Darla Jo Adams Audirsch v. Griffin Lynn Audirsch ( 2021 )

01/22/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 4, 2021
DARLA JO ADAMS AUDIRSCH v. GRIFFIN LYNN AUDIRSCH
Appeal from the Chancery Court for Moore County
No. 2907 J. B. Cox, Chancellor
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No. M2020-00279-COA-R3-CV
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The Appellant, who is the former spouse of the Appellee, appeals the trial court’s denial of
his motion for “Rule 60” relief seeking residential time with the Appellee’s child. There
is no dispute that the Appellant has been excluded as the father of the child based upon
DNA testing he requested. Discerning no error on the part of the trial court, we affirm its
judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
and Remanded.
ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which ANDY D. BENNETT,
and JOHN W. MCCLARTY, J., joined.
L. Samuel Patterson, Columbia, Tennessee, for the appellant, Griffin Lynn Audirsch.
Darla Jo Adams Audirsch1, Lynchburg Tennessee, Pro se.
OPINION
The present appeal stems from a divorce proceeding between Griffin Lynn Audirsch
(“the Appellant”) and Darla Jo Adams Audirsch (“the Appellee”). In her complaint
commencing divorce proceedings against the Appellant, the Appellee averred that one
child had been born during the marriage, but she asserted that the Appellant was not the
biological father. According to the Appellee, both she and the Appellant were aware that
he was not the father of the child. The complaint alleged the Appellee’s child had been
born in December 2014 and that the parties had separated the following summer in August
2015. According to the Appellee, the Appellant was incarcerated at the time of the
complaint’s filing. Following the filing of the Appellee’s divorce complaint, the Appellant
1
Appellee Darla Jo Adams Audirsch did not file a brief or otherwise participate in this appeal.
requested DNA testing to determine parentage. Subsequent testing, conducted pursuant to
court order, confirmed the Appellee’s assertion, placing the Appellant’s probability of
paternity at “0%.” The ensuing divorce judgment accordingly noted there was clear and
convincing evidence that the Appellant was not the biological father of the Appellee’s child
and held that he had no rights or claims to the child.
The Appellant’s present grievance specifically relates to his unsuccessful effort to
set aside the trial court’s judgment relative to claimed rights to the child. In a “Rule 60”
motion filed subsequent to the entry of the divorce decree,2 the Appellant acknowledged
he was not the biological father of the child but requested that he be awarded “residential
sharing time.” The trial court ultimately denied relief to the Appellant and ruled against
him on his motion, holding in relevant part that “[t]he DNA test result, obtained based on
[the Appellant’s] request and with [the Appellant’s] active participation, indicating that
[the Appellant] is not the father of the child, overcomes the presumption of paternity raised
by the child being born during the marriage.” This appeal followed.
On appeal, the Appellant argues that he should be given residential time and
specifically points to the definition of a “legal parent” contained in Tennessee Code
Annotated section 36-1-102, which contains definitions applicable to adoption and
termination. Specifically, as the Appellant notes, a “legal parent” thereunder includes “[a]
man who is or has been married to the biological mother of the child if the child was born
during the marriage.” Tenn. Code Ann. § 36-1-102(29). According to the Appellant, “[i]f
the mother remarries and wanted to have her new husband adopt the child, then she would
have to terminate the rights of the Appellant. She would have to do so because he is
recognized as the legal father under Tennessee law.”
There does not appear to be any dispute that the child at issue was born during the
marriage of the parties, and we do not question under the law that such a fact made the
2
The divorce decree was entered on September 23, 2019. The “Rule 60” motion was filed thirty
days later on October 23, 2019. Although we are of the opinion that it has no consequence to the result
herein, technically this motion should have been considered as a motion for relief under Rule 59. This
Court encountered a similar issue recently:
On September 18, 2019, the trial court entered its order granting Defendant’s motion to
dismiss. Thirty days later, on October 18, 2019, Plaintiff filed her motion to “reconsider,”
which the trial court appropriately treated as a motion to alter or amend. See Howell, 372
S.W.3d at 579 n.3. Because Plaintiff filed her motion within 30 days of the entry of
judgment, the order granting Defendant’s motion to dismiss was not yet a final
decision. See Tenn. R. App. P. 4(a); Thigpen, 1997 WL 351247, at *3. As such, despite
Plaintiff labeling her motion as a Rule 60.02 motion, it should be reviewed
under Rule 59.04.
Black v. Khel, No. W2020-00228-COA-R3-CV, 2020 WL 7786951, at *4 (Tenn. Ct. App. Dec. 30, 2020).
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Appellant the presumptive father. See Tenn. Code Ann. § 36-2-304 (noting that a man is
rebuttably presumed to be the father of a child if the man and child’s mother “are married
or have been married to each other and the child is born during the marriage”).
Presumptions, however, by their very nature are not absolute as to their subject matter, and
here, we agree with the trial court that the Appellant’s presumption of parentage was
sufficiently overcome by the very DNA testing he requested be performed. Moreover, the
Appellant conceded he was not the biological father in his “Rule 60” motion. As for his
argument that he carries a parental status such that he would even be required to be involved
in termination proceedings should a future spouse of the Appellee wish to adopt the child,
we note that the same statutory section relied upon by the Appellant for his position about
him being the “legal parent” belies the point. Indeed, the Code provides that, where as
here, “the presumption of paternity . . . is rebutted . . . the man shall no longer be a legal
parent for purposes of this chapter and no further notice or termination of parental rights
shall be required as to this person.” Tenn. Code Ann. § 36-1-102(29)(C).
The trial court’s judgment is affirmed, and we hereby remand the case for such
further proceedings as may be necessary and consistent with this Opinion.
s/ Arnold B. Goldin
ARNOLD B. GOLDIN, JUDGE
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