Opinion
No. 96-C-1651
October 25, 1996
IN RE: Laporte, Johnny Jr.; — Defendant(s); Applying for Writ of Certiorari and/or Review; Parish of West Baton Rouge 18th Judicial District Court Div. "C" Number 19,532; to the Court of Appeal, First Circuit, Number CA95 0867
Granted in part. Court of appeal judgment set aside, remanded to the court of appeal. See per curiam.
PFC
WFM
JCW
HTL
CDK
JPV
EJB
JOHNSON, J. not on panel.
The application is granted in part.
Plaintiff, the mother of the child, filed a paternity action against defendant, the alleged father. The action was eventually compromised and dismissed with prejudice.
Plaintiff subsequently filed this action to annul the judgment of dismissal, asserting among other grounds that compromise of a paternity action is a waiver of future child support and against public policy. Defendant's exception of prescription was maintained by the trial court.
The court of appeal reversed, holding that if the judgment of dismissal was based on an absolutely null compromise agreement, then the judgment was also an absolute nullity which does not prescribe. 95-0867 (La.App. 1 Cir. 4/4/96); ___ So.2d ___. However, the court of appeal accepted the compromise as an absolute nullity based on plaintiff's "allegation [which], for purposes of the resolution of the prescription issue, must be accepted as true." Id. at p. 4.
Whether or not the compromise of a paternity action is an absolute nullity is a question of law which cannot be decided on mere assertions in a pleading. The court of appeal assumed the answer to that question of law in deciding that the judgment was null if the compromise was null. This assumption begged the crucial question of whether a compromise by the parties to a paternity action is against public policy.
Accordingly, the judgment of the court of appeal is set aside, and the case is remanded to the court of appeal to decide the determinative question of law — whether it is against public policy for a mother and an alleged father to compromise a paternity action against the alleged father of the child.
JOHNSON, J., not on panel.