Joe Williams v. Mary Duck

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
STATE OF TENNESSEE, ex rel. )
FILED
MARY KATHERINE DUCK, )
) October 29, 1997
Respondent/Appellee, ) Madison Juvenile No. 18-0155
) Cecil Crowson, Jr.
vs. ) Appellate C ourt Clerk
) Appeal No. 02A01-9604-JV-00084
JOE DAVID WILLIAMS )
)
Petitioner/Appellant. )
APPEAL FROM THE JUVENILE COURT OF MADISON COUNTY
AT JACKSON, TENNESSEE
THE HONORABLE WALTER BAKER HARRIS, JUDGE
For the Respondent/Appellee: For the Petitioner/Appellant:
Jennifer Helton Small Charles A. Spitzer
Deputy Attorney General Jackson, Tennesseee
Nashville, Tennessee
Nathan B. Pride
Assistant Attorney General
Jackson, Tennessee
AFFIRMED
HOLLY KIRBY LILLARD, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
ALAN E. HIGHERS, J.
OPINION
This is a paternity case. The appellant putative father appeals from an order of the Juvenile
Court denying his motion for a DNA blood test. We affirm the trial court’s decision.
Danielle Renee Duck was born out-of-wedlock on April 16, 1989 to the appellee, Mary
Katherine Duck (“Duck”). Duck and the appellant putative father, Joe David Williams (“Williams”)
never married. The minor child has remained in the custody of her mother.
Shortly after the child’s birth, the Attorney General filed a petition to establish paternity in
the Madison County Juvenile Court, alleging that Williams was the natural father. The following
day, Williams agreed to a consent order of paternity and support (“Consent Order”) regarding the
child. The Consent Order stated that both Williams and Duck had been fully advised of their rights
and that Williams acknowledged his obligation to support the child. The Consent Order required
that Williams pay $50.00 per month for Danielle’s support.
In December 1990, the Attorney General filed a petition to modify the Consent Order by
increasing the monthly child support. Shortly thereafter the Madison County Juvenile Court entered
an order increasing the monthly child support to $137.00 per month. The modified order also
directed Williams to provide health insurance or, in the alternative, pay one-half of any medical costs
incurred by the child.
Nearly five years later, in November 1995, the Attorney General filed another petition
seeking a further increase in the monthly child support. In response, Williams filed a motion for
DNA blood testing, alleging that he had always believed that the child may not have been his child.
Williams also asserted that Duck informed him that she had engaged in sexual relations with another
party during the time frame in which the child was conceived. Williams asserted that the original
Consent Order establishing paternity to which he agreed in 1989 was signed under duress and
pressure, and stated that he had no relationship with the child.
Duck’s response to Williams’ motion for blood testing argued that the sole reason for his
motion was to retaliate for her attempt to increase the child support amount. Duck denied telling
Williams that he was not the father of the child, and asserted that she had not engaged in sexual
relations with anyone other than Williams during the time period in which the child was conceived.
Duck asserted that Williams had spent significant time with Danielle in the past and that his recent
absence caused Danielle emotional stress.
The Juvenile Court of Madison County held a hearing on Williams’ motion for blood testing,
and subsequently entered an order denying the motion, citing the amount of time that had passed
since the Consent Order establishing paternity, and noting that Williams had made no allegation of
fraud. Williams now appeals the denial of his motion for blood testing.
On appeal, Williams alleges that the trial court erred in denying his motion for blood testing.
He argues that the entry of the Consent Order was not an “initial appearance” within the meaning
of the statutes, because he did not dispute paternity. He asserts further that the statutes do not
require an allegation of fraud in order to obtain a blood test, and that the statutes do not require the
putative father to seek a blood test in his “initial appearance.”
Our review in this case is de novo on the record of the trial court, with a presumption of the
correctness of its factual findings, unless the evidence preponderates against those findings. Rule
13(d), Tenn. R. App. P. No presumption of correctness attaches to the trial court’s conclusions of
law. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).
Tennessee Code Annotated § 24-7-112 governs the right of a party to demand DNA blood
testing. Subsections (a)(1) and (a)(2) both address the conditions under which such a test may be
ordered:
Test to Determine percentage--Admissibility in Evidence--Costs--(a)(1) In the
trial of any civil or criminal proceeding in which the question of parentage arises, the
court before whom the matter may be brought, upon the motion of either party at the
initial appearance, shall order that all necessary parties submit to any tests and
comparisons which have been developed and adapted for purposes of establishing or
disproving parentage. Tests for determining paternity may include any blood,
genetic, or DNA test utilized by an accredited laboratory. Failure to make a timely
motion for submission to such tests and comparisons shall constitute a waiver and
shall not be grounds for a continuance. The results of such tests and comparisons,
including the statistical likelihood of the alleged parent’s parentage, if available, may
be admitted into evidence as provided in subsection (b).
(2) During any civil proceeding in which the question of parentage arises, upon the
motion of either party or on the court’s own motion, the court shall, at such time as
it deems equitable, order all necessary parties to submit to any tests and comparisons
which have been developed and adapted for purposes of establishing or disproving
parentage. . . . (Emphasis added).
Subsection (a)(2) of this statute was added in 1991. The apparent inconsistency between subsections
(a)(1) and (a)(2) has been previously noted by this Court. See Davis v. Davis, No. 03A01-9509-CH-
00327, 1996 WL 12584 (Tenn. App. 1996). The issue was also discussed in O’Brien v. Bainbridge,
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No. 01A01-9404-PB-00175, 1994 WL 590035 (Tenn. App. 1994):
Facially, subsections (a)(1) and (a)(2) are inconsistent in that (a)(1) requires motions
for blood tests to be filed “at the initial appearance” and provides that failure to
timely file the motion constitutes a waiver thereof; whereas (a)(2) states that ‘During
a civil proceeding . . . upon motion of either party or on the court’s own motion, the
Court shall, at such time as it deems equitable, order (blood tests).
Id. at *2. In Davis v. Davis, this Court reconciled these two provisions:
Construing these provisions in para materia, we conclude that (a)(1) requires that
the Judge order testing if one of the parties raises the issue in the initial pleading if
the issue is raised later, (a)(2) grants the Trial Judge discretion in deciding whether
the testing should take place.
Davis, 1996 WL 12584, at *2. Therefore, if Williams had sought a blood test in his initial pleading,
such a test would be required. Since Williams raised the issue later, the trial court had the discretion
to decide whether the test should be ordered.
Williams claims that he is entitled to a blood test as a matter of right under the provisions of
Tennessee Code Annotated § 24-7-112(a)(1) because the juvenile court proceeding in 1989, in which
Williams signed a Consent Order of Paternity and Child Support, did not constitute an “initial
appearance” on the issue of paternity. In support of his argument, Williams cites Williams v.
Campbell, No. 02A01-9408-JV-00177, 1995 WL 429265 (Tenn. App. 1995). In Williams, this
Court discussed what constitutes an “initial appearance.” The parties in Williams were married at
the time of the child’s birth. They divorced shortly thereafter and the mother retained custody of the
child. An order of child support was entered by the Juvenile Court. The issue of paternity was not
raised at this point.
Four years later the father filed a petition to set aside the child support order on the basis of
newly discovered evidence which brought into question his paternity. The father testified that he
had always believed the child to be his. However, following a heated argument regarding the child’s
visitation schedule, the mother and her family members informed him that he was not the father.
This argument took place nearly three years after the child support order was entered. Shortly after
the argument, the father filed a petition requesting that the juvenile court set aside the child support
order on the basis of newly discovered evidence, and further requesting that the juvenile court order
a blood test to determine paternity. The trial court refused to set aside the child support order and
refused to order the parties to submit to a blood test. The father then appealed to this Court.
On appeal, this Court noted that the issue of paternity had not previously been considered.
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It concluded that the father’s petition requesting a blood test constituted an initial appearance under
Tennessee Code Annotated § 24-7-112, thereby requiring that the trial court enter an order for a
blood test to determine paternity:
In the present case, the conditions activating the application of T.C.A. §24-7-112
have been met. This is clearly a civil proceeding involving the question of parentage
in which the appellant moved in the initial appearance before the juvenile court for
an order requiring the parties to submit to a paternity test. Although it can be argued,
based on the holding in Steioff v. Steioff, 833 S.W.2d 94 (Tenn.App.1992), that the
parties’ appearance before the juvenile court on the issue of child support was the
initial appearance, we find the present action to be the first action between the parties
concerning the paternity of [the child]. . . . In the present case, the parties did not
raise the issue of paternity at any time during the action seeking child support. In
fact, the paternity of [the child] was not an issue until the present action was filed
because at the time of the child support order the parties were married and [father]
assumed he was the father of the child.
Williams, 1995 WL 429265, at *2. In the case at bar, Williams argues that in this case, as in
Williams v. Campbell, there was no denial of paternity at the outset. However, the initial
proceeding between Williams and Duck was a petition to establish paternity filed by the Attorney
General. Since Williams and Duck were never married, before an order of child support could be
rendered, a paternity determination was required. It is undisputed that Williams failed to request a
blood test at the time of the initial paternity proceeding. Accordingly, we find that Williams’
petition seeking a blood test was not an “initial appearance” within the meaning of Tennessee Code
Annotated § 24-7-112(a)(1).
Therefore, Williams’ petition for a blood test must be considered pursuant to subsection
(a)(2) of Tennessee Code Annotated § 24-7-112, which grants the trial court the discretion to
determine whether to grant a request for a blood test filed after the initial appearance. The standard
of review on appeal on this issue is whether the trial court abused its discretion in denying the
motion. An appellate court “will not reverse a discretionary judgment of the trial court unless it
affirmatively appears that such discretion has been explicitly abused to great injustice and injury of
the party complaining.” Douglas v. Estate of Robertson, 876 S.W.2d 95, 97 (Tenn. 1994). See also
Ballard v. Herzke, 924 S.W.2d 652 (Tenn. 1996).
In this case, following the hearing, the trial court issued an oral ruling:
[A]s long as you pay support for a child, looks like, [. . .] it is the judgment of the
Court that this petition is denied, and the Court feels that too much time has gone by
and that no allegation of fraud [exists] and so the Court does deny the Motion.
Williams argues that the trial court erred in basing its decision on Williams’ failure to allege fraud.
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However, while the trial court noted the absence of an allegation of fraud, it also relied on the
undisputed lengthy period of time that had passed since the entry of the Consent Order establishing
paternity. In his petition, Williams asserted that Duck informed him that she had engaged in sexual
relations with a third party during the time period in which the child was conceived. However,
Williams failed to establish in the record when this alleged conversation with Duck took place. In
addition, it is undisputed that Williams’ petition was filed shortly after Duck filed a petition seeking
an increase in child support. Under all of these circumstances, we cannot conclude that the trial
court abused its discretion in denying Williams’ petition for blood testing.
The decision of the trial court is affirmed. Costs on appeal are taxed to the Appellant, for
which execution may issue if necessary.
HOLLY KIRBY LILLARD, J.
CONCUR:
W. FRANK CRAWFORD, P. J., W.S.
DAVID R. FARMER, J.
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