author: pWEIMER, Justice. | JOHNSON, Justice

text:
    Michael Joseph GALLO v. Brenda Ann Conner GALLO.
    No. 2003-C-0794.
    Supreme Court of Louisiana.
    Dec. 3, 2003.

      Ammon L. Miller, Jr., New Orleans, for Applicant.
    Lee Vance Faulkner, Jr., Gretna, for Respondent.
   pWEIMER, Justice.

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.

12Numerous 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 to represent the minor so that service could be made and the action prosecuted contradictorily against this attorney. An attorney was appointed by the court, but neither he nor counsel for Ms. Gallo filed an answer to the “Petition to Disavow Paternity.”

The next pleading of significance is a motion to compel paternity blood testing. A hearing was held at which counsel for Mr. Gallo, counsel for Ms. Gallo, and appointed counsel for M.L.G. appeared. On July 13, 2000, a judgment was rendered ordering Ms. Gallo and M.L.G. to submit to blood and tissue tests by appointed experts to determine inherited characteristics.

Filed into the record on September 19, 2000, is a notarized form entitled, “Louisiana Vital Records Registry Three Party Acknowledgement [sic] of Paternity (Non-hospital) Legitimate Child.” The form lists Ms. Gallo as the mother of the registrant and Mr. Gallo as the “legal presumptive father.” Joseph Nelson is listed as the biological father. The form states that those three persons agree that the name of the father on the birth certificate shall be changed to the name of the biological father and that the child’s name remain the same. The form contains the signatures of Mr. Gallo, Ms. Gallo, Mr. Nelson, two witnesses, and a notary.

On September 20, 2000, the trial court signed what is entitled a “judgment” stating that “this matter” had been heard that date. This judgment reflects that counsel for Mr. Gallo and counsel for Ms.. Gallo were present; there is no indication of the presence of counsel who had been appointed to represent M.L.G. The judgment Estates that the court considered the three-party acknowledgment of paternity and ordered that Michael Gallo is deemed not to be the biological father of M.L.G. The judgment also relieved Mr. Gallo of his legal obligation to pay for support of the minor child. The judgment does not mention disavowal or Mr. Gallo’s status as legal presumptive father. This judgment was not appealed.

In December 2000, Mr. Gallo filed a rule to show cause why Ms. Gallo should not be required to reimburse a total of $22,125.00 he had paid in child support for M.L.G., plus costs of health insurance paid by him, the costs of paternity testing, and attorney fees. Counsel for Ms. Gallo filed an “Opposition” to Mr. Gallo’s demands for reimbursement which points out that Mr. Gallo never disavowed M.L.G.; there is no judgment of disavowel in the record. Further, Mr. Gallo agreed to pay the child support in a consent judgment.

On October 26, 2001, the trial court signed a judgment denying Mr. Gallo’s request for reimbursement of the child support he had paid; however, the judgment ordered Ms. Gallo to pay $500.00 in attorney fees and $800.00 for paternity tests. Counsel for Ms. Gallo filed a notice of intent to apply for a supervisory writ for review of the awards of attorney fees and testing costs. Counsel for Mr. Gallo filed a notice of intent to appeal the denial of the child support reimbursement.

The court of appeal reversed the trial court’s denial of reimbursement from the mother, finding no prohibition in the law of such reimbursement once an “alleged” father is proven not to be the father of the child. The court of appeal noted the matter was submitted on a brief from Mr. Gallo only. Although the appellate court opinion |5noted Mr. Gallo sought to disavow paternity of his youngest daughter on September 4, 1998, the opinion makes no further mention of the action to disavow or the disposition or lack of disposition of that issue. The court of appeal decreed “the judgment of the district court denying Michael Gallo’s claim for reimbursement in the amount of $22,125 for child support and medical payments is hereby reversed.” Gallo v. Gallo, 02-0575, p. 3 (La.App. 4 Cir. 2/19/03), 840 So.2d 1223, 1224.

Upon application by Ms. Gallo, this court granted a writ. Gallo v. Gallo, 03-0794 (La.6/6/03), 845 So.2d 1074.

DISCUSSION

The issue in this case is not whether the law prohibits reimbursement of the child support payments, as the court of appeal indicated, but whether the law allows reimbursement. The question calls for consideration of how the legislature and the courts have dealt with the concepts of child support in light of fluctuating mores and trends in family law. See, T.D. v. M.M.M., 98-0167, p. 4 (Knoll, Justice, concurring) (La.3/2/99), 730 So.2d 873, 878-879; see also, LSA-R.S. 9:305, quoted infra. The historical background of child support principles is explained in Christo-PHER L. BLAKESLEY, LoüISIANA FAMILY Law § 16.02 at 16-2,16-3 (Louisiana Civil Code Series Issue 1,1996):

| fiLouisiana’s Civil Law tradition,[] from its French and Spanish beginnings, provided for the parental obligation of child support. The Common Law did not have such an auspicious beginning. The Elizabethan Poor Laws in England during the 16th century were the initial weak and ulteriorly motivated attempt to make the father pay the parish ... for child support given his child.... Louisiana’s and continental Codes influenced child support legislation in the rest of the United States. [Original footnotes omitted.]

“The sources of law are legislation and custom.” LSA-C.C. art 1. In Louisiana, as in all codified systems, legislation is the superior source of law. LSA-C.C. art. 1, cmts. (a) and (c). Legislation cannot be abrogated by custom. LSA-C.C. art. 3. Accordingly, the starting point of our analysis is with the codal articles to determine the status of the parties and their reciprocal rights and obligations.

17“The husband of the mother is presumed to be the father of all children born or conceived during the marriage.” LSA-C.C. art. 184. “A suit for disavowal of paternity must be filed within one year after the husband learned or should have learned of the birth of the child; but, if the husband for reasons beyond his control is not able to file suit timely, then the time for filing suit shall be suspended during the period of such inability.” LSA-C.C. art. 189. The policy embodied in the restrictive provisions of the Louisiana Civil Code dealing with the action to disavow is to protect innocent children, born during marriage, against scandalous attacks upon their paternity by the husband of the mother, who may be seeking to avoid paternal obligations to the child. Williams v. Williams, 230 La. 1, 7-8, 87 So.2d 707, 709 (1956). Thus, the traditional and historical position of Louisiana jurisprudence was to zealously guard and enforce the presumption created by Article 184. Pounds v. Schori, 377 So.2d 1195, 1200 (La.1979). The fundamental ends achieved by such court action were preservation of the family unit, avoidance of the stigma of illegitimacy, and aversion to the disinheritance that resulted from a successful disavowal action. There is a public interest in dispelling doubts as to legitimacy which demands the establishment of a relatively short time for bringing challenges. These considerations contributed to this court’s holding, in 1979, that the period of time in Lwhich a husband must file a suit for disavowal to defeat the presumption of his paternity is peremptive. Id.

Twenty years later this court noted that once the bonds of matrimony are dissolved by divorce, the State’s interest in preserving the marital family disappears. T.D. v. M.M.M., 98-0167 at 3-4 (concurring opinion), 730 So.2d at 878. Although some rights spring from the dissolution of a lawful marriage, today’s realities are that illegitimacy and “broken homes” are neither rarities nor stigmas as in the past. Id. Other relatively recent changes in this area of the law include the legislative action making the presumption regarding paternity rebuttable instead of conclusive; Louisiana’s recognition of dual paternity; and the acceptance of DNA testing as conclusive scientific evidence of biological paternity. Id.; see also, cases cited therein.

Nevertheless, recognition by this court that the time period in which a presumptive father must file a suit for disavowal is peremptive has not been repudiated. This court’s recognition of peremption as a concept distinct from prescription formed the basis of enactment by the legislature in 1982 of LSA-C.C. arts. 3458-3461. See LSA-C.C. art. 3458, Revision Cmts.— 1982(b), citing Pounds, 377 So.2d 1195. “Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period.” LSA-C.C. art. 3458. “The provisions on prescription governing computation of time apply to peremption.” LSA-C.C. art. 3459. “Peremption may be pleaded or it may be supplied by a court on its own motion at any time prior to final judgment.” LSA-C.C. art. 3460. “Per-emption may not be renounced, interrupted, or suspended.” LSA-C.C. art. 3461.

loThe one-year peremptory time limitation for bringing a challenge to the paternity of a child born during a marriage begins on the date of the child’s birth rather than when the husband becomes aware of the wife’s alleged fraud and allegedly learns that he is not the father of the child. See Pounds v. Schori, 369 So.2d 1090,1092 (La.App. 1 Cir.1979), affd, 377 So.2d 1195; accord, Brugman v. Prejean, 288 So.2d 702, 704 (La.App. 3 Cir.1974.) Thus, being unaware of misrepresentation or fraud by the mother is not the “inability” to file suit to disavow which LSA-C.C. art. 189 allows as a bar to the commencement of the peremptive period.

Further, Mr. Gallo’s right to disavow pursuant to LSA-C.C. art. 189, once per-empted, was not revived by the three-party acknowledgment entered into by Mr. Gallo, Ms. Gallo, and Mr. Nelson. This court has held that in the absence of a husband’s action to disavow within the statutory period, the right to assail the legitimacy of a child born during a marriage becomes extinct, precluding a mother from establishing her child as the illegitimate offspring of another man. Evans v. Roberson 176 La. 280, 284, 145 So. 539, 541 (1933).

Accordingly, we hold sua sponte that Mr. Gallo’s right to rebut the LSA-C.C. art. 184 presumption of paternity was per-empted because he did not file an action for disavowal within a year of M.L.G.’s date of birth, April 27, 1985. Thus, the “Petition to Disavow Paternity” will be dismissed with prejudice as being’ per-empted.

However, despite his failure to meet the requirements of the civil code provisions regarding disavowal, Mr. Gallo argues he has a statutory right to bring a | ^disavowal action pursuant to LSA-R.S. 9:305. We will now' consider that specific statute.

Enacted in 1993 and amended in 1997, LSA-R.S. 9:305 addresses disavowal of paternity ancillary to a child support proceeding. The statute provides:

A. Notwithstanding the provisions of Civil Code Art. 189 and for the sole purpose of determining the proper pay- or 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 years, whichever ends first.
B. No provision of this Section shall affect any child support payment or arrears paid, due, or owing prior to the filing of a disavowal action if an order of disavowal is subsequently obtained in such action.

For several reasons, the provisions of LSA-R.S. 9:305 are of no avail to Mr. Gallo to show that the peremptive period of Article 189 was “suspended.” First, the record before us is devoid of proof of “misrepresentation, fraud, or deception by the mother.” " This fact cannot be established ipso facto from the results of the blood test establishing that Mr. Gallo is not the biological father of the child. It is apparent from the various pleadings of Mr. Gallo that he perceived himself to be the actual father, although subsequent tests demonstrated he was not the biological father. • If otherwise, Mr. Gallo would not have acted for years in accordance with his belief, now proved to be erroneous, that he was the biological father of M.L.G. There is no direct evidence to establish whether Ms. Gallo herself knew who the biological father was prior to the blood test.

_[uSecond, the suspension allowed by LSA-R.S. 9:305 lasts during the period of the husband’s erroneous belief or for ten years, “whichever ends first.” Mr. Gallo did not file his “Petition to Disavow Paternity” until September 1998, more than thirteen years after M.L.G.’s birth.

Third, when the legislature amended LSA-R.S. 9:305, a provision in 1997 La. Acts, No. 1110, § 2 states that the statute would be applied retrospectively for a husband whose action to disavow had already prescribed only if the husband brought an action ancillary to a child support proceeding within 180 days of August 15, 1997. Mr. Gallo, whose action to disavow pursuant to Article 189 was perempted in 1986, cannot now avail himself of the statutory suspension in LSA-R.S. 9:305 because he did not bring his action until September 4, 1998, well beyond the 180-day grace period. 1997 La. Acts, No. 1110, § 2; cf. Whiddon v. Whiddon, 98-1844, p. 4 (La.App. 3 Cir. 5/5/99), 736 So.2d 296, 299, writ denied, 99-1606 (9/17/99), 747 So.2d 566.

In this matter, Mr. Gallo’s action to disavow was perempted at the time suit was filed. Thus, any action which is predicated upon disavowal of the child, such as a claim for reimbursement of child support, was likewise unavailable to him at that time.

Lastly, even if Mr. Gallo were able to pursue an action of disavowal pursuant to LSA-R.S. 9:305, the statute would bar recovery of the child support payments he previously made. Section B of the statute clearly states the statute does not affect any child support payment “paid, due, or owing prior to the filing of a disavowal action if an order of disavowal is subsequently obtained in such action.” If LSA-R.S. 9:305(B) prohibits any effect whatsoever on child support payments following an order of disavowal obtained subsequently to filing a timely suit for disavowal of paternity, a fortiori, there is no authority for a presumed father, such as Mr. Gallo, |12who has not procured an order of disavowal, to be reimbursed payments he has made.

Next, we must determine if there is any other legal basis which, absent disavowal, allows reimbursement to Mr. Gallo.

Louisiana Civil Code, article 2299, provides, “A person who has received a payment or a thing not owed to him is bound to restore it to the person from whom he received it.” This court recently held that when monies were paid while a judgment in a plaintiffs favor was being appealed devolutively and, after payment, the judgment was reversed, the payor could recover the monies pursuant to Article 2299. Gootee Construction, Inc. v. Amwest Surety Insurance Company, 03-0144 (La.10/10/03), 856 So.2d 1203. Although a final judgment relieves Mr. Gallo of future child support, the “debt” of child support he paid prior to that judgment was not rescinded or annulled as was the debt in Gootee Construction, Inc.

An examination of the child support jurisprudence reveals the courts of appeal have struggled with the issue of what circumstances cause a father’s payment of child support to be “a thing not owed” so that LSA-C.C. art. 2299 would be applicable and reimbursement would be owing. For example, in State ex rel. S.L.J. v. Hammond, 32,508, p. 3 (La.App. 2 Cir. 12/8/99), 749 So.2d 814, 816, the court held 118the State had an obligation under this article to restore to a father child support payments that were collected from him pursuant to an income assignment after the child reached 18 years of age. However, the payments Mr. Gallo seeks to recover were made to a child under the age of 18.

“Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.” LSA-C.C. art. 227. Thus, proof of birth during marriage establishes the obligation of support. State v. Kiper, 408 So.2d 1312, 1314 (La.1982) (Husband of the mother was presumed to be the father of her children born during the marriage and was obligated to support them even pending his actions to disavow paternity.). The law has changed since Kiper, which was a suit brought by the State on a charge of criminal neglect of family. This court has subsequently held that use of the presumption that the husband of the mother is the father of the child to prove the essential element of “parenthood” in a criminal prosecution under Title 14 of the Revised Statutes violates federal and state constitutional guarantees of due process. State v. Jones, 481 So.2d 598 (La.1986); see also, State v. Prosper, 580 So.2d 1085, 1088 (La.App. 4 Cir.), writ denied, 590 So.2d 84 (1991), citing State v. Jones.

In the instant case, the appellate court correctly distinguished this civil proceeding from the criminal neglect of family cases relied upon by Mr. Gallo. However, the court of appeal erred in interpreting our disposition of a claim for reimbursement in another support case brought by the purported father against the State and the mother. In State v. Jackson, 575 So.2d 507 (La.App. 5 Cir.1991), the court of appeal held the State, not the mother, was liable for reimbursement of child 114support payments made pursuant to the Aid to Families with Dependent Children provisions set forth in LSA-R.S. 46:231 et seq. This court granted a writ reversing only that part of the judgment ordering the State to reimburse Jackson. State v. Jackson, 580 So.2d 367 (La.1991). This court made no mention of the mother’s obligation to make reimbursement. Further, Jackson and the instant case are factually different: Jackson was a “purported” father who entered into an agreement with the State to pay child support; Gallo is the legal presumptive father. Consequently, the appellate court in the instant case erred in interpreting Jackson as authority for granting the presumptive father reimbursement pursuant to his claim against the mother.

Jackson was examined in State, Dept. of Social Services v. Bradley, 95-872 (La.App. 5 Cir. 4/30/96), 673 So.2d 1247, writ denied, 96-1318 (6/28/96), 675 So.2d 1129. That case involved a claim for reimbursement by a man who was not married to the mother of the child, making that case factually distinguishable from the instant one. Bradley paid child support through the State for approximately seven years and then discovered, through DNA testing, that the child was not his. He claimed a refund from the State or an offset against future support for a second child of the mother that was his. The majority rejected his claim for a refund from the State, citing Jackson. As to the claim for the offset, the majority, citing no codal or statutory authority, found it would not be equitable to deprive the second child of support, thereby penalizing the child for errors her father contributed to and participated in. Bradley, 95-872 at 2, 673 So.2d at 1249. The dissent, also citing no codal or statutory authority, was of the opinion that equity demanded Bradley be reimbursed for amounts paid in child support for a child he did not father. The dissent found Jackson was not clear, and that reimbursement could come from the mother, either in the form of a direct payment or hBas a credit against future child support due for the second child. Bradley, 95-872 at 1 (dissent), 673 So.2d at 1249.

The dissent in Bradley reads Jackson too broadly. The bottom line in Bradley, as in the instant case, is that although the child support payments were made to the mother, they were made for the benefit of the child, and the mother is under no obligation to refund the monies. Because the child support payments were received by the child, through the mother, the mother was not a person who received a payment not owed her, a requirement imposed by LSA-C.C. art. 2299 for reimbursement to be made.

Proper analysis recognizes that it is not the adults but the child who is at the center of this unfortunate controversy. A father’s obligation to support his children is a “primary, continuous obligation,” based during marriage on parental authority and after divorce on tutorship. Blakesley, Louisiana FaMily Law § 16.02 at 16-5. The child is the veritable creditor of each parent’s unilateral obligation for the child’s upbringing with the special expenses it entails. Id. at 16-6. This father-child relationship between Mr. Gallo and M.L.G. did not end with blood testing that showed Mr. Gallo was not the biological father of M.L.G. He remained her legal presumptive father and was identified as such in the three-party acknowledgment. Fatherhood rests on something more than genes. See, T.D. v. M.M.M., 98-0167 at 2 (concurring opinion), 730 So.2d at 878, citing Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). Furthermore, Louisiana has recognized dual fatherhood. In Smith v. Cole, 553 So.2d 847, 854, (La.1989), this court held that the failure of the husband of the mother of the child to exercise his right to disavow paternity timely established the child as his legal and legitimate child. The legal tie of paternity would not be affected by subsequent proof of the child’s actual biological tie. This court [ ^specifically held that although the child was conclusively presumed to be the husband’s legitimate offspring, the biological father could not escape his support obligations. The question of whether the legal, presumed father also shared in the support obligation was not before the court, and this court declined to hold the legal father will, in all factual contexts, be made to share the support obligations with the biological father and the mother. Id. at 855.

A concomitant of the obligation of child support is the parental authority the father has over the child. “A child, whatever be his age, owes honor and respect to his father and mother.” LSA-C.C. art. 215. “A child remains under the authority of his father and mother until his majority or emancipation.” LSA-C.C. art. 216. “The father is, during the marriage, administrator of the estate of his minor children.” LSA-C.C. art 221. However, this administration ceases upon judicial separation from bed and board of the parents. Id. Our civil code, so grounded in familial solidarity, recognizes a reciprocal obligation of support imposed on children. “Children are bound to maintain their father and mother and other ascendants, who are in need.” LSA-C.C. art. 229.

Other benefits Mr. Gallo received stem from the fact that for four years following the couple’s separation, Mr. Gallo had custody of the child he petitioned to disavow. The right to be considered as the parent who should have custody has been defined as a status that “embrace[s] the sum of parental rights with respect to the rearing of a child, including the child’s care; the right to the child’s services and earnings; the right to direct the child’s activities; the right to make decisions regarding the control, education, and health of the child; and the right, as well as the duty, to prepare the child for additional obligations, which includes the teaching of moral 117standards, religious beliefs, and elements of good citizenship.” Michael H. v. Gerald D., 491 U.S. 110, 118-119, 109 S.Ct. 2333, 2339-2340, 105 L.Ed.2d 91 (1989), quoting from 4 CalifROnia Family Law § 60.02[l][b] (C. Markey ed.1987). Mr. Gallo was entitled to all of the many benefits of fatherhood, not the least of which are the love and affection of this child he considered his and reared as his for so many years. There is nothing in the record to indicate that Mr. Gallo did not receive the love and affection of this child, that he did not feel the special, precious bond a father enjoys with a daughter. In this respect, Mr. Gallo has received much from this child.

Although Mr. Gallo finds himself in an unfortunate situation, which includes adultery by his former wife and the realization this child is not biologically his, he cannot recover the monies he has paid as child support because they were not wrongfully paid (LSA-C.C. art. 2299) and because such a recovery is barred by clear, concise, and specific legislation (LSA-R.S.9:305(B)).

We have mentioned the concerns of some of the lower courts of this state for the “dueling equities” involved in a case such as this and concern for equitable treatment of the father and of the mother. However, we must note that the most vulnerable person in this unfortunate litigation is M.L.G. Problems similar to those in the instant ease have troubled our sister states. In a case touted as one of first impression in the nation, Peterson v. Ransome, 8 Phila.Co.Rptr. 461 (Pa.Com.Pl.) (1983), a mother was estopped from denying a putative father’s paternity where for six years the mother acknowledged the father’s paternity to the child, to the putative father, and to the community. The court noted:

[I]t would be callous not to imagine the emotional trauma sustained by a child who, after six and one half years, is told that his father, in a psychological sense, is not his natural father. To say ... that the law cannot remedy this injury because the child must know his natural father would be contrary to public policy.... [T]he subsequent psychological harm visited upon the child by a unilateral severance of the bond with the putative father is a direct result of years of such representations.

| mId. at 489.

In the instant case, the psychological harm to the child is magnified by the fact that she was held out as the biological daughter of Mr. Gallo by all concerned for 18 years.

Similarly, In re Marriage of Pedregon, 107 Cal.App.4th 1284, 132 Cal.Rptr.2d 861 (2003), is a case in which the appellate court held the trial court abused its discretion in not ordering the husband to pay child support as the child’s putative father. The opinion recognized that:

the importance of a putative father continuing his paternal relationship with a child, including providing emotional and financial support, when the father has represented to the child and the child has been led to believe over a lengthy period of time that the father is his natural father. “We are dealing with the care and education of a child during his minority and with the obligation of the party who has assumed as a father to discharge it. The law is not so insensitive as to countenance the breach of an obligation in so vital and deep a relation, undertaken, partially fulfilled, and suddenly sundered.” [Citations omitted.] [Emphasis supplied.]

Id. 107 Cal.App.4th at 1290, 132 Cal.Rptr.2d at 865.

Thus, to order a reimbursement in the instant case would be to repudiate all of Mr. Gallo’s duties and obligations to M.J.G., a child he treated as his own, along with her two sisters, for the first 13 years of her life. As we mentioned previously, Mr. Gallo judicially admitted his “stable” relationship with his three daughters was an important presence in their lives.

CONCLUSION

Accordingly, we hold the court of appeal’s reversal of the denial of Mr. Gallo’s reimbursement claim was erroneous for several reasons. First, Mr. Gallo’s attempted disavowal action, asserted in his “Petition to Disavow Paternity,” was perempted because it was not brought within a year of the child’s birth as required by LSA-C.C. art. 189. Second, the peremptory period of Article 189 was not suspended pursuant |19to LSA-R.S. 9:305 because his “Petition to Disavow Paternity” was not filed within 10 years of the child’s birth as required by Subsection A of that statute or within the 180-day grace period following the 1997 amendment to that statute. Third, reimbursement of child support payments previously paid is specifically barred by LSA-R.S. 9:305(B). Finally, Ms. Gallo was not required to make reimbursements because she did not receive “a thing not owed” as required by LSA-C.C. art. 2299; child support payments are made for the benefit of the child, not the mother.

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.

VICTORY J., concurs.

JOHNSON, J., dissents and assigns reasons.

| JOHNSON, Justice

dissenting.

I must dissent. The statutory presumptions put in place years ago to protect children born during a marriage were necessary when science had not advanced to a point where paternity could be determined with any degree of certainty. Today, with accurate DNA testing available, there is no longer a need to presume that the husband of the mother is the father of the child. In this case, DNA testing excluded Michael Gallo as the biological father of M.L.G. In addition to the DNA test results, the record contains a three party acknowledgment of paternity, where the mother, the legal presumptive father, and the biological father all agreed that Mr. Gallo is not the father of M.L.G.

We have an archaic statutory structure with time limitations to either disavow paternity or to establish filiation. Where the facts are as clear as they are in this case, we should declare that Mr. Gallo and this child have no mutual obligations of support. This lack of filiation should operate, in like fashion, against Mr. Gallo and preclude him from ever bringing a survival action or wrongful death claim on behalf of this child, should M.L.G. predecease him.

      . This amount was later amended to $200.00 monthly.

      . Although this acknowledgment is filed in the record, there is no indication it was ever admitted into evidence.

      . There is no indication in the record that a writ was ever pursued. Thus, the judgment ordering Ms. Gallo to pay these two items has become final.

      . In this court, counsel for both parties debate whether counsel for Ms. Gallo had proper notice of the appeal and the filing of opposing counsel’s brief. Nevertheless, the record establishes that Ms. Gallo did not respond at the appellate level. Thus, the court of appeal did not have the benefit of opposing argument in considering Mr. Gallo's appeal. Our disposition of the merits of this case makes it unnecessary to address this procedural issue.

      . There is nothing in the record to suggest that there was any evidence introduced to establish the amount of child support paid by Mr. Gallo. It appears the court of appeal based its judgment on allegations in Mr. Gallo's pleadings.

      .Family solidarity was one of the three ideological pillars of the Code Napoleon, along with freedom of contract and private property; these ideological pillars were considered necessary to overthrow the complex restraints of feudalism. Shael Herman, "The Louisiana Civil Code: A Europeon Legacy for the United States” (1993) atp. 38.
      The drafters of the [Louisiana] Civil Code considered the family the basic cell of society and the protector of the future of society. The Civil Code provisions were influenced by middle class values and specifically by a sense that the family was a closely knit group under the authority of ... strong parents. These values are reflected particularly in provisions concerning the economic rights of a family to the wealth accumulated by a family member. When one considers the financial shakiness of the public institutions designed to keep the family afloat (welfare, social security, etc.), it is heartening to find a private law concerned with the material well-being of the family. If the Civil Code rules we describe appear anachronistic, perhaps it is because we no longer share the code drafters’ assumptions about the centrality of the family’s role in society.
      In the disposition of property, the Civil Code promotes family solidarity. Although in other states familial financial responsibilities do not routinely go beyond what is necessary for periodic support of dependent children and spouses, Louisiana law has traditionally imposed support obligations on a parent and has generally insured that a spouse will receive family capital in the form of community property and that minor and incompetent children will receive fixed shares. Although responsibility to a person's family restricts his autonomy, the code’s restrictions permit considerable latitude to dispose of property outside the family circle, to favor one minor child over another, and even to alter the share of capital to which a spouse is entitled. These features of code regulation permit the conclusion that the Civil Code stresses family responsibility over individual autonomy to a greater extent than the law of other states in which the balance tips towards autonomy. [Footnote omitted.]

        Id. at 53-54.

      . For a thorough history of this presumption see T.D. v. M.M.M., 98-0167 at 1-4 (Kimball, Justice, dissenting), 730 So.2d at 880-882.

      . Previous to a 1999 amendment to Article 189, the time period had been one hundred and eighty days. Although that time period was in effect at the time of M.L.G.'s birth in 1985, the legislature specified that the amendment was to have retroactive effect.

      . In Williams, the husband of the mother requested an order requiring the mother and the daughter he was attempting to disavow to submit to blood testing. The order was denied, and thus, the husband was unable to rebut the presumption of LSA-C.C. art. 184, which at that time was a conclusive presumption. The rationale of Williams is still viable although, since 1989, the law has allowed a husband, in a disavowal action, the use of negative blood tests as proof that he is not the biological father of the child born during his marriage to the mother. LSA-C.C. art. 187(1).

      . Act 430 of the 1976 Regular Session, amending LSA-C.C. arts. 184-190.

        . The court of appeal stated there was nothing in the record or pleadings to suggest that the time limitation commenced at any date other than the date of the child’s birth. This observation was made despite the husband's allegation in his petition to disavow that he did not cohabit with his wife at a time when she could have conceived a child. We note Mr. Gallo has made no such allegation.

      . See LSA-C.C. art 3460, quoted supra, which allows this court to notice peremption on its own at any time prior to final judgment.

      . Once again, we note there is no judgment in the record which serves to disavow this child.

      . As previously mentioned, Louisiana recognizes dual paternity. Smith v. Cole. 553 So.2d 847, 854 (La.1989). However, the legislature's enactment of LSA-R.S. 9:305 "for the sole purpose of determining the proper payor in child support cases” appears to be a modification of the concept of dual paternity. Thus, the legislature has expressed a concern for an equitable solution to the unfortunate situation of a man paying child support for a child who is not his biological child, but was born during the marriage to the mother. See discussion, infra, of State, Department of Social Services v. Bradley, 95-872 (La.App. 5 Cir. 4/30/96), 673 So.2d 1247, writ denied, 96-1318 (628/96), 675 So.2d 1129.

      . The judgment relieving Mr. Gallo of his child support obligation is not an “order of disavowal" as called for in LSA-R.S. 9:305(B). The attorney appointed to represent M.L.G. did not participate in the hearing that resulted in that judgment which stated Mr. Gallo was not deemed to be the biological father of M.L.G. The disavowal action attempted by Mr. Gallo suffers from many other infirmities. First, the petition was not answered by either the mother or the child; thus, issue was not joined. Second, there is nothing in the record to indicate any evidence was presented to the court, such as the blood test results or the three-party acknowledgment. The purpose of the appointment of an attorney for the child in an action to disavow is not to obtain service on the child, but to insure that the legitimacy of the child will be maintained wherever possible and that the strict requirements of proof are met. Stewart v. Stewart, 233 So.2d 305, 309 (La.App. 1 Cir.1970).

      . The lower courts have seldom cited Article 2299.

      . Child support legislation is now "vast, various and spread out over numerous codes and statutes.” Blakesley, Louisiana Family Law § 16.01 at 16-1. Alistof pertinent legislation given by Professor Blakesley is a helpful resource for statutory authority regarding child support. Id.

      . In the instant case that identical question is not before this court.


source: Caselaw Access Project

author: I .TRAYLOR, J.

license: Public Domain

text:
    Susan McKneely FOWLER, v. Claude Ed FOWLER.
    No. 2003-C-0590.
    Supreme Court of Louisiana.
    Dec. 12, 2003.
    Rodney C. Cashe, Cammie deShea, Stelly Richardson, Cashe, Lewis, Coudrain & Sandage, Hammond, for Applicant.

      Harry A. Johnson, III, Phelps Dunbar, Baton Rouge; Vincent A. Saffiotti, Downs & Saffiotti, Baton Rouge, for Respondent.
   I .TRAYLOR, J.

In the instant case, we granted certiora-ri to determine whether the proceeds of a life insurance policy paid during the matrimonial regime of acquets and gains are the separate or community property of the beneficiary spouse. We conclude that life insurance proceeds are sui generis and not governed by codal principles which govern community property. We thus overrule Thigpen v. Thigpen, 231 La. 206, 91 So.2d 12 (1956) and hold that life insurance proceeds received by a spouse during the existence of a matrimonial regime of ac-quets and gains are separate property.

FACTS AND PROCEDURAL HISTORY

Claude Ed Fowler and Susan McKneely Fowler were married on June 5, 1965. Their son, Claude E. Fowler, Jr., was born February 22, 1969. During the Fowler’s marriage, the Mutual Life Insurance Company of New York issued three whole life insurance policies on Claude Fowler, Jr., totaling $500,000. The first policy, issued when Claude, Jr. was seventeen years old with a face amount of $100,000, was acquired on January 16, 1986; the second policy was issued on September 17, 1987 12(1987 policy), with a face amount of $100,000; and the third policy was issued on February 3, 1988 (1988 policy), with a face amount of $300,000. In all three policies, Susan M. Fowler was designated as first beneficiary and Claude Ed' Fowler was designated as second beneficiary. Although Susan Fowler retained all rights of ownership arising out of the three whole life policies, the last two policies reverted the right to designate a beneficiary to her son, Claude, Jr., upon his twenty-first birthday.

Claude Fowler, Jr. died in an automobile accident in March 1990, at the age of twenty-one, having never' exercised the right to change the beneficiary on the 1987 and 1988 policies. Accordingly, the proceeds of all three policies were paid to Susan M. Fowler. Mrs. Fowler initially deposited the funds in a Prudential Annuity account in the name of Susan M. Fowler and, subsequently, in a Merrill Lynch account in the name of Susan M. Fowler.

In 1999, eight years after receiving the insurance proceeds, Susan Fowler filed a petition for divorce. A judgment of divorce was rendered on April 5, 1999, and Susan Fowler subsequently filed a community property partition suit on June 1, 1999. Although all claims arising out of the dissolution of the community were resolved by a written stipulation, the Fowl-ers reserved for a decision by the court the sole issue of whether $450,000 of the life insurance proceeds are the community or separate property of Susan M. Fowler. After a partition hearing, the trial court declared the proceeds of the life insurance policies to be the separate property of Susan M. Fowler. On review, the Court of Appeal, First Circuit, affirmed. Fowler v. Fowler, 02-0222 (La.App. 1 Cir. 12/31/02), 834 So.2d 659. Mr. Fowler sought writs of certiorari with | ¡¡this court, which we subsequently granted. Fowler v. Fowler, 03-0590 (La.5/2/03), 842 So.2d 1089.

DISCUSSION

The only issue this court must decide is whether life insurance proceeds are governed by the principles of community property. Mrs. Fowler argues that life insurance is sui generis, as established by a long line of jurisprudence which repudiates the Thigpen holding. We agree and find that life insurance proceeds are sui generis in this state, and thus subject to separate rules. Therefore, we overrule this court’s decision in Thigpen v. Thigpen, 231 La. 206, 91 So.2d 12 (1956), and extend to the instant situation the rationale of the long line of jurisprudence which treats life insurance proceeds as sui generis.

A life insurance policy is a legal contract between the policy owner and the insurance company. Dennis C. Cuneo, Life Insurance As An Estate Planning Tool, 23 Loy. L.Rev. 59, 59 (1977).- Life insurance contracts originate from common law countries; the French Civil Code in fact viewed life insurance as a form of gambling. Cuneo, at 69; Eugene A. Nabors, Civil Law Influences Upon the Law of Insurance in Louisiana, 6 Tul. L.Rev. 369, 369 (1932). Consequently, the community property provisions of the Louisiana Civil Code were not drafted with insurance in mind; the legislature in the Louisiana Code of 1808 provided that insurance is “foreign to this code.” Nabors, at 369-372. As a result, the legislature’s failure to account for life insurance has resulted in irreconcilable principles between the rights of life insurance proceeds beneficiaries and traditional civilian principles. Louisiana jurisprudence has responded to this conundrum by traditionally finding that life insurance is sui generis and therefore not subject to many traditional civilian principles. Thus, the protection afforded to life insurance proceeds, although now adopted and codified in the | insurance Code, are the outgrowth of judicial precedent and not legislation. Mary Ticker v. Metropolitan Life Ins. Co., 11 Orleans App. 55 (1914); Sizeler v. Sizeler, 170 La. 128,127 So. 388 (1930).

As a result of the Civil Code’s failure to address this problem, life insurance proceeds enjoy a status not accorded to other property in Louisiana. This court has repeatedly refused to extend the civilian principles enunciated by the Civil Code to the realm of life insurance proceeds. Thus, insurance proceeds are protected from the heirs and legatees of the insured, Nulsen v. Herndon, 176 La. 1097, 147 So. 359 (1933), Succession of Erwin, 169 La. 877, 126 So. 223 (1930); creditors of the insured, Succession of Porter, 4 Pelt. 200 (La.1921); claims for collation, Sherwood v. New York Life Ins. Co., 166 La. 829, 118 So. 35 (1928); actions for reduction; Sizeler v. Sizeler, 170 La. 128, 127 So. 388 (1930); and form of donations inter vivos, La.Rev.Stat. Ann. § 22:1521.

It has long been settled authority that the disposition of life insurance proceeds are sui generis and subject to separate rules which may or may not coincide with the rules of the Civil Code generally applicable to community property. The jurisprudence has traditionally based this protection on the contractual nature of insurance. In Mary Ticker v. Metropolitan Life Ins. Co., 11 Orleans App. 55 (1913), a husband took out a life insurance policy during marriage, and subsequently changed the primary beneficiary from his wife to his mother. After his death, the decedent’s wife and minor son attempted to claim the proceeds, which comprised the entirety of the estate. On rehearing, the Ticker court held that the decedent’s change in beneficiary was effective based on the form provided by the policy. Id. at 59-60. Noting that the change in beneficiary was correct in form, the court awarded the proceeds to the mother over the claims of the decedent’s widow and son. Id. The Ticker court justified the result on the contractual nature of the insurance contract, stating:

| KFor the contract, being lawful, must be given its effect according to the intention of the parties thereto; and we cannot for the purpose of defeating that intention apply to the contract provisions of law governing contracts of a different nature.
As we appreciate the jurisprudence of this State, a life insurance policy is a contract, sui generis, governed by rules peculiar to itself, the outgrowth of judicial precedent, and not of legislation. Id. at 60.

Likewise, in Sizeler v. Sizeler, 170 La. 128, 127 So. 388 (1930), this court refused to recognize the collation claims of a forced heir to receive proceeds vis-a-vis a beneficiary wife based on contractual provisions in the insurance policy. Following the rationale of Mary Ticker, the Sizeler court found that life insurance proceeds inure to the beneficiary directly, by the sole terms of the policy itself, and are not subject to the laws of donation mortis causa or donation inter vivos, stating:

As the proceeds of life insurance policies form no part of the estate of the deceased, and inure to the beneficiary directly and by the sole terms of the policy itself, the right of defendant to the avails of the policies in this case does not arise from legal coverture, nor from the civil effects of marriage contracted in good faith, but solely from the terms of the policies in which she has been named the beneficiary by the decedent.

Id. at 389. Accordingly, the Sizeler court refused to draw distinction between the classes of beneficiaries named in life insurance policies. Id. at 389-390.

More recently, this court addressed life insurance proceeds in T.L. James & Co. v. Montgomery, 332 So.2d 834 (La.1975) and Standard Life Ins. Co. v. Franks, 278 So.2d 112 (La.1973). T.L. James held that a son, as beneficiary of a life insurance policy, was entitled to life insurance proceeds above the claims of the decedent’s widow and heirs. Id. at 847-848. This court specifically rejected the widow’s argument that allowing a husband to separate life insurance proceeds- from the estate circumvents the laws relating to forced heirship and community property. Id. Commenting on the nature of life insurance, the court stated:

| ijlt is well-settled in Louisiana that the proceeds of life insurance, if payable to a named beneficiary other than the estate of the insured, are not considered to be a part of the estate of the insured. They do not come into existence during his life, never belong to him, and pass by virtue of the contractual agreement between the insured and the insurer to the beneficiary. Life insurance proceeds are not subject to Civil Code articles relating to donation inter vivos or mortis causa, nor are they subject to community claims or the laws regarding forced heirship. (Citations omitted)

Id. at 847.

Finally, this court in Standard Life Insurance upheld an ex-wife’s claim as beneficiary of a life insurance policy. In rejecting the argument that a catch-all phrase which conveyed to her husband all community assets not specifically described in the community settlement agreement, the court stated:

The death Benefits of the life insurance policy were never community property, for there was a named beneficiary other than the estate of the insured. Death benefits payable to one other than the estate are not part of the community of acquets and gains, and they were not made here part of that community through the settlement agreement. We need only examine the contract of insur-anee, therefore, to determine to whom are due the funds on deposit. The contract of insurance contained a provision for the change of beneficiary. The deceased did not exercise the right to change the beneficiary. We need not inquire into whether he desired to changed the beneficiary, for we are bound by the unambiguous contract which names the beneficiary. Standard, 278 So.2d at 114.

Mary Ticker, Sizeler, T.L. James, and Standard clearly stand for the proposition that the disbursement to the beneficiary of life insurance proceeds are governed by the contractual provisions, and that Civil Code provisions are inapplicable. Although these cases are factually dissimilar from the instant case because they involve the devolution of an estate rather than the dissolution of community property, we believe the principles are the same. Thus, the rules of contract provide the primary basis for the protection traditionally afforded to life insurance proceeds in Louisiana.

Based on the foregoing cases, the principle that life insurance proceeds are sui generis has led Louisiana courts for decades to look to the provisions of the policies |7themselves and any pertinent portions of the Insurance Code to resolve disputes concerning such policies.

Applying these precepts to the instant case, the language in all three policies inure solely to Mrs. Fowler’s benefit; Mr. Fowler is clearly named as a secondary beneficiary to receive proceeds only if Mrs. Fowler predeceased the insured. Although Mr. Fowler argues that the proceeds were not in dispute during the existence of the community and therefore the insurance company was not required to pay the proceeds to anyone other than the named beneficiary, we refuse to require Mrs. Fowler, as sole beneficiary, to split ownership of the proceeds upon termination of the community. Such a finding would derogate from the contractual provisions designating her right as sole beneficiary.

Moreover, the Thigpen court’s reliance on those cases where the insured named his estate as beneficiary was erroneous. We find that the case sub judice is also distinguishable from that line of cases where the insured names his estate as beneficiary. See, Berry v. Franklin State Bank & Trust Co., 186 La. 623, 173 So. 126 (1937); Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169 (1956).

Thigpen v. Thigpen, 231 La. 206, 91 So.2d 12 (1956), involved a similar fact situation as the instant case. The Thigpen husband, as the named beneficiary, received life insurance proceeds on the life of his son during the community regime. Upon divorce, Mrs. Thigpen claimed one-half of the proceeds as community property. With little analysis, the Thigpen court adopted the principles applied to the situation where life insurance is taken out in favor of the insured’s estate. Id. at 21. However, the cases in which life insurance is taken out in favor of the insured’s estate involve significant distinctions from the situation where life insurance is taken out in favor of an individual. The application of codal principles to proceeds in cases where the insured’s estate is | ¡¡named as beneficiary does not interfere with the contractual right of the beneficiary to receive proceeds. When the insured names his estate, the proceeds must devolve accordingly and may not stay in the estate indefinitely. The estate is not a person and cannot keep the proceeds, nor does the insurance contract provide the manner in which the executor or estate should distribute such funds. Thus, it is consistent with the contractual intent to apply codal principles of community property and sue-cession law to the proceeds left to the estate of the insured. In the instant case, however, the beneficiary is a named individual. Thus, the right to ownership of the proceeds should devolve in accordance with the contract provisions which are clear and unambiguous.

CONCLUSION

We therefore hold that the right to life insurance proceeds are sui generis and not governed by the codal principles. Accordingly, life insurance proceeds go to the named beneficiary in accordance with the provisions of the life insurance contract, without regard to community claims and, as such, are the separate property of the named beneficiary spouse.

DECREE

For the reasons assigned, the judgments of the lower courts are affirmed.

AFFIRMED.

      . According to the stipulation, the parties agreed that if the court determines the asset to be the separate property of Susan M. Fowler, no further accounting or monies are due Claude Ed Fowler. Thus, we need not address the issue of whether Claude Ed Fowler is due reimbursement.


author: | .PER CURIAM.

text:
    STATE ex rel. Truman CLAVELLE, v. STATE of Louisiana.
    No. 2002-KH-1244.
    Supreme Court of Louisiana.
    Dec. 12, 2003.
    Donald W. North, Baton Rouge, for Applicant.
    Truman Clavelle, pro se.
    J. Phil Haney, Renee M. Louviere, Walter J. Senette, Jr., for Respondent.
   | .PER CURIAM.

In the present case, relator, unrepresented by counsel at his probation revocation hearing and uninformed of the time limits for seeking supervisory review, finds himself now seeking out-of-time writ review after his initial attempt to attack his revocation in post-conviction proceedings was denied on the merits by the district court but rejected in the appellate court on grounds that he had failed to file for supervisory review within 30 days of the revocation order. The court of appeal also took the view that post-conviction proceedings were otherwise not available to review a judgment revoking probation because such an order does not constitute a conviction for purposes of La.C.Cr.P. art. 930.3, providing grounds for post-conviction relief. State v. Clavelle, 01-1128 (La.App. 3rd Cir. 11/14/01). Thereafter, when relator filed another application for post-eon-viction relief seeking out-of-time supervisory review of his probation revocation, the trial court and appellate court denied relief on grounds that no authority exists for reinstating a defendant’s right to seek discretionary review in the courts of appeal. State v. Clavelle, 02-0054 (La.App. 3rd Cir. 3/26/02).

We need not address the correctness of the latter ruling under our decision in State v. Counterman, 475 So.2d 336, 340 (La.1985), which recognized that a trial court “may grant post conviction relief reinstating defendant’s constitutional right to appeal after the time for appealing has elapsed.” No appeal lies from an order revoking probation, State v. Manuel, 349 So.2d 882 (La.1977); State v. Rexford, 95-0152, p. 2 (La.App. 1st Cir. 6/28/95), 658 So.2d 27, 28, and while supervisory review provides a direct means for contesting the trial court’s action, we have recognized that post-conviction proceedings may also afford an avenue of relief. State ex rel. Ratcliff v. State, 565 So.2d 923 (La.1990)(“[A]s the Court of Appeal stated, claims of improper revocation of probation should be presented in a post conviction petition to the Fourth Circuit.”).

In the present case, at the close of the revocation hearing, the district court advised the unrepresented relator that he had “two years from when the sentence becomes final to apply for post-conviction relief.” Relator filed for post-conviction relief well within that period of time and the state acknowledges that he then filed for review in the court of appeal within the return date set by the trial court after it denied his application in July, 2001. Relator thereby attempted to comply with what he reasonably believed were the procedural requirements for preserving his claims for review.

Under these particular circumstances, the court of appeal erred in failing to afford relator review of the merits of his claims regarding revocation of his probation. This case is therefore remanded to the court of appeal for purposes of providing relator with reasonable time in which to file for review of his revocation hearing and for a ruling on the merits of his claims.


author: | .KUHN, J.

text:
    STATE of Louisiana v. Robert “Bob” ODOM.
    No. 2002 KA 2698.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Writ Denied Oct. 17, 2003.

      Doug Moreau, District Attorney, Baton Rouge by Sandra Ribes, Mark Pethke, Assistant District Attorneys, Counsel for Appellant State of Louisiana.
    Mary Olive Pierson, Karl Koch, Baton Rouge, Counsel for Defendant/Appellee Robert “Bob” Odom.
    Before: KUHN, DOWNING, and GAIDRY, JJ.
   | .KUHN, J.

Defendant, Robert “Bob” Odom, the Commissioner of the Louisiana Department of Agriculture and Forestry (Department), was indicted by a grand jury and charged with 21 counts of various felony offenses including public bribery, conspiracy to commit public bribery, felony theft, conspiracy to commit felony theft, extortion, malfeasance in office, filing or main-taming false public records, money laundering and conspiracy to commit money laundering. The state subsequently dismissed Counts 4, 5, 9,10, 12,13, 14,15,16, 17, and 21. The background and facts of the case are stated in State v. Odom, 02-2404 (La.App. 1st Cir.06/27/03), 861 So.2d 202, also decided this date. In this case, the state appeals the December 5, 2002, and December 20, 2002 trial court rulings granting the defendant’s motions to quash the entirety or portions of Counts 1, 2, 3, 6, 7, 8,11, and 18.

For the reasons that follow, we reverse that portion of the trial court’s December 5, 2002 ruling that quashes any allegations in the bill of particulars involving Tommy Roshto from 1987 through 1992. Otherwise, we affirm the December 5, 2002 and the December 20, 2002 rulings regarding defendant’s motions to quash.

“Including but not limited to” language of Counts 1, 2, 3, and 18

On December 20, 2002, the trial court ruled that the “including, but not limited to” language in Counts 1, 2, 3, and 18 of the indictment was quashed. In Count 1, defendant is charged with conspiracy to commit public bribery by accepting “directly or indirectly, anything of apparent value, including but not limited to cash payments, and a condominium .... ” In Count 2, defendant is charged with accepting “directly or indirectly, anything of apparent present or prospective value, including but not limited to cash payments from Tommy Roshto .... ” In Count 3, defendant is charged with accepting “directly or indirectly anything of apparent present or prospective value, including, but not limited to a condominium disguised as a sale from Lehman Williamson .... ” In Count 18, defendant is charged with filing or maintaining false records by filing state tax returns from August 20, 1998, through August 20, 2002, containing false statements, “including but not limited to failing to report income from his | ^campaign, hunting club expenses, a truck for his son, and other personal expenses paid for by his campaign.”

The state’s bill of particulars contains over 10 pages describing the conduct pertaining to Counts 1, 2, and 3. As to Count 18, the bill of particulars contains over 4 pages describing the conduct listed in the indictment. The state argues that, since the bill of particulars made defendant fully aware of the nature of the charges, the trial court was incorrect in quashing the “including but not limited to” language. Defendant argues: 1) the language allows the charge to be “openended” and is not a “definite” statement of the facts constituting the offenses in the indictment, 2) the court will not be able to determine whether evidence is relevant, 3) the state will be able to change the charge and he is unable to prepare a defense because he must wait until trial to learn what other conduct may be prosecuted. Defendant further contends he will be prejudiced when the jury hears the vague language of the indictment.

We find no error in the trial court’s ruling quashing the “including but not limited to” language. La.Code Crim P. art. 464 requires that the indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. The challenged language would allow the state to submit proof as to conduct that has not been specified in either the indictment or the bill of partieu-lars. Such action would undermine the-requirement of conciseness in the indictment and negate the reason for the bill of particulars. Unnecessary allegations in an indictment may be disregarded as surplus-age. La.Code Crim. P. art. 486. Thus, we conclude that the trial court did not abuse its discretion in quashing the “including but not limited to” language of Counts 1, 2, 3, and 18 of the indictment.

|4This argument lacks merit.

Count 2

Count 2 charges defendant with public bribery by receiving bribes from Tommy Roshto “[f]rom on or about 1985 continuing through December 1992” to influence the granting of warehouse food storage contracts with the Department.

The state filed several answers to defendant’s motion for a bill of particulars. In the first answer, the state alleges that defendant’s involvement in the conspiracy began in 1985 and continued into July 2002, and that Tommy Roshto was one of the persons in the conspiracy. The answer further states that Roshto gave a Department employee, who was responsible for transferring commodities to warehouses, a case of Jack Daniel’s liquor and cash for sending more food to Roshto’s warehouse. No date is alleged for these acts. The bill of particulars further indicates that in 1985, Tommy Roshto’s father, Roy Roshto, received a payment for the use of his warehouse that was higher than his original low bid. Alleged cash kickbacks were paid to defendant from Roy Roshto through another person during the years of 1988 and 1989. The bill of particulars also states that on two occasions, Tommy brought the cash directly to defendant. From 1991 through 1994, after his father died, Tommy allegedly agreed to make monthly payments indirectly to defendant. Additionally, the state alleges that in December of 1992, Tommy Roshto gave bribes to defendant in Las Vegas in the form of cash and a check. The list of political contributions to defendant’s campaign from warehouse owners shows that $5,000.00 was contributed by Tommy Roshto to defendant on September 8, 1987.

Defendant filed a motion to recuse the district attorney based upon the fact that he had been the judge and rendered a judgment in a 1985 civil lawsuit involving some of the same events that serve as the basis for the bribery charges. The next day the state filed a revised bill of particulars amending the beginning year of defendant’s involvement in the conspiracy to 1987. Defendant alleges that the state took this action to avoid an adverse ruling on the motion to recuse. Subsequently, the trial judge denied the motion to recuse the district attorney. The state filed three more revised answers to the bill of particulars, with the final answer filed on November 8, 2002.

|sOn December 5, 2002, the trial court issued a ruling on defendant’s motions to quash and stated that the time period subject to prosecution for the offense in Count 2 was from 1987 through December 1992. The court also quashed “all allegations and particulars” except for a list of 10 specific contributions from warehouse owners to the Odom campaign from August 24, 1987, through December 11,1992.

The state argues that the December 5 ruling granting the motion to quash amounts to a prohibited pre-trial motion in limine excluding evidence, that the ruling prevents the admission of particular evidence at trial and that the ruling conflicts with established law that rulings on relevancy should be made during the trial. The state contends that the evidence pertaining to the quashed portions of the counts is, nevertheless, admissible under La.Code Evid. art. 404(B)(1) because it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

Defendant contends that the bill of particulars amended the time period in the indictment to criminal conduct beginning in 1987, not 1985, as alleged in the indictment, and that the ruling quashing a portion of the contribution list merely conforms the list to that time period. Defendant further argues that the motion to quash is not used to exclude evidence and does not present the issue of admissibility of evidence.

As stated above, La.Code Crim. P. art. 464 provides that an indictment shall set forth the essential facts constituting the offense charged. The trial court may require the district attorney to furnish a bill of particulars setting forth more specifically the nature and cause of the charge against the defendant. If it appears from the bill of particulars furnished under La. Code Crim. P. art. 484, together with any particulars appearing in the indictment, that the offense charged in the indictment was not committed, or that the defendant did not commit it, or that there is a ground for quashing the indictment, the court may on its own motion, and on motion of the defendant shall, order that the indictment be quashed unless lathe defect is cured. La.Code Crim. P. art. 485. An appellate court reviews such a ruling for abuse of discretion. See State v. Atkins, 360 So.2d 1341, 1344 (La.1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402 (1979). A motion to quash may be based on the ground that “[t]he indictment fails to charge an offense which is punishable under a valid statute.” La.Code Crim. P. art. 532(1).

A bill of particulars ordinarily is not a part of an indictment or information nor a substitute, amendment or supplement thereto. 42 C.J.S. Indictments and Infor-mations § 140 p. 465. Additionally, the bill of particulars “neither strengthens nor weakens an indictment or information ... [and] cannot change the offense charged or in any way aid an indictment fundamentally bad.” 42 C.J.S. Indictments and Informations § 140 p. 465. The prosecution is confined in its proof to the items in the bill of particulars. The state may overcome this limitation by moving to amend the statement of particulars, but bears the burden to demonstrate that defendant will not suffer prejudice as a result of the amendment. If defendant waits until the close of arguments or the trial, his right to object that the bill of particulars limits the scope of the evidence may be waived. 42 C.J.S. Indictments and In-formations § 140 p. 466.

In the instant case, Count 2 of the indictment charges defendant with accepting payments from Tommy Roshto to influence the granting of food storage warehouse contracts with the Department “[f|rom on or about 1985 continuing through December 1992.” Herein, the state’s bill of particulars contains over ten pages, which address Counts 1, 2, and 3 collectively. The bill of particulars states that defendant’s “involvement in the conspiracy began in 1987 and continued into July 2002” and that defendant conspired with warehouse owners “to manipulate the process for warehouse food storage .... ” The particulars further allege that in exchange for the award of contracts, these owners paid bribes to defendant in the form of direct payments, campaign contributions and a condominium given to defendant’s daughter. The state submits a list of warehouse owners’ campaign contributions to defendant from November 1985 through September 1999. The list indicates the amounts of the campaign contributions, the names of the persons 17or companies making the contribution and the dates of the contributions. The state contends that the contributions are “acts in furtherance and some are bribes.”

When the indictment and bill of particulars are read in conjunction with the trial court’s December 5 and December 20 rulings, the remaining allegations of Count 2 charge that defendant accepted campaign contributions from Tommy Roshto from 1987 through December 1992 with the intent to influence the award of warehouse food storage contracts. The trial judge’s ruling of December 5 quashed “all allegations and particulars” except for 10 specific items on the contribution list from the date of August 24, 1987, through December 11, 1992. We note that only one of these contributions, one made on September 8, 1987, is listed as being from Tommy Rosh-to.

The trial court’s ruling limiting the charged conduct to that involving Roshto between 1987 and 1992 is ■ correct. Although the indictment lists the period in Count 2 as beginning in 1985, a reading of the bill of particulars shows that the conduct charged in Count 2 (bribes from Roshto) began in 1987. There are no allegations as to conduct related to Tommy Roshto in 1985 or 1986. While the bill of particulars may confine the state’s proof at trial to the dates listed therein, it cannot change the offense charged or detract from it. The trial court, in considering the motion to quash the indictment, must construe those facts set out in the bill of particulars to be true and determine whether or not, if proved, they constitute the crime charged. State v. Bessar, 213 La. 299, 310, 34 So.2d 785, 789 (1948). See also State v. Picou, 236 La. 421, 428, 107 So.2d 691, 693-694 (1958).

In this instance, the bill of particulars is not amending or limiting the indictment; rather, Count 2 of the indictment read in conjunction with the bill of particulars fails to charge an offense occurring in 1985 and 1986. Additionally, the time period subject to prosecution can run only through December 1992, the date set forth in the indictment. The actual charge has not been extended to include conduct that may have occurred after December 1992. The portion of the trial court’s December 5 ruling limiting Count 2 to the time period from 1987 through 1992 is affirmed.

The second part of the ruling quashes “all allegations and particulars” except for 10 specific items on the campaign contribution list from 1987 through | s1992. However, the bill of particulars specifically alleges bribes paid by Roshto within the pertinent time period that are not included in the campaign contribution list. These include allegations of bribes by Roshto in the form of “lobbying fees” to Lehman Williamson and 1992 campaign contributions of $5,000 in cash and a check for $2,500 made in Las Vegas. Because these allegations were within the pertinent time period and consisted of alleged payments from Roshto, the trial court erred in limiting the allegations of the bill of particulars in Count 2 to the ten specific items in the campaign contribution list. For these reasons, we reverse the trial court’s December 5, 2002 ruling as to that portion which quashes any allegations in the bill of particulars involving Roshto from 1987 through 1992.

Count 3

Count 3 of the indictment charges that defendant committed public bribery in 1989 by accepting “directly or indirectly anything of apparent present or prospective value, including, but not limited to a condominium disguised as a sale from Lehman Williamson,” with the intent to influence the award of warehouse food storage contracts. The specific allegations in the state’s final bill of particulars as to Count 3 are that Williamson gave defendant’s daughter a $55,000.00 condominium located in Baton Rouge as a kickback in 1989.

In the December 5 ruling, the trial court ruled that as to Count 3, the charged conduct occurred in 1989 and was not limited to a condominium. The trial court quashed the entire list of the campaign contributions from 1985 through 2000. On December 20, the trial court issued the ruling quashing the language “including but not limited to” in Counts 1, 2, 3, and 18. Thus, the effect of the two rulings is to limit the charge in Count 3 to conduct involving a bribe or bribes in the form of a disguised sale of a condominium from Lehman Williamson in 1989.

The state challenges the trial court’s action of quashing the entire list of Odom Campaign Contributions from 1985 through 2000 as to Count 3. The state again argues that the ruling was a prohibited pre-trial ruling excluding evidence. As in the prior discussion of Count 2 and for the same general reasons, we reject the state’s arguments. The indictment charged the defendant with conduct that occurred during 1989. The bill of particulars does not include any other allegations involving Williamson that occurred in 1989. Since the indictment ^pertains to a disguised sale of a condominium in 1989 and none of the listed campaign contributions occurred in 1989 or involved a condominium, the entire list of campaign contributions was properly quashed as to Count 3. The state’s argument as to the rulings regarding Count 3 lacks merit.

Counts 6, 7, 8, and 11

Count 6 charges defendant with conspiracy to commit felony theft. Counts 7, 8, and 11 charge defendant with felony theft by the misappropriation of. state money by the misuse of the Department airplane and airplane pilots and the use of the services of Department employees, equipment and items, such as pine seedlings, with the intent to permanently deprive the state of the money, the value of which is over $500.00. •

The pertinent part of the bill of particulars related to Count 6 alleges that defendant conspired to give Department employees pay increases, promotions, leave time, and other benefits in exchange for their work on defendant’s church and his son’s house during their regular work hours. The state further alleges that defendant conspired to pay higher salaries to employees who worked oh his campaign. Another part of Count 6 pertains to allegations that defendant conspired to use a Department employee during her regular work hours to perform work on defendant’s personal projects by ordering supplies, handling bills, and receiving bids. The state further alleges that defendant hired the state veterinarian to write college papers for defendant’s son during the employee’s regular working hours. As part of the conspiracy, the state also alleges in subsection IV of Count 6 of the bill of particulars that defendant used Department employees during work hours and Department equipment for his personal projects at his church, hunting camp, farm, and children’s houses.

As to Count 7, the state alleges in the bill of particulars that defendant misappropriated state funds by the personal use of the Department airplane and the airplane pilot, a Department employee. The bill of particulars related to Count 8 alleges defendant’s use of Department employees, equipment and assets for work on his children’s houses. This portion of the bill of particulars references the allegations under Count 6 pertaining to the use of Department employees. The bill of particulars, with respect to Count 11, alleges that defendant used Department |inemployees and equipment to complete site preparation work and plant pine tree seedlings on his personal property. Additional allegations pertain to defendant’s overdue underpayment on Department invoices for the pine seedlings.

As discussed in State v. Odom, 02-2404 (La.App. 1st Cir.06/27/03), 861 So.2d 202, also decided this date, the trial court’s ruling on November 8 granted the motion to quash “to the extent that the allegations in 6, 7, 8, and 11 are based upon [the theft of] employee services.” Specifically, the trial court stated that any reference in Count 7 to the theft of the services of the Department’s airplane pilot was quashed. The motion was also granted as to the allegations of the “use of personnel” in Count 8. In Count 11, the portion alleging the use of employees’ labor was quashed; any allegations of use of equipment were not quashed. The trial court further ordered that if the state intends to assert any other crime in Count 11 “involving equipment,” the state was to amend the bill of particulars 4:30 p.m. on that day; otherwise, the entire count was to be quashed. It does not appear from the record that this amendment was ever made or that the entire count was ever quashed. Thus, at the time of the ruling on December 20, the remaining portions of these counts involved the use of a Department airplane, equipment and other items; not the services of employees.

On December 20, the trial court quashed part IV of the bill of particulars of Count 6. The ruling quashed Counts 7 and 8, including the bill of particulars, in their entirety for the failure to state a crime under Louisiana law. The court further quashed “all portions of [Count 11], and all portions of the final revised [b]ill of particulars, except allegations pertaining to pine seedlings.” Thus, the only charge remaining after December 20 was the allegation in Count 11 pertaining to the misappropriation of the value of the pine seedlings with the intent to permanently deprive.

Herein, the state argues that the court incorrectly ruled that the indictment fails to charge an offense punishable under a Louisiana statute. The state contends that the indictment alleges that defendant stole money from the State of Louisiana with the intent to deprive the state permanently of that money and that the bill of particulars details the way in which defendant stole the money. Addressing defendant’s argument that he is authorized to use Department equipment and the | T1 airplane, the state contends that this argument pertains to the defense on the merits and may not be raised in a motion to quash.

Defendant counters that the bill of particulars only alleges the personal use or misuse of Department equipment and assets, that he is not charged with unauthorized use of a movable, and that there is no allegation that he intended to or actually permanently deprived the Department of any items, a necessary element for the theft offense. We agree.

The Official Revision Comment to La. Code Crim. P. art. 632, Ground (5), states in pertinent part:

[T]here is no practical justification for going to trial upon an indictment in a case where the state has filed a bill of particulars shewing that the offense charged was not committed, that the offense was not committed by the defendant, or that the time limitations have run. This is a situation that was not provided for in the 1928 Louisiana Code of Criminal Procedure. However, the Louisiana Supreme Court, in State v. Masino, 214 La. 744, 38 So.2d 622 (1949), broadly interpreted the motion to quash to afford relief where insufficiency of the charge was brought out in the bill of particulars. Art. 485 covers any case where the bill of particulars shows an affirmative defense to the crime. Under Art. 485, such an indictment is to be quashed unless the defect is cured by another bill of particulars.

As set forth above, in considering a motion to quash the indictment, the trial court considers the facts stated in the bill of particulars as true and determines whether or not, if proved, they constitute the crime charged. State v. Bessar, 213 La. at 310, 34 So.2d at 789.

La. R.S. 14:67 defines the offense of theft, in pertinent part:

Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

Thus, an essential element of the crime of theft is a specific intent to permanently deprive the victim of his property. State v. Albert, 96-1991, p. 9 (La.App. 1st Cir.6/20/97), 697 So.2d 1355, 1362.

| ^Herein, the indictment alleges that defendant had the intent to permanently deprive the state of its money, but also alleges these thefts occurred by the use or misuse of equipment. The bill of particulars elaborates on the allegations, but continues to allege that the crimes were committed by the use of equipment for defendant’s personal benefit. Thus, except for the theft of pine seedlings in Count 11, there are no allegations that indicate that defendant “took” Department equipment or items with the intent to permanently deprive the state of its property. The indictment, when considered with the bill of particulars, discloses a lack of the essential element (intent to permanently deprive) of the crime of theft with which this accused was charged. Therefore, regarding Counts 6, 7, 8, and 11, the trial court’s ruling was correct and the state’s argument lacks merit.

DECREE

For these reasons, the portion of the trial court’s December 5, 2002 ruling that quashes any allegations in the bill of particulars involving Roshto from 1987 through 1992 is reversed; otherwise, the December 5, 2002 ruling is affirmed. Additionally, the December 20, 2002 ruling is affirmed.

DECEMBER 5, 2002 RULING REVERSED IN PART AND AFFIRMED IN PART; DECEMBER 20, 2002 RULING AFFIRMED.

      . The bill of particulars also alleges that defendant filed false federal tax returns, but on November 8, 2002, the trial court granted defendant’s motion to quash any reference to federal tax returns. The state has not appealed that ruling.

      . Although the bill of particulars addressing Count 18 delineates defendant’s failure to report rental income received from Allen Morris Fugler, Jr. during the time period addressed in Count 18 (August 1998 through August ■2002), we note that the indictment does not list "failure to report rental income” in Count 18. Our ruling herein does not preclude the State from seeking to amend Count 18 as to these particular allegations.

      . The court also rendered rulings pertaining to Counts 3, 6, 7, 8, and 11, which are addressed in this appeal.