TN Supreme Court to Hear Paternity Fraud Case

This article tells us that the Tennessee Supreme Court has agreed to hear an appeal in a paternity fraud case (WREG, 6/7/11).  Here’s the opinion of the appellate court from which the appeal to the Supreme Court is taken.  The case may have the potential to establish (or not) a tort cause of action for paternity fraud in the State of Tennessee.

Briefly, Chadwick Craig and Tina Marie Hodge began dating in high school in 1989.  She already had a daughter.  They continued their relationship for a couple of years but then broke up for a short time.  During that time, she had sex with one Joey Hay.  Shortly thereafter she learned she was pregnant.

But Tina didn’t do what I’ve many times argued must be done – tell both guys about her pregnancy and that each may be the father.  Among many other things, this case shows the consequences of failing to require mothers to disclose that information.

She told Chad that she was pregnant.  He asked “Is it mine?” and she said “Yes.”  That scenario was disputed by Tina at trial, but the judge found that she lacked credibility and the appellate court did not overturn that finding.

So, based on her saying the child was his, Chad and Tina married and he treated the little boy as his own.  He also adopted Tina’s daughter that she’d had in high school.

They stayed married for about 10 years until Tina found another man and they divorced.  Tina got primary custody and Chad got visitation and a child support order.  Eventually, the boy came to live with Chad.

But as he grew older, Chad realized that the boy bore no physical resemblance to him.  So one night, while the boy slept, Chad swabbed the inside of his cheek and sent that specimen and one of his own to a DNA laboratory.  Sure enough, the boy had been fathered by someone else.

That someone was Joey Hay, as subsequent genetic testing showed.

So Chadwick Craig sued Tina Hodge under a variety of civil theories that consisted mostly of intentional and negligent misrepresentation that caused damages.  The damages were things like past child support and medical insurance premiums that he’d paid over the years of their divorce.  He also sued for emotional distress.

The trial court said “yes” to all of that.  It found that Tina had misrepresented an issue of material fact on which Chad had relied and that caused his damages.  In short, it found she’d committed fraud and should pay over $130,000.

The appellate court reversed on all counts.  I won’t go into the rather arcane reasoning, but I will hit a few “high points.”

First, Tennessee law, in accordance with the federal Bradley Amendment, prohibits any retroactive modification of a valid child support order.  That’s to prevent non-custodial parents from relitigating child support orders ad infinitum

Amazingly enough, the court of appeals managed to construe the suit for damages filed by Chadwick Craig as a “modification” of a child support order.  I would argue the obvious – that he was doing no such thing.  He wasn’t trying to modify anything at all; he was simply suing for fraud, which he had amply proved and the damages included items he’d been forced to pay by the order. 

Is a suit for damages from a breech of contract a “modification” of that contract?  The idea is silly.

Another weak point of the appellate court’s opinion is that in order to be exempt from later modification, a child support order must be “valid.”  The court nowhere considered the possibility that a child support order procured by fraud might not be a valid one.

It’s that ruling by the appellate court that the Tennessee Supreme Court should overrule.  The appellate court’s opinion is shaky and no dictionary definition of the word “modification” includes a suit for damages for a wrong committed.  So we’ll look for what the Tennessee Supreme Court has to say about that.

Of course if the high court agrees with the court of appeals, it’ll be the final word on the issue until the legislature changes the statute.  If the Supreme Court agrees, many of dads’ damages in paternity fraud cases will be unavailable to them for reimbursement in a civil suit.  Once again the courts of the state will have scrutinized a woman’s knowing deception of a man about one of the most important things in his life and given her the green light.  The fact will not be lost on other women.

But, much of the appellate court’s treatment of the case depends on a single thing – the poor pleading of Chadwick Craig’s attorney.  Put simply, he/she didn’t plead certain grounds for recovery of damages.  If he/she had, it’s possible that Craig would have gotten an order of recovery that the appellate court wouldn’t have reversed.  So in the future, a man who’s been defrauded by a mother will be able to sue under those theories and perhaps succeed where Craig has so far failed.

Perhaps most important, here’s something about the trial court’s decision that the appellate court didn’t reverse.

Moreover, the evidence also supports the trial court”s finding that, under the circumstances, Mother had a duty to disclose to Husband that Hay might be the father of the child she was carrying, and that Mother intentionally failed to disclose this material fact.

The key word there is “duty.”  In order for anyone to recover damages in civil court, the person they sue has to have some duty to them to do, or refrain from doing a certain thing.  If there’s no duty, there’s no lawsuit.

So it’s always been a question of enormous import in the area of paternity fraud – “does the mother have a duty to disclose who the true father is or who he might be?”  If she doesn’t, then no defrauded man can ever sue a defrauding mother for damages because she has no legal obligation to tell him the truth.

What the trial court said and what the appellate court agreed with is that she does have a duty to disclose who the possible fathers are.  (The opinion uses the words “under these circumstances” without indicating what those circumstances are, so the holding may be broad or narrow depending on those.)

So, if this case is affirmed by the Tennessee Supreme Court, defrauded men will likely still be able to sue for paternity fraud based on the concept of intentional or negligent infliction of emotional distress.  They won’t be able to get their child support back, but they’ll be able to get compensatory and possibly punitive damages.

And the high court has the opportunity to disavow the appellate court’s frankly odd notion that a civil suit for damages in some way is a “modification” of a “valid” child support order.

We’ll see what the judges do, but they have the opportunity to significantly advance the just cause of men’s and fathers’ rights.

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