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Gallo v. Gallo12/3/2003
For these reasons, we dismiss with prejudice the "Petition to Disavow Paternity" as having been perempted; we reverse the judgment of the court of appeal, and we deny Mr. Gallo's motion for reimbursement.
PETITION DISMISSED WITH PREJUDICE; JUDGMENT REVERSED.
JOHNSON, J., dissents and assigns reasons.
VICTORY, J., concurs.
Upon initial inspection, this case presents an issue regarding reimbursement of money. Upon closer scrutiny, one finds issues which explore the underpinnings of the parent-and-child relationship. An ex-husband is asserting a right to recover monies he paid to his ex-wife for the support of a minor child, born during the marriage, who for many years he believed was his biological child. Years after the couple's divorce, it was determined another man was actually the biological father. The trial court denied the ex-husband's claim for reimbursement from his ex-wife. Reversing, the court of appeal awarded the ex-husband reimbursement for the child support paid to the ex-wife. For the reasons that follow, we reverse the court of appeal's ruling and deny the ex-husband's demand for reimbursement.
FACTS AND PROCEDURE
Michael Gallo and Brenda Ann Conner Gallo were married in 1978 and divorced in 1992. Three children were born during the course of the marriage; the youngest, M.L.G., was born April 27, 1985. After the Gallos separated in 1991, the children resided with Mr. Gallo in the family residence.
Numerous procedural matters ensued, generating pleadings and/or documents, which were filed in No. 92-8740 consolidated with No. 92-8972 in the Civil District Court for the Parish of Orleans and which now constitute the record before us. By judgment dated October 6, 1993, Ms. Gallo was ordered to pay $676.00 monthly to Mr. Gallo for the support of the three children, but she was to receive a credit for the tuition she paid directly to the school for M.L.G.
In March of 1995, Ms. Gallo petitioned the court for custody of the three children or, according to the pleading, "at least" custody of M.L.G. Mr. Gallo opposed the change, filing a "Memorandum" in which he made several allegations of Ms. Gallo's failures at parenting and of the "stability" established between himself and the three daughters after the mother had left them. He claimed that as their father, he was the only person who had provided the daughters with a "consistent, dominant presence in their lives." Despite his initial opposition to the change in custody, the Gallos entered into a consent judgment in which provisional custody of M.L.G. was awarded to Ms. Gallo and the parties agreed to attend seminars on parenting skills and communication skills for divorcing couples.
The next year, Ms. Gallo moved for termination of the child support she had previously been ordered to pay, alleging the two older daughters were then 19 and 18 years of age. Judgment terminating her child support obligations was rendered September 20, 1996.
Later, Ms. Gallo filed a rule to show cause why Mr. Gallo should not be ordered to pay child support for M.L.G. The issue was eventually resolved by a May 22, 1998 consent judgment establishing Mr. Gallo's child support obligations.
Mr. Gallo's "Petition to Disavow Paternity" was filed in September 1998, naming Ms. Gallo and the minor, M.L.G., as defendants. The petition alleges that Mr. Gallo is "not the father of [M.L.G.], notwithstanding the fact that the parties were married at the time of her birth .... Petitioner was led to believe that the child ... is his child and erroneously believed the child to be his child." The petitioner requested that an attorney be appointed
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