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PATERNITY
Commentaries - by Pierre MURAT, Professor, Faculty of
Law, Grenoble II, October 3, 2005 ( unofficial translation
)
LEGITIMATE PATERNITY
198 On the restitution of sums paid for child support:
be warned of the results of contesting paternity!
The declarative effect appertaining to the judgment accepting
a contestation of legitimate paternity has retroactively
obviated the obligation for child support that was the burden
of the first husband of the mother, inasmuch as the payments
he made to provide for the needs of the child were found
to be without foundation. The mother, who had always benefited
from the contributions made by her first husband, and the
second husband, father of the child, who benefited from
the contributions made on account of the marriage, must
be held to be repaid.
CA Caen, 1st chapter, section 3, 8 Jan. 2004: Juris-Data
No. 2004-240963.
Background
Deemed admissible for hearing by appellate decision of 21
November 2002, the action in contestation of paternity undertaken
by the spouses L, enjoined with a request for legitimization
by the child, appeared equally well-founded in light of
conclusions drawn by the biological expert report of Doctor
R who showed that the probability of paternity of Mr. L
vis--vis Astrid G was 99.85%.
It should be noted in this respect, that Mr. G did not submit
to comparative examination; that Mr. L assumed his paternity
of Astrid on the basis of conclusions properly noted and
filed with the trial court and court of appeal; and that
the judicial expertise in substance confirmed tests undertaken
by a London laboratory in 1998.
From this, it must be adjudged that Mr. G was not the father
of Astrid but that the latter was the daughter of Mr. L,
and that the legitimization of the child by the marriage
of her parents on 25 May 1999 must be recognized with all
legal consequences.
The change in the childs surname, which must conform to
her true parentage, has been imposed as a consequence of
the decision denying the paternity of Mr. G and finding
it to be that of Mr. L.
Mr. G, who raised Astrid for many years, is to be granted
rights of visitation and lodgment as deemed to conform to
the interests of the child in maintaining ties to the person
she considered to be her father throughout her childhood
and who would stand to benefit from a like right accorded
by the family court judge of the Trial Court of Cherbourg
(according to the ruling of 30 September 2002).
The hearing of the minor, duly represented in the trial
by an ad hoc administrator, does not rule out, in fact far
to the contrary, the maintenance of such relations, is neither
necessary nor opportune given that Astrid is only 11 years
old, where the situation with which she is confronted is
already excessively disturbing and that the matters she
was able to hold before witnesses must be considered with
the greatest circumspection bearing in mind the psychological
pressures of which it is manifest she is the object.
To note the evolution of Astrids legal situation, the right
of visitation accorded to Mr. G is henceforth to be reduced
with reference to what it is currently and in line with
the claims made by him before the court.
The request (a new cause of appeal) by Mr. G to recuperate
sums improperly spent for the raising of Astrid over ten
years is appropriate on application of Articles 564 et seq.
of the New Code of Civil Procedure by which it consists
of submitting to the Court a question born of the raising
of a fact (the non-paternity, biologically established,
of interests relating to the child) and that which accompanies
it, the consequence or the complement of the claim looking
to reject the action in contestation of paternity directed
against him.
The declarative effect attaching to the judgment accepting
a contestation of legitimate paternity deprives the child
from its birth of being a legitimate child and, by consequence,
retroactively obviates the obligation of child support that
was borne by the husband of the mother inasmuch as the payments
the latter made to provide for the needs of the child are
found to be deprived of cause.
Mr. G, of whom it is not shown that he would voluntarily
quit his natural obligations (knowing he is not the father
of Astrid), is entitled to exercise his right of action
to recover unjust enrichment under Article 1235 of the Civil
Code.
This action may be undertaken either against the person
that received the payment or against the person for whose
account it was received.
Mrs. B (spouse L), the mother of Astrid, who always benefited
from the contributions of Mr. G in the support and education
of the child, and Mr. L, who is the legitimate father of
the child on account of the marriage celebrated on 25 May
1999 (Article 332-1 of the Civil Code) who equally and necessarily
benefited, from that date, from the contributions made,
must be held to make restitution upon conditions that will
be elaborated upon later.
In this regard, the following should be considered:
- That between the birth of Astrid (2 September 1992)
and the non-conciliation ruling (2 June 1997), more
than four years have passed during which the appellant
(whose means of contributing were inferior to those
of his spouse) has contributed as normal in the cost
of support for and education of the young child;
- That the above-cited non-conciliation ruling determined
the residence of Astrid to be the home of Mr. G and
gave to the discretion of Mrs. B alimony payments of
1,700 Francs per month (confirmed on appeal on 28 May
1998 and upheld by the divorce judgment of 8 December
1998);
- That, by the ruling of 30 September 2002, the family
court judge of the Trial Court of Cherbourg determined
the residence of Astrid to be that of her mother and
allocated to the discretion of Mr. G alimony payments
of 122 Euros per month;
- That Mr. G presents a contract request on the basis
of 2,000 Francs or 304.30 Euros per month over ten years.
Taking these elements into account, the Court estimates
the total sum of which Mrs. B is the debtor to be fixed
at 10,000 Euros and the total amount that is jointly owed
by the spouses L to be estimated at 5,000 Euros.
The request for damages-interest, new as a cause of appeal,
from Mr. G is admissible for the same reasons as those based
on the claim for recovery of the undue amount.
The moral and psychological prejudice claimed by Mr. G,
who sees himself as deprived of his paternity of Astrid,
by virtue of which he developed a fabric of special ties
with the child over many years, is very important.
The fault committed by Mrs. L (who maintained an extra-marital
affair by which Astrid was born and did not reveal this
to Mr. G), no less than the doubts she maintained with respect
to the true parentage of the child, before 1990 and that
committed by Mr. L (who belatedly recognized Astrid as his
child affirming it in his writ of 9 January 1998 before
the Trial Court of Cherbourg, saw his child regularly from
her birth), are characterized and generalized causes of
this prejudice.
The spouses L are henceforth found liable in solidum
to payment of the sum of 8,000 Euros under title of damages-interest.
NOTE: On a first reading the appellate decision
does no more than illustrate the well-known consequences
of the contestation of paternity: that for the man who raised
the child to continue maintaining his ties to the latter
by means of a grant under law of visitation (V.C. civ.,
art. 311-3); thatwhich in the end is somewhat contradictory
to the mission of the preceding prerogativeto obtaining
reimbursement of monies committed to the education of the
child.
The decisions are sometimes obscure or confused on the exact
basis of reimbursement: as the authors write, the Supreme
Court qualifies this action of in rem verso although
it is exercised against the new father, it seems to concern
a reimbursement of undue gains although it is exercised
against the mother; the tribunals seem hardly to pay attention
to the qualification (Ph. Malaurie et H. Pulchiron, Droit
Civil, La Famille: Defrnois, 2004, No. 959). From this
angle, the appellate decision of the Court of Caen does
not avoid criticism and finally makes clear the awkwardness
that continues to surround the qualification.
While the appellate decision recalls that: the declarative
effect attaching to the judgment accepting a contestation
of legitimate paternity [] retroactively obviates the obligation
for support that was borne by the husband of the mother
inasmuch as the payments that he made to provide for the
needs of the child are found to be deprived of cause, it
reverses almost word for word the expectations of the Supreme
Court that consecrated the undue enrichment as founded in
the action undertaken against the new father (Cass. 1
Feb 1984 ; D. 1984, p. 388, note J. Massip; D. 1984, inf.
Rap. p. 315, obs. D. Huet-Weiller; RTD civ. 1984, p. 700,
obs. J. Rubellin-Devichi). But it is as much in the
lines following that give to the cause of action exercised
the foundation of the recovery of undue gains! Without doubt
the Court was annoyed by the fact that the action was aimed
at the time against the mother and against the second husband,
the father of the child. Maybe the action should have been
first an undertaking against the mother on the ground of
recovery of illicit gains, and subsidiarily against the
father, in the case of unresolvability, on the grounds of
undue enrichment (in this vein, P. Guiho, J.-Cl. Droit
de lenfant, Fasc. 260 or Civil Code, Art. 312 to 318-2,
Fasc. 20, No. 105 or Notarial Rpertoire, V. Filiation, Fasc.
22). The solution is however quite complex and one author
defended the reverse point of view with convincing arguments:
the obligation of maintenance that weighs on the father
is equal, but distinct from that which weighs on the mother;
while she is found liable, as the accipiens of bad faith,
to payment of the undue gains, one supposes that the debt
was paid between these hands and can also claim that the
presumed father directly accomplished the obligation that
was incumbent upon the true father, the mother in the two
cases having provided for her part for the needs of the
child (J. Rubellin-Devichi, obs. prc., p. 702).
Besides the problem of the foundation of the cause of action,
the question of the where the obligations start for the
new father, upon which he would condition the extent of
his liability. After having remarked that the second husband
was not the legitimate father of the child except on account
of the marriage and that he had benefited from that date
from the contributions of the former husband in the maintenance
of the child, the decision distinguishing between the situation
of the mother and that of the new father in finding the
first only liable for a part of the sums and the two spouses
together for another part. Is it not however necessary to
overlook the declarative effect of establishing the parentage
of which the appellate decision of the Supreme Court of
1984 nonetheless took particular note of the critical role
it played? We refer back to one of the commentators of that
decision in making the following valuable remarks: The difficulty
that the appeal has used in the payments made by the first
husband was under the title of his contribution to the support
of that child that at that time he believed to be his own;
there was therefore a cause for [unjust] enrichment. But
in reality, under the action for legitimization which takes
effect from the date of the marriage (C. civ. 332-1)
or to that of the judgment pronouncing legitimization by
authority of justice (C. civ. Art. 333-4), the judgments
confirming the paternity or absence of paternity (as in
the case of disallowance or annulment of recognition) are
declarative of a pre-existing state, as much as voluntary
recognitions (J. Rubellin-Devichi, obs. prc. p. 701).
In the instant case judged by the Caen Court of Appeal,
it appears that the paternity action might be founded on
Article 318 of the Civil Code (the appellate decision raises
a contest of legitimate paternity with the ends of legitimization);
the question is ultimately then to understand if the subsequent
decision to this action benefited in some way from a double-retroactivity
that, on the one hand, vanquished the first paternity for,
on the other hand, to substitute it ab initio with
the paternity of the second husband, or if, as the legitimization
under Article 318 may reconcile (V. C. civ., art.
318-1 and 318-2), the paternity of the second husband does
not take effect until the date of the marriage. The Court
was leaning toward the legitimization process (C. civ.,
art. 332-1) and did not fully consider the obligations of
the second father except on account of the marriage. It
is the reverse resolution that should prevail. This is first
because the spirit of Article 318 is to indissolubly link
the contestation of paternity of the first husband to the
recognition of paternity by the second in order that the
child might not suffer disruption in the links to paternity;
next because the Supreme Court ruled on the underlying appellate
decision given in 1984 in finding the second husband liable
following a modification of parenthood to the child justly
obtained under Article 318 As one author wrote regarding
the consequences of the action founded on Article 318: This
is a declarative judgment of paternity, as it confirms the
paternity with regard to the second husband, and the absence
of paternity with regard to the first. But, under the general
rule, judgments that confirm paternity or its absence are
considered to be retroactive; their effect relates back
to the birth of the child (P. Guiho, art. Prc. No. 104).
In the present case, the second husband would therefore
have to be recognized as owing an obligation of support
to the child from the time of its birth and not since the
time of his marriage to the mother of the child, as the
Court of Caen would have it.
Key-Words: Legitimate paternity Contestation of paternity
Parental obligations of support Restitution of unjust enrichment.
Juris-Classeur; Droit de lenfant, Pasc. 260 or Civil
Code, Art. 312 to 318-2, fasc. 20, No. 105 or Notarial Rpertoire,
V. Filiation, fasc. 22.
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