Recently in Paternity Category

Relief from Default Judgment Difficult, Not Impossible

In the case of Butler v. Vinsant, No. M2012-01553-COA-R3-JV (Tenn. Ct. App. April 15, 2013), Knoxville divorce lawyers learn that obtaining relief from a default judgment requires proof of mistake, inadvertence, surprise or excusable neglect.

Facts: In 2010, Mother filed a Petition to Set Child Support against Mr. Vinsant, the alleged biological father in Juvenile Court. Father filed a Response admitting paternity but denying that he owed support due to the fact that the children resided with him the majority of the time. Simultaneously but under a different docket number, Father also filed a Petition to Legitimate and for Custody, requesting that he be named the primary parent. The two actions were consolidated and Mother was allowed to amend her petition to include custody. Mother then filed an Amended Petition asking to be the primary parent. Meanwhile, Father's attorney withdrew. Father never filed an Answer to Mother's Amended Petition, so Mother filed a Motion for Default Judgment and set a hearing. Father failed to appear at that hearing. The trial court found the following: Mother was entitled to a default based upon Father' s failure to answer or appear; that Father's paternity was established; that Mother was primary residential parent with Father having every-other-weekend visitation; that child support was set and Mother was awarded an arrearage.

Father then filed a Rule 60.02 Motion to Vacate Default Judgment. In said Motion, Father provided affidavits stating that his failure to answer or appear was excusable because his prior attorney failed to forward his file to the new counsel. The Rule 60.02 motion was denied by the trial court and Father appealed.

Analysis: Rule 60.02 of the Tennessee Rules of Civil Procedure states that a court may relieve a party from a final judgment or order based upon mistake, inadvertence, surprise or excusable neglect. A trial court's ruling shall only be overturned upon a finding of abuse of discretion (meaning application of an incorrect legal standard, an illogical conclusion, a clearly erroneous assessment of the evidence or reasoning causing injustice to the complaining party).

Further, three factors are used to determine if the default should be vacated: whether the default was willful; whether there was a meritorious defense; and whether the other party would be prejudiced.

Here, the Appeals Court found that Father only had a meritorious defense regarding the custody issue. The evidence in the record submitted by Father - an affidavit and his original petition (which is not evidence by itself) - only contains allegations regarding child custody factors and failed to include facts about his income, child support obligation or arrearage. Further, his Rule 60 Motion fails to dispute or point out any error in the trial court's calculation of child support or the arrearage. However, his Petition avers that he has a loving relationship with the child, and had been the primary caretaker.

Next, the Appeals Court looked to see whether Father's failure to appear and answer was willful. "Willful" means intentional and voluntary rather than accidental and not due to coercion. Father argues he did not have actual notice of the hearing. Therefore, the question becomes whether Father's inaction in promptly obtaining a new attorney and failing to stay updated on the proceedings was willful, less than willful but not excusable, or excusable. Even though Father's first attorney failed to keep Father informed, Father failed to promptly obtain new counsel even after being advised to do so; Father further failed to inform opposing counsel or the court of his lack of representation for several months, until the filing of the Rule 60 Motion. The record also showed that Father ignored his prior attorney's repeated advice to quickly obtain substitute counsel. Therefore, although these actions were not calculated to avoid the court proceedings, the Appellate Court found his actions were not inexcusable, meaning Father is not entitled to any relief under Rule 60.02.

Legal Father May Terminate Child Support Obligation Via Negative DNA Results

April 24, 2013 by The McKellar Law Firm, PLLC

In the case Price v. Price, No. W2012-01501-COA-R3-CV, 2013 WL 1701814 (Tenn. Ct. App., Apr. 19, 2013) Tennessee family law attorneys learn that that a "legal father" (by virtue of being named on the birth of a child during a marriage), who are later proven not to be the father's biological child, has a right to terminate a child support obligation for that child.

The facts: Husband and Wife married in 1989. From 1992 to 2005 Husband was active duty in the Navy and was stationed away from his family with occasional visits home. From 1993 to 2003, while Husband was stationed away from Wife, she had a male roommate live in the marital home with her. During this period, Wife gave birth to two (2) children. In 2001 Husband had a DNA test performed on one of the children, who was shown not to be his biological child. Husband then filed a Complaint for Divorce, but did not follow through on it and remained married. In 2011, Husband again filed a Complaint for Divorce asserting that he was not the biological father of either child born of the marriage. Wife admitted that Husband was not the father, but argued that Husband executed a "voluntary acknowledgment of paternity" for each child shortly after their births. The court requested DNA testing which confirmed that Husband was not the father of either child. Wife's defense offered proof that Husband held the children out to be his own, listed the children as dependents in his military personnel file, and lived in the marital home with Wife and Children after being relieved of active duty status from the Navy in 2005. The trial court was not persuaded by Wife's arguments in relation to the DNA test results; therefore, it granted the divorce and stipulated that no children were born of the marriage. Wife appealed.

Analysis and Conclusions: On appeal, Wife asserted that "absent an adjudicative hearing naming another man as the biological father of the children, [Husband] is the children's legal father because he was married to the biological mother of the children, who were born during the marriage." Citing In re T.K.Y., 205 S.W.3d 343 (Tenn. 2006). Wife cited Tenn. Code Ann. § 36-1-102(28)(B) for the definition of "legal parent" to include "a man who is or has been married to the biological mother of the child if the child was born during the marriage," as well as Husband's "voluntary acknowledgment of paternity" ("VAP") for each child as reasons why he should be required to pay child support for the children.

The Court of Appeals found that here, no VAP was in the record provided by Wife. The only evidence that Wife provided included birth certificates for the children listing Husband as the father. Because there was no VAP, the Wife's argument was found meritless.

On the argument Wife raised using In re T.K.Y., the Court pointed out that the case was regarding two men seeking to establish parental rights to a child in regards to a termination of parental rights proceeding, and, therefore, was the opposite of the case at bar. The Supreme Court found this argument ineffective.

In regards to the definition of "legal parent" in Temm. Code Ann. §36-1-102(28)(B), the Appeals Court found that definition to be pertinent to adoptions and termination of parental rights proceedings only and therefore inappropriate to apply to the current case.

In its final opinion on the matter, the Court of Appeals stated that Wife's argument was "swimming against the tide." It further opined that Tennessee child support laws seek to obtain child support from biological fathers and seeks to relieve putative fathers from the burden of supporting children that are not biologically theirs. The Court affirmed the trial court's decision that Husband had no legal obligation to support the children in the matter since they were proven to not biologically be his.

Paternity Judgment from Texas Upheld in Tennessee

April 19, 2012 by The McKellar Law Firm, PLLC

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.

Tennessee Paternity Action Raises Rare Issues

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.