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Jenkins v. Mangano Corp.11/28/2000
CUSSION
Defendant's Burden of Proof
Manhattan Guest House challenges plaintiff's right of action to proceed under La. Civ. Code art. 927, claiming that her standing to proceed, as Melvin Jenkins' mother, is preempted by the existence of Melvin's daughter, Teresha Shaffer. It is worthwhile to note that Manhattan Guest House is not asserting this action on behalf of Teresha, it is only noting her existence in support of its exception of no right of action. Therefore, because Manhattan Guest House is the party asserting the existence of a child as a basis for its exception, it must prove that Teresha Shaffer is the child of Melvin Jenkins by clear and convincing evidence. La. Civ. Code art. 209; Chatelain v. State, DOTD, 586 So.2d 1373, 1377 (La. 1991).
Who is a Child under 2315.2
In Chatelain, this court determined that the critical requirement for classification of a person as a child under Article 2315.2 is the biological relationship between the tort victim and the child. Warren v. Richard, 296 So.2d 814 (La. 1974). Once the biological relationship is established, an inquiry must be made as to whether the child is classified as legitimate or illegitimate. Civil Code Art. 178. It is of no consequence that the child is legitimate or illegitimate for purposes of deciding whether the child may bring an action under Article 2315, all children have the right to bring an action for wrongful death and survival action. See Levy v. Louisiana, 391 So.2d 68 (1968). However, if the child is illegitimate, Article 209 requires that the child prove, by clear and convincing evidence, that the parent informally acknowledged the child during his lifetime.
Informal Acknowledgment
In discussing informal acknowledgment, appellate decisions have generally referred to the standards set forth in the original La. Civ. Code Article 209 for proving paternity. Such factors include the alleged father's acknowledgment of the child in formal writings or in public or private conversations, causing the education of the child as his own, and living in concubinage with the mother in his home at the time of the child's conception. Sudwischer v. Estate of Hoffpauir, et al, 97-0785 (La. 12/12/97); 705 So.2d 724; Chatelain, 586 So.2d at 1378. Other conduct which has been considered to constitute informal acknowledgment by the alleged father includes rearing the child in his home, naming the child in his will, giving the child his surname, and holding the child out in the community as his own. Keene, Irregular Successions in Louisiana, 7 Loy. L.Rev. 94, 102-3 (1954) However, courts have been reluctant to recognize an informal acknowledgment for purposes of filiation unless the father has recognized the child as his own unequivocally and on several occasions. Succession of Vance, 110 La. 760, 34 So. 767 (1903) (one statement by the alleged father that the doctors were wrong in predicting his children would be afflicted because Eliza James was "as healthy as anybody" did not "suffice to invest [James] with the title of a legally acknowledged ... child"); Succession of Corsey, 171 La. 663, 131 So. 841 (1930) (statements by the alleged father acknowledging Ethel Casson as his child at various times to various parties constituted acknowledgment); Succession of Matte, 346 So.2d 1345 (La.App. 3rd Cir.1977) (an informal acknowledgment of filiation must be unequivocal and sufficiently frequent so that there is little doubt the alleged father truly believed he was the father of the child).
Considering the guidance provided by the original Article 209, we now look to the evidence contained in the record to determine whether informal acknowledgment was proven by clear and convi
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