BROWN, CHIEF JUDGE.
In this matter to establish filiation, Nakita Moore Tellis, the alleged illegitimate child of decedent, Milton Younger, appeals the judgment which sustained the exceptions of prescription and peremption. For the reasons set forth below, we reverse and remand.
Milton Younger died intestate in Ruston, Louisiana, on February 5, 2015. He was survived by two children born of a prior marriage, Mitchell Younger and Tewana Younger, and an alleged daughter born out of wedlock, Nakita Moore Tellis. On March 31, 2015, Tellis judicially opened the succession of decedent, Milton Younger, by filing a petition for filiation and a petition to be appointed as administratrix of the estate. In her petition for filiation, Tellis stated that she was born on May 19, 1979. The trial court denied Tellis's request to be appointed administratrix pending resolution of the filiation determination.
Mitchell and Tewana Younger filed their answer, in which they submitted that they were the sole heirs of the decedent, Milton Younger, and that the decedent was not the father of Tellis. Additionally, the Younger siblings filed exceptions of prescription, peremption, and no right of action. They argued that at the time of Tellis's nineteenth birthday, La. C.C. art. 209 provided that any claim for filiation must be filed within one year of the date of death of the alleged parent or by the child's nineteenth birthday, whichever comes first. The Youngers argued that because Tellis did not file a claim for filiation by her nineteenth birthday, which was May 19, 1998, Louisiana's peremptive period at the time barred any such claims by her after that date. They further alleged that because Tellis's claims are time-barred, she has no right of action to appear as an heir in the proceedings.
The trial court rendered judgment in favor of the Youngers, granting their exceptions of prescription and peremption and dismissing Tellis's petition for filiation.
Tellis has appealed from this adverse judgment.
Formerly, La. C.C. art. 209 provided, in pertinent part, as follows:
Article 209 was subsequently replaced by La. C.C. art. 197 by Acts 2005, No. 192, § 1. Article 197, which became effective on June 29, 2005, provides:
It is undisputed that Tellis, who turned 19 years old prior to the enactment of La. C.C. art. 197, did not file a claim for filiation within 19 years of her birth. Her alleged father's death in 2015 occurred after the effective date of La. C.C. art. 197. The issue thus before this Court is whether the trial court correctly concluded that Tellis's claim for filiation, filed within one year of her alleged father's death, is untimely. For the reasons set forth below, we find that the trial court erred.
Former La. C.C. art. 209 required a child not yet filiated to prove paternity within 19 years of birth or within one year of death of the alleged father, whichever came first. Succession of Grice, 462 So.2d 131 (La.1985), appeal dismissed, 473 U.S. 901, 105 S.Ct. 3517, 87 L.Ed.2d 646 (1985). Under former article 209, the period in which a child not yet filiated had to prove filiation was peremptive. Id. The legislature repealed former article 209 and enacted article 197, effective June 29, 2005, ending the requirement that a child not yet filiated had to prove filiation within 19 years of birth. The unambiguous language of article 197 provides that a child not yet filiated has one year from death of the alleged father to prove paternity. In re Succession of Harrison, 48,432 (La.App. 2 Cir. 11/8/13), 129 So.3d 681, writ denied, 14-0273 (La. 4/4/14), 135 So.3d 1185.
In the case at bar, when Tellis failed to file a claim for filiation within 19 years of her birth, article 197 was not yet in effect. Thus, in considering the applicability of article 197 to the instant case, we find it helpful to examine why the legislature repealed former article 209 and enacted article 197 in its place.
The comments under article 197 provide:
In Succession of Harrison, supra, the decedent died intestate on January 1, 2011. At that time, Harrison's alleged child, Henry Himes, was 69 years old, having been born in 1941. In April 2011, Himes filed a petition for possession. The trial court signed an ex parte judgment of possession,
Succession of Harrison, supra at 685.
The Youngers claim that they acquired a vested right, the right to plead peremption, because Tellis failed to file a claim for filiation within 19 years of her birth, which was when former article 209 was still in effect. According to the Youngers, La. C.C. art. 197 only applies to existing claims, not one like Tellis's claim, which has already perempted under former article 209.
Once a party acquires the right to plead prescription, a statute cannot apply retroactively to revive a prescribed cause of action, absent clear language of the legislature as to the retroactive application of the statute. Chance v. American Honda Motor Co., Inc., 93-2582 (La. 04/11/94), 635 So.2d 177.
Even though former article 209 has been repealed, some of its effects of former article 209 still remain in La. C.C. art. 197. Both articles provide that a child not yet filiated has two different options for filing a claim for filiation: against a living parent or against a dead parent. Moreover, Comment (d) to article 197 notes that the burden to prove filiation is also the same in both articles, with a higher burden of proof, "by clear and convincing evidence," if a child not yet filiated files a claim for filiation against a dead parent. Comment (d) notes that the policy requiring a higher burden of proof against a dead parent is as follows:
In the instant case, Tellis judicially opened her alleged father's succession by
Art. 870 provides as follows:
Subsection (B) of art. 870 was amended by Acts 2001, No. 560, § 1, eff. June 22, 2001. This provision, clearly providing that succession rights are governed by the law in effect on the date of the decedent's death, was in effect when the legislature, in 2005, repealed former article 209 and enacted article 197. The legislature is presumed to know of all existing laws, which included art. 870, when it enacted article 197. See State v. Johnson, 03-2993 (La. 10/19/04), 884 So.2d 568; Theriot v. Midland Risk Ins. Co., 95-2895 (La. 5/20/97), 694 So.2d 184.
Concerning the applicability and scope of article 870(B), the Editor's note recognizes that the legislature specifically declared in Acts 2001, No. 560, § 3 that:
Clearly, the legislature did not repeal former article 209 and enact article 197 in its place in a vacuum, isolated and meant to be interpreted and applied independently from the rest of the Civil Code. Instead, the legislature enacted article 197 in light of the laws governing successions; this conclusion is further supported by the legislature's language choice of "for the particular purpose of succession only," contained in the second clause of article 197. The effect of this language is that the second clause of article 197, which provides that a child not yet filiated has one year from death of the decedent to prove paternity, is triggered when a claim for filiation is filed in the context of a succession.
In this case, Tellis's alleged father died in 2015, and Tellis filed a petition for filiation within one year of his death. At the time of the decedent's death, article 209 had been repealed and article 197 was in effect. The one-year peremptive period contained in the second clause of La. C.C. art. 197 only concerns only the laws of succession. As set forth in La. C.C. art. 870, intestate succession rights are governed by the law in effect at the time of decedent's death. Accordingly, we find that since Tellis filed her claim for filiation within one year of her alleged father's death, her claim is not perempted. See also
Additionally, we are mindful that the Youngers have cited jurisprudence from other circuits that support their argument.
Considering the aforementioned, because the Louisiana Legislature repealed former article 209 and enacted La. C.C. art. 197 based on equity and policy considerations, the second clause of article 197 allows a child not yet filiated who was born under the guise of the former repealed law to establish a claim for filiation within one year of the alleged father's death.
The ruling of the trial court is reversed and remanded. Costs of this appeal are assessed against Mitchell Younger and Tewana Younger.
APPLICATION FOR REHEARING
Before BROWN, GARRETT, and STONE, JJ.
Rehearing denied.
In Succession of Herndon, supra, the decedent died well before the enactment of article 197 and plaintiffs did not file their petition until more than 30 years after decedent's death. In Thomas, supra, the child filed a petition to establish filiation in 2011 against his alleged father who was still living. Neither case is dispositive of the issue presented herein.
