action when he filed his suit in April of 1993. The court determined that La. R.S. 9:305 only gives a cause of action for paternity testing when an action is ancillary to a child support proceeding. According to Black’s Law Dictionary, 5th edition (1983), an ancillary proceeding is:

One growing out of or auxiliary to another action or suit, or which is subordinate to or in aid of a primary action, either at law or in equity. In state courts, a procedural undertaking in aid of the principal action.

In this case, the defendants’ action is the principal action and it is not ancillary to a child support proceeding. To permit a collateral attack on a final judgment in this matter would be in contravention of the law.

The defendants rely heavily of Succession of Robinson, 94-2229 (La.5/22/95), 654 So.2d 682 to support their assertion that the trial court properly allowed DNA testing. We find that Robinson is distinguishable from the case at bar. In Robinson, Hardie Robinson executed a statutory will in 1971 in which he formally acknowledged three children that were born to his wife from her previous marriage. In 1988, Robinson changed the manner in which his assets were to be distributed by executing a new statutory will and revoking the 1971 will. The previously acknowledged women were not mentioned in the 1988 will. After Robinson died in 1992, |7the acknowledged women intervened in the succession seeking to be recognized by the court as Robinson’s acknowledged children and thus allowed to participate in the succession. The trial court found that the 1971 will executed by Robinson was an acknowledgment of the three women as his daughters and that they did not have to undergo DNA testing to prove they were Robinson’s biological children. The supreme court found that under La. R.S. 9:396, the court could force the women to submit to DNA testing. La. R.S. 9:396, a statute aimed at establishing paternity provides:

Notwithstanding any provision of the law to the contrary, in any civil action in which paternity is a relevant fact, or in an action en desaveau, the court, upon its own initiative or upon request made by or on behalf of any person whose blood is involved, may or, upon motion of any party to the action at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to the drawing of blood samples, including but not limited to blood and tissue type, to be determined by appropriate testing procedure. If any party refuses to submit to such tests, the court may resolve the issue of paternity against such party or enforce its order if the rights of others and the interests of justice so require.

Under La R.S. 9:396 the court only has authority to order blood tests where paternity is relevant. Had Stroughter challenged the final judgment wherein he acknowledged that he was McWright’s father within one year from the time he discovered that there was a reasonable probability that he was not his father, then La. R.S. 9:396 may be applicable. However, Stroughter’s failure to make a challenge has caused his cause of action to be per-empted and prevents the defendants or anyone else who would seek to stand in Stroughter’s shoes and invalidate his acknowledgment and the judgment casting him as the father of McWright.

|sWe also find that the instant case is distinguishable from Robinson in that the validity of a final judgment, rather than a mere acknowledgment, is at issue. The Robinson court did not face the issue of whether or not a judgment based on an acknowledgment could be annulled after the one year period following the discovery of its defect has elapsed. Further, in Robinson, the father took direct action to disavow his acknowledgment of the women by revoking the will in which he had previously made the acknowledgment. An acknowledgment in a will that was later revoked cannot be said to have the same force and effect of a final judgment that was never attacked for nullity. Stroughter made no efforts to dispute his acknowledgment of McWright or the judgment that gives rise to the presumption that he was McWright’s father.

The existence of a final judgment stating that Stroughter was the father of McWright creates a strong presumption in McWright’s favor. Rousseve v. Jones, 97-1149 (La.12/2/97), 704 So.2d 229. In support of their exception of No Right of Action, the defendants called Stroughter’s sisters to testify about their knowledge of his relationship with McWright. They asserted that Stroughter and McWright did not enjoy a father/son relationship. In fact, the testimony of Stroughter’s sisters suggested that he knew he was not McWright’s father as early as three months after McWright’s birth. However, that testimony alone is not sufficient to overcome the presumption of parentage. Their testimony only served to demonstrate that Stroughter was not duped into thinking he was McWright’s father by fraud or ill practice, but that he willfully assumed the [ ¡¡responsibility in spite of reasonable information that he may not have been McWright’s father.

We conclude that Stroughter was time barred from seeking to annul the judgment that east him as the father of McWright. As such, it was improper for the trial court to allow the defendants to collaterally attack that judgment when Stroughter would have been perempted from bringing a nullity action. This finding pretermits any discussion of the other issues raised on appeal.

CONCLUSION

Based on the foregoing, we find that the trial court erred as a matter of law in ordering McWright to undergo DNA testing. As such the results of said DNA are inadmissible. We hereby reverse the trial court’s dismissal of McWright from the instant suit, reinstate him as a plaintiff, and remand this matter to the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

ON REHEARING

Before STEWART, GASKINS, CARAWAY, PEATROSS and DREW, JJ.

|, GASKINS, J.

Onterio McWright, along with other plaintiffs, filed suit for the wrongful death and a survival action arising from the death of Andrew Stroughter. The defendants contested McWright’s status as a proper plaintiff by filing an exception for no right of action, which the trial judge ultimately granted. At issue in this appeal is whether the court erred in ordering a DNA test to determine paternity, which was the basis of the granting of the exception.

FACTS

McWright’s mother, Gladystene Harris, filed several proceedings for child support. In these proceedings, Stroughter had stipulated that he was the father of McWright.

In Madison Parish, Louisiana, in 1982, and again in 1984, Stroughter signed a stipulation before two witnesses and a notary that contained this language:

I agree to pay to the Department of Health and Human Resources the amount of ... for the support of the child born to me and Gladystene Harris named herein as follows: Onterio J. McWright 6-8-70.

In King County, Washington, in 1983, Stroughter signed another stipulation before a court commissioner that contained the language:

Defendant is the lawful parent of Onter-io J. McWright, who was born on June 8,1970.

Although these stipulations were a part of, or attached to, orders or judgments imposing child support, none of the orders or judgments made a finding of parentage.

1 ¡.Stroughter never contested this obligation to pay and did, in fact, pay the support until McWright was a major. Now McWright has filed suit for the wrongful death and survival action of his putative father, Stroughter. The defendants contest his right to be a plaintiff in the suit.

In our original opinion, we concluded that Stroughter himself could not have attacked these judgments of support after one year from the time he discovered the fraud or ill practice. La. C.C.P. art.2004. Likewise, we found that the defendants were preempted from contesting the validity of the judgments. We went on to find that the trial judge erred when he ordered a DNA test to determine paternity, and, even though the test showed that Stroughter was not McWright’s father, we concluded that the DNA result should not be considered.

We agree with our original opinion that neither Stroughter, nor third parties, could have successfully attacked the judgment of support after the one year period set forth in La. C.C.P. art.2004. Certainly, it must be surmised that, if Stroughter believed he was not the father and did not contest the acknowledgment or judgment, he must have acquiesced in the judgment. The issue before us now is whether this exception is an attack on the acknowledgment forming the basis of the judgment or an attack on the support judgment itself.

LAW

The following statutes give us guidance.

La. C.C. art. 200:

A father or mother shall have the power to legitimate his or her illegitimate children by an act passed before a notary and two 13witnesses, declaring that it is the intention of the parent making the declaration to legitimate such child or children.

La. C.C. art. 203:

A. The acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in the presence of two witnesses, by the father and mother or either of them, or it may be made in the registering of the birth or baptism of such child.
B. (1) An acknowledgment or declaration by notarial act is deemed to be a legal finding of paternity and is sufficient to establish an obligation to support an illegitimate child without the necessity of obtaining a judgment of paternity.
(2) An acknowledgment by registry creates a presumption of paternity which may be rebutted if the alleged father proves by a preponderance of the evidence facts which reasonably indicate that he is not the father, provided such facts are susceptible of independent verification or of corroboration by physical data or evidence.

La. C.C. art. 206:

A. A person who executed a notarial act of acknowledgment or declaration may, without cause, rescind it before the earlier of:
(1) Sixty days of the signing of the notarial act of acknowledgment or declaration, in a judicial hearing for the limited purpose of rescinding the acknowledgment or declaration.
(2) A judicial hearing relating to the child, including a child support proceeding, wherein the affiant to the notarial act of acknowledgment or declaration is a party to the proceeding.
B. At any time, a person who executed a notarial act of acknowledgment or declaration may petition the court to void such acknowledgment or declaration only upon proof, by clear and convincing evidence, that such act was induced by fraud, duress, or material mistake of fact, or that the person is not the biological parent of the child. Except for good cause shown, the court shall not suspend any legal responsibilities or obligations, including a support obligation, of the person during the pendency of this proceeding.

La. C.C. art. 207:

Every claim, set up by illegitimate children, niay be contested by those who have any interest therein.

| ¿La. R.S. 9:392, in pertinent part:

A. Prior to the execution of a declaration of acknowledgment pursuant to Civil Code Article 203, the notary shall provide in writing, and orally or by directing them to video or audio presentations, the party or parties making the declaration of the following:
(7) (a) A party who executed a notarial act of acknowledgment may rescind the act, without cause, before the earlier of the following:
(i) Sixty days after the signing of the act, in a judicial hearing for the limited purpose of rescinding the acknowledgment.
(ii) A judicial hearing relating to the child, including a child support proceeding, wherein the affiant to the notarial act of acknowledgment is a party to the proceeding.
(b) Thereafter, the acknowledgment of paternity may be voided only upon proof, by clear and convincing evidence, that such act was induced by fraud, duress, or material mistake of fact, or that the father is not the biological father.
(8) All parties to the action have any other rights and responsibilities which may be afforded by law now or in the future.

La. R.S. 9:396, in pertinent part:

A. (1) Notwithstanding any other provision of law to the contrary, in any civil action in which paternity is a relevant fact, or in an action en desaveu, the court may, on its own initiative, or shall, under either of the following circumstances, order the mother, child, and alleged father to submit to the collection of blood or tissue samples, or both, and direct that inherited characteristics in the samples, including but not limited to blood and tissue type, be determined by appropriate testing procedures:
(a) Upon request made by or on behalf of any person whose blood or tissue is involved, provided that such request is supported by a sworn affidavit alleging specific facts which either tend to prove or deny paternity.
(b) Upon motion of any party to the action made at the time so as not to delay the proceedings unduly.

1 .DISCUSSION

While the acknowledgments of paternity in our case were attached to the judgments of support, it is important to note that none of the judgments made any finding of paternity. In fact, the judgments of support did not have to make a finding of paternity since La. C.C. art. 203(B)(1) states that the acknowledgment is a legal finding of paternity and is sufficient to establish an obligation to support an illegitimate child without the necessity of obtaining a judgment of paternity. Even though an acknowledgment is deemed to be a legal finding of paternity, the law allows these acknowledgments to be easily contested.

The acknowledgment of paternity can be contested at any time by the person who executed the acknowledgment. La. C.C. art. 206(B). In Jones v. Rodrigue, 2000-0899 and 2000-0900 (La.App. 1st Cir.11/3/00), 771 So.2d 275, Hamilton sought to annul an acknowledgment he had signed at the hospital. The court noted that although one year had passed since Hamilton found out he was not the biological father, Hamilton was not contesting a judgment, but a notarial act of acknowledgment. The court relied on La. C.C. art. 206 to find that, at any time, a person who executed a notarial act of acknowledgment could petition to annul it. See also Roberts v. Franklin, 96-290 (La.App. 3d Cir.10/9/96), 688 So.2d 1181.

The acknowledger is not the only person who can contest the act. La. C.C. art. 207 provides that every claim, set up by illegitimate children, may be contested by those who have an interest therein. In Succession of Robinson, 94-2229 (La.5/22/95), 654 So.2d 682, discussed in depth in the original opinion, the Supreme Court found that Robinson, as administrator | r,of the succession and a forced heir, had an interest in defeating the intervenors’ claim to participate in the succession.

In addition, when executing the acknowledgment, the notary has the duty under La. R.S. 9:392(A)(7) to advise the acknowledger how the act can bé voided. Clearly, the law has a public policy in favor of allowing the putative father to contest the acknowledgment when the father is not the biological father.

Likewise, the judgment of support is not so sacrosanct that it only can be contested by appeal. As we detailed in our earlier opinion, Stroughter could have contested the judgment itself within one year of finding out that he was not the biological father. Husbands and legal fathers, which Stroughter was not, have up to 10 years to contest a support judgment under La. R.S. 9:305. In Rousseve v. Jones, 97-1149 (La.12/2/97), 704 So.2d 229, Rousseve, like Stroughter, had executed an acknowledgment in connection with a child support proceeding. The court found that while La. C.C. art. 203(B)(1) dispensed with the necessity of obtaining a judgment of paternity, it did create a presumption of paternity. The court concluded, however, that Rousseve could challenge the acknowledgment, holding that when the acknowledged act is ultimately untrue, the acknowledgment may be null, absent some overriding concern of public policy. Rousseve had contested the judgment timely and the case was remanded for further proceedings.

Our inquiry is whether those who have an interest can contest the acknowledgment of paternity in a support judgment once the time limitation has run within which the judgment of support could be contested. In a |7situation such as the instant case, our answer is in the affirmative. Once Stroughter died, new causes of action arose in favor of his children under La. C.C. arts. 2315.1 and 2315.2, the survival action and wrongful death articles. These claims by McWright, the illegitimate, can be contested by the defendants, who have an interest in them. Although McWright was acknowledged, this avowal is null absent a biological relationship. The Louisiana Supreme Court reiterated in Succession of Robinson, supra, the policy that if an acknowledgment is null, it produces no effect. That Succession of Robinson was based on an acknowledgment in a statutory will while Stroughter’s acknowledgment formed the basis of a support judgment is of no moment.- In Rousseve, supra, where the putative father was contesting the support judgment, the Supreme Court reasoned that an action to contest paternity, which is presumed because of an authentic act of acknowledgment, is not truly an action for disavowal, but is an action to annul the acknowledgment.

Using this reasoning of Rousseve, supra, the defendants are not contesting the support judgment but are attacking the validity of the acknowledgment. On first consideration, it would appear that a prior judgment of support, based on an acknowledgment of paternity, would be subject to res judicata or collateral estoppel exceptions. These exceptions would have no merit, however, in that the causes of action and the parties are different in the support proceeding and in the instant claim. See Vines v. Northeast Louisiana University, 36,747 (La.App.2d Cir.3/5/03), 839 So.2d 979, writ denied, 2003-1262 (La.9/19/03), 853 So.2d 638.

|sLa. C.C. art. 207 allows every claim set up by illegitimate children to be contested by those who have an interest therein. On its face, this article gives those who have an interest the right to contest any sort of claim made by illegitimate children with no specific time limitation on the right to assert their opposition. Consequently, the defendants have a right to contest this wrongful death/survival action brought by McWright.

La. R.S. 9:396 gives the court the right to order DNA blood testing in any civil action in which paternity is a relevant fact. Under this statute, the court is required to order testing when timely requested by any party. In the present wrongful death and survival action, a civil action, McWright’s paternity is a relevant fact, bearing on his right to recover. Therefore, the trial court appropriately ordered DNA testing in this matter.

It is well-settled that before DNA blood tests can be ordered, a prima facie case that Stroughter was not the biological father must be made. This was done by testimony adduced at the trial court. Thus, the DNA testing was appropriately ordered, and the results legally admitted. We reverse our original opinion and affirm the trial court’s ruling.

CONCLUSION

The trial court judgment granting the defendants’ exception of no right of action is affirmed. Costs in this court are assessed against McWright.

TRIAL COURT JUDGMENT AFFIRMED.

PEATROSS, J., concurs.

STEWART, J., dissents for the reasons articulated in the original opinion.

DREW, J., dissents for the reasons articulated in the original opinion.  