Grice v. Detwiler , 227 Ga. App. 280 ( 1997 )

Smith, Judge.

In 1996, Orie Jon Grice brought a petition to establish his paternity and legitimate Shirley Mae Detwiler’s son, who is now 14 years old. See OCGA §§ 19-7-22; 19-7-43 (a) (5). The trial court, after a bench trial, denied Grice’s petition. We granted a discretionary appeal to review the trial court’s decision. Because this case is controlled by our decision in Ghrist v. Fricks, 219 Ga. App. 415 (465 SE2d 501) (1995), we affirm.

In 1981 and 1982, Detwiler lived with Richard Ogle and had sexual relations with him. She ended that relationship on April 21, 1982, married Grice on June 11, 1982, and moved to Texas with him. Seventeen days later, Detwiler separated from Grice; she returned to Georgia and filed for divorce. Grice learned during the brief marriage that Detwiler was already pregnant; the child was born on January 18, 1983, seven months after the brief marriage and nine months after Detwiler’s relationship with Ogle ended. Although Grice expressed his willingness to treat the child as his own and continue the marriage, Detwiler insisted on a divorce. She amended her complaint to recite .that it was physically impossible for Grice to be the child’s father and that he would have no parental rights to the child.

While Detwiler and her mother told Grice that the child was not his, Grice testified that at the time of the divorce he hired a local attorney specifically to investigate the issue of paternity because he “still wasn’t sure” despite the assurances of Detwiler and her mother. He testified that he relied on a letter from that attorney stating that Grice’s, the mother’s, and the child’s blood groups were dispositive of nonpaternity without further testing: “[T]hat’s what I thought that [the attorney] had done because of that letter.” According to Grice, he relied on “the attorney and the paper work and then what Shirley and her mom had told me.”¹ Grice filed no defense to the divorce, and the January 3, 1983 decree is silent on the issue of children.

In June 1983, Detwiler married Ogle and at approximately the same time successfully petitioned to have the child’s last name changed to Ogle. Detwiler assured Ogle he was the child’s biological father, and for the next 12 years Ogle and the child believed this to be true. Detwiler and Ogle lived as husband and wife for approximately two years, and a second child was born to them during that time.

Detwiler and Ogle later divorced. The 1989 divorce decree refers to both children by the last name of Ogle and as “issue of this marriage.” Detwiler was given custody of the children, and Ogle was required to make child support payments. In 1995, after Detwiler became addicted to crack and was imprisoned on cocaine charges, custody of the children was given to Ogle; he, Detwiler, and Detwiler’s mother then became involved in an extended and acrimonious custody battle. In January 1996, this culminated in a decision by Ogle and his present wife not to allow the children to visit Detwiler’s mother.

Later in the spring of 1996, Detwiler’s mother, asserting that she was concerned for the child’s welfare, contacted Grice and told him that the child was his biological son. In July, Grice filed his petition to legitimate the child and for custody.

Detwiler did not testify at the hearing in this action, but Detwiler’s mother appeared on Grice’s behalf and gave extensive testimony asserting that Ogle was not a suitable father for the child. She attributed to Ogle the child’s misbehavior, adjudication of delinquency, and placement in a “boot camp.” See OCGA § 42-8-35.1. She also testified that she and Detwiler lied to Grice in 1982 because they believed he would seek custody and take the child to Mexico, although she stated no factual basis for this belief and Grice has no apparent connection with that country. Grice elicited testimony that Ogle has been incarcerated on marijuana charges and that he has struck his present wife.

Ogle, relying on Ghrist, supra, moved to dismiss Grice’s petition on the ground that the 1983 divorce decree constituted res judicata or collateral estoppel on the issue of Grice’s paternity. The trial court orally denied Ogle’s motion on the ground that “this Ghrist case . . . is a summary judgment case, so I don’t think I can dismiss without hearing the evidence on all these matters.” After hearing the evidence, the trial court observed, “I don’t believe in dismissals because I think they are usually dilatory, but I’m going to rule on the merits and enter judgment for defendant Ogle and deny the petition for paternity and legitimation.” The court entered an order denying the petition on the basis that it was not in the child’s best interests.

Ogle contends that consideration of the child’s best interests is unnecessary because the issue of paternity was raised in Grice’s 1983 divorce action, Grice had the opportunity to establish paternity, and he abandoned that opportunity by failing to answer the petition. We agree with Ogle that Grice is barred from seeking relief.

This case is controlled by Ghrist, supra, which involved a strikingly similar and belated allegation of paternity. As in Ghrist, a divorce decree exists stating clearly that this child was the issue of that marriage. Here, as there, the ex-wife sought to attribute paternity to another man after raising the child as offspring of this marriage for an extended period of time: three years in Ghrist, but thirteen years in this instance. As in Ghrist, the putative father from outside the marriage seeks to establish paternity.

The only distinction here is that the putative father from outside this marriage was briefly married to the mother rather than engaged in an extramarital liaison. We therefore have not one but two divorce decrees to consider, one now eight years old and the other now fourteen years old. Relying on the principles established in Ghrist, we conclude that these final, unappealed, and mutually consistent judgments must be left undisturbed.

Like the putative father in Ghrist, Grice was fully aware of a question regarding his paternity but failed “to take any steps to conclusively resolve the issue.” Ghrist, supra at 417. Grice asserts that Detwiler and her mother defrauded him to an extent sufficient to avoid res judicata. Id. Grice’s failure to investigate, however, was based not upon their representations but upon Grice’s mistaken belief that his attorney had investigated the matter fully and had concluded that Grice could not be the father of the child. Grice has failed to show reasonable reliance or proximate cause, which are essential elements of fraud. Garcia v. Unique Realty &c. Co., 205 Ga. App. 876, 877-878 (1) (424 SE2d 14) (1992). In contending that Grice need not assert reasonable reliance or proximate cause because he was not a participant in the fraud, the dissent overlooks the multitude of Georgia decisions requiring that these essential elements be shown in every case of fraud, however innocent the claimant. Grice’s allegation of fraud, therefore, is insufficient to overcome the res judicata effect of the first divorce decree.

The second divorce decree states that the child is the issue of Detwiler’s marriage to Ogle. The trial court correctly found that “Ogle has acknowledged [the child] as his son and supported him for thirteen years, except of course during the periods of Ogle’s incarceration. Ogle is [the child’s] ‘real father’ despite Ogle’s sins and regardless of what a blood test might show.” The effect of Grice’s petition would be to “de-legitimate” a 13-year-old child and then “re-legitimate” him as the offspring of a different marriage. “[I]t is clear from our examination of the legitimation and paternity statutes that the primary purpose of these statutes is to provide for the establishment rather than the disestablishment of legitimacy and paternity. . . . That these statutes should be used to establish legitimacy and paternity is appropriate; it is certainly not in the legitimate child’s best interest to be rendered illegitimate. Moreover, public policy will not permit a mother and an alleged father to enlist the aid of the courts to disturb the emotional ties existing between a child and his legal father after sitting on their rights for the first three years of the child’s life.” (Citations omitted.) Ghrist, supra at 419. Certainly after the lapse of 13 years, public policy forbids the court from becoming involved in this inter-familial dispute.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., Ruffin and Eldridge, JJ, concur. McMurray, P. J., and Beasley, J., dissent.

1 Contrary to the representation that Grice claims was made by his attorney, in 1983 an HLA blood test to establish paternity was available and legally sanctioned in Georgia. See Roddenberry v. Roddenberry, 255 Ga. 715, 717 (342 SE2d 464) (1986).