Tennessee Divorce Attorney Blog

The case of In Re: Ayden K.M., No. E2010-01884- COA-R9-JV (Tenn. Ct. App. April 17, 2012), shows Tennessee custody and paternity attorneys that enforcement of foreign judgments may be difficult to contest.

Child was born to Petitioner in Texas in 2006, where Respondent signed a Acknowledgment of Paternity ("AOP"). Shortly after the birth, Child moved with Respondent to Tennessee, where they remained. In 2007, Petitioner filed in Tennessee to contest paternity and to obtain custody. The Juvenile Court ruled Petitioner did not have standing to dispute paternity due to the AOP having been signed under oath. Petitioner then filed in Texas where the AOP originated, and the Texas Court set aside the AOP and declared that the Respondent was not the Father. Respondent filed a writ of mandamus with the Court of Appeals in Texas arguing lack of subject matter jurisdiction. This failed and the Texas Court ruled jurisdiction was found in Texas.
Petitioner then attempted to enforce the Texas judgment declaring Respondent not to be the Father in Juvenile Court in Tennessee, but that court declined to give the Texas judgment full faith and credit because Texas lacked personal jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJEA) needed to rule on Respondent's paternity. Petitioner was allowed to file an interlocutory appeal.

Normally, foreign judgments are entitled to enforcement in Tennessee courts. However, T.C.A. §26-6-104(c) says that foreign judgments may be vacated or reopened under Tenn. R. Civ. P. 60.02. Under that rule, judgments may be set aside if they are void, which can be caused by a lack of personal or subject matter jurisdiction or when the judgment is contrary to Tennessee's public policy.
Here, Respondent argues that Texas lacked jurisdiction over Petitioner's AOP challenge and that enforcing the Texas judgment would violate Tennessee's public policy favoring children having two parents. Petitioner argues the Tennessee Juvenile Court erred in declining to enforce the Texas judgment revoking Respondent's paternity. Respondent carries the burden here, as does any party seeking to stop the enforcement of a foreign judgment.

The Tennessee Appellate Court here agreed with the Texas Appellate Court, who explained that the UCCJEA is not applicable here (which would have given Tennessee jurisdiction). Instead, the action was brought solely on the issue of paternity, which falls under the Uniform Parentage Act and Texas Family Code Ch. 160. This is because the UCCJEA applies to paternity actions only when they are part of a proceeding concerning custody or visitation. Here, the Texas action by Petitioner only requested to set aside the paternity and did not therefore address custody or visitation. Further, when Tennessee entered a temporary order, it specifically noted that Tennessee refused to exercise jurisdiction over the paternity part of the matter, deferring that to Texas, and stating Tennessee would only hear the custody issues. Both Texas courts and Tennessee courts agreed that the AOP could only be set aside by a Texas Court. Therefore, that set aside could not be ignored by the Tennessee court and the Tennessee Juvenile Court Order declining enforcement of that set aside was reversed.

A recent Tennessee Court of Appeals case entitled Danelz v. Gayden, 2011 WL 2567742 (Tenn. Ct. App. June 29, 2011) addresses the issue of paternity in Tennessee in a rare context.

The Appellant filed a Petition to Establish Parentage in Juvenile Court after his 18th birthday alleging that Dr. Gayden (hereinafter "Doctor"), not married to his Mother at his birth, was his biological Father and sought retroactive child support. At the time of his birth, his Mother was married to her now Ex-Husband, not the Doctor. The Juvenile Court granted the Doctor's motions to strike affidavits filed by Appellant (stating his date of birth) and of his Mother (stating the timing of her sexual relationship with the Doctor), and denied Appellant's motion for paternity testing and for discovery. Appellant appealed.

The Appeal Court first decided that the Appellant was not stopped from bringing the petition because as a minor, he was not a party to his Mother's divorce proceeding. The Court also held that the Mother was not a party to the new petition and therefore her affidavit could be considered. At that point, the case was sent back to Juvenile Court for genetic testing to be done.

The testing showed the Doctor was indeed Appellant's Father. The Juvenile Court then found the Mother's Ex-Husband to be an indispensible party under T.R.C.P. 19.01, ruled the Doctor was Appellant's biological Father, and held that no cause of action existed that would allow an adult child to seek retroactive child support where no existing child support order had been in place and therefore dismissed the action.

The Appellate Court noted that although the Juvenile Court declared Mother's Ex-Husband to be an indispensible party, he was erroneously never made a party prior to the Juvenile Court's final ruling. The Court noted that parentage determination is a two-step process: determine the biological father under T.C.A. §§36-2-301 and 322 and then determine whether that person is the legal father under T.C.A. §§36-1-101 and 142.

Here, the Doctor was the biological Father, passing the first hurdle. Regarding the second, a "legal father" is defined as the man who is married to the biological Mother when the child is born or within 300 days after the marriage was terminated, or if separation was entered by a court; any man who was adjudicated to be the legal father by a court; or a man who has signed an unrevoked and sworn, voluntary acknowledgment of paternity. A legal parent is not a man who is a biological parent without an adjudication or acknowledgment of paternity.

Here, the Juvenile Court made no finding as to whether the Doctor was the legal father. The Appellate Court held that the Juvenile Court must first decide who is the legal father, Mother's Ex-Husband or the Doctor, prior to deciding whether any retroactive child support was owed. Further, because the Juvenile Court entered an order that the Ex-Husband was an indispensable party, Rule 19 prevents the court form making a final order in his absence unless the court had made a separate finding that he was not indispensable after all.

Accordingly, the judgment of the Juvenile Court was vacated and upon remand, the court is to determine whether the Ex-Husband can be made a party or if the action should be dismissed. If he is made a party, the court is then to determine which man is the legal father. If the legal father is determined to be the Doctor, only then can the court turn to whether the action for retroactive child support is a valid one.