Opinion
No. 2000-CA-00198-COA.
May 8, 2001. Rehearing Filed January 31, 2003.
COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT, TRIAL JUDGE: HON. MARGARET ALFONSO, DATE OF TRIAL COURT JUDGMENT: 01/04/2000
DISPOSITION: AFFIRMED
ATTORNEY FOR APPELLANT: DWAYNE G. DEER
ATTORNEYS FOR APPELLEE: GAIL D. NICHOLSON, PETE M. SHEELY, JAMES C. SMALLWOOD III
BEFORE SOUTHWICK, P.J., MYERS AND CHANDLER, JJ.
¶ 1. M.A.S. appeals an order issued by the Harrison County Chancery Court denying his motion to set aside a previous order of paternity. Finding no error, we affirm.
FACTS
¶ 2. In February 1990, F.M. gave birth to a daughter, S.M. At the time, she was romantically and sexually involved with the appellant. In August of 1990, an order approving stipulated agreement of support and admission of paternity was entered in the Harrison County Chancery Court. This order established the appellant as the father of S.M. Appellant claimed S.M. as a dependent for tax purposes and visited with the child up until the death of his son, J.S, in 1993.
¶ 3. J.S.'s death prompted a wrongful death suit in Lawrence County, which resulted in a sizeable settlement. As such, a third suit was opened, this one in the Lawrence County Chancery Court, for the purpose of settling the estate of J.S. The Lawrence County Chancery Court issued an order compelling F.M., S.M., and the appellant to submit to a paternity test. The results of this test excluded the appellant as a possible father of S.M. Accordingly, the Lawrence County Chancery Court issued a final judgment adjudicating heirship, in which it excluded S.M. from the heirs of J.S. The appellant then filed a motion to set aside the previous paternity order in the Harrison County Chancery Court. No challenges of paternity were made in the nine years prior to the filing of this motion. The chancery court denied the motion, holding that Mississippi Rule of Civil Procedure 60(b) did not provide relief to the appellant when applied to the facts of the case and that the doctrines of res judicata and collateral estoppel barred the effect of the order issued by the Lawrence County Chancery Court. This appeal followed.
DISCUSSION
DID THE CHANCERY COURT ERR IN DENYING THE APPELLANT'S MOTION TO SET ASIDE THE ORDER APPROVING STIPULATED AGREEMENT OF SUPPORT AND ADMISSION OF PATERNITY?
Standard of Review
¶ 4. We maintain a limited scope of review in domestic relations matters. This Court will not disturb the findings of a chancellor so long as those findings are supported by substantial evidence and the chancellor did not abuse his discretion, manifestly err, or apply an erroneous legal standard. Denson v. George, 642 So.2d 909, 913 (Miss. 1994).
Analysis
¶ 5. Appellant relies upon Rafferty v. Perkins, 757 So.2d 992 (Miss. 2000), in asserting error on the part of the Chancery Court of Harrison County. In Rafferty, a child was born during the marriage of two parties. Id. at 994. The parties subsequently obtained a divorce, and the wife remarried. Id. It was apparent that she had maintained a sexual relationship with her new husband while married to her ex-husband. Id. The wife believed her new husband to be the biological father of the child, so she obtained DNA testing to determine paternity. Id. The test revealed the actual father to be a third man. Id.
¶ 6. The wife then initiated a paternity action to have the third male adjudicated as the father of the child so that her second husband could adopt the child pursuant to an agreement already reached with the third man. Id. The ex-husband opposed the petition, but a jury found the third man to be the father of the child, and the court issued order in accordance with such finding. Id. This Court reversed and remanded, and the Mississippi Supreme Court, on writ of certiorari, reversed the decision of this Court. Id. at 995. The effect of the supreme court's decision was to affirm the holding of the trial court adjudicating the third man as the father of the child. Id.
¶ 7. Appellant argues that Rafferty is controlling in this matter and that we should therefore reverse the order denying relief issued by the Chancery Court of Harrison County. However, we find Rafferty to offer no guidance in the resolution of this matter because there was no order establishing paternity prior to the one challenged. Rather, the first husband in Rafferty was previously considered to be the father of the child due to the rebuttable presumption that a child born during marriage is legitimate. Rafferty, 757 So.2d at 995 (citing Estate of Taylor, 609 So.2d 390, 394 (Miss. 1992)). There were no res judicata or collateral estoppel issues present in that case. In the case at bar, an order was issued by the Harrison County Chancery Court establishing the appellant as the father of S.M. Nine years later, a judgment adjudicating heirship was entered in the Lawrence County Chancery Court having the effect of declaring that S.M. was in fact not the child of the appellant. Rafferty, therefore, is not controlling in this matter.
¶ 8. Collateral estoppel "precludes parties from relitigating issues authoritatively decided on their merits in prior litigation to which they were parties or in privity." State ex rel. Moore v. Molpus 578 So.2d 624, 640 (Miss. 1991). The appellant was a party to the 1990 order entered in the Harrison County Chancery Court approving the stipulated agreement of support and admission of paternity. He was also a party to the administration of J.S.'s estate in the Lawrence County Chancery Court, in which S.M. was named a defendant and deemed to be excluded from the heirs of J.S. The Harrison County Chancery Court was therefore entitled to rely on the doctrine of collateral estoppel in denying the appellant's motion to set aside the first paternity order.
¶ 9. Appellant also argues that he is entitled to relief under Mississippi Rule of Civil Procedure 60(b). This rule provides, in pertinent part, that a court:
may relieve a party . . . from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(6) any other reason justifying relief from the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken.
M.R.C.P. 60(b).
¶ 10. The appellant also asserts that the circumstances of the case at bar entitle him to relief under the "catch all" provision, subsection six of Rule 60(b). In support of this assertion, he notes that he timely filed the motion to set aside the order establishing paternity once he had received the DNA results which showed that he was not S.M.'s father. He also contends that "justice requires that [he] be relieved from supporting a child that is not his." We find that any relief that the appellant could have received would have arisen from provision (2) or provision (3) of Rule 60(b), and that he is not entitled to such relief because he failed to file a motion within six months of the entry of the order. For the aforementioned reasons, we affirm the judgment of the Harrison County Chancery Court.
¶ 11. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT DENYING THE MOTION TO SET ASIDE THE PREVIOUS ORDER APPROVING STIPULATED AGREEMENT OF SUPPORT AND ADMISSION OF PATERNITY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., AND SOUTHWICK, P.J., BRIDGES, THOMAS, AND CHANDLER, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J., PAYNE, AND LEE, JJ.
¶ 12. An appropriate DNA blood analysis determined that M.A.S. is not the biological father of S.M. The Lawrence County Chancery Court has entered an order to that effect. A prior order entered in the Chancery Court of Harrison County, without the benefit of a DNA paternity analysis, determined that M.A.S. was the biological father of S.M. and ordered M.A.S. to pay child support. M.A.S. began paying child support pursuant to the Harrison County order, but after learning of the results of the DNA paternity blood analysis, filed a motion in the Harrison County Chancery Court to set aside the previously-entered paternity and child support order. The motion did not cite any legal authority as a basis for granting the relief. It simply recited the fact that a DNA blood analysis had determined that he was not the biological father of S.M. The Harrison County Chancery Court refused to vacate the previous order, holding that none of the provisions of Rule 60(b) of Mississippi Rules of Civil Procedures were applicable and that the doctrines of res judicata and collateral estoppel foreclosed the possibility of any relief.
¶ 13. The majority agrees with the Harrison County Chancery Court and affirms that court's decision on the same bases upon which the chancery court relied. I respectfully dissent because I do not believe the paternity of S.M. has previously been factually litigated; therefore, application of the doctrines of res judicata and collateral estoppel is inappropriate. Further, because of the unique facts of this case, I do not believe the doctrines should be applied even if all of the prerequisites for their application were met. Additionally, while I harbor serious doubts about the efficacy of Rule 60(b) of Mississippi Rules of Civil Procedure to grant the requested relief, I do not believe M.A.S. is without remedy, for I believe the Harrison County Chancery Court had jurisdiction to grant relief pursuant to Mississippi Code Annotated Section 93-9-15 (Supp. 2000), provided it determined that it was in the best interest of the child to do so.
This section provides in part:
The county court, the circuit court, or the chancery court has jurisdiction of an action under Sections 93-9-1 through 93-9-49 [statutes comprising Mississippi Uniform Law on Paternity], and . . . [t]he court has continuing jurisdiction to modify or revoke an order and to increase or decrease amounts fixed by order for future education and necessary support and maintenance. (emphasis added).
¶ 14. Let me first say that, in my opinion, this case involves more than the pristine and mechanical application of the doctrines of res judicata and collateral estoppel and Rule 60(b). I view this matter as a difficult case implicating considerations of broad social policy which the Mississippi courts, as well as other courts across this nation, have been forced to confront because of advancements in scientific technology, an advancement which has not been adequately addressed by our statutory laws.
¶ 15. For centuries, courts have indulged the presumption that a child born in wedlock is presumed to be the child of the husband. For equally as long, this presumption has stood as a mighty fortress, protecting both the sanctity of marriage and the stability of the family unit. In cases, such as this one, where a child was born out of wedlock, the courts indulged, and, in most instances, gave great weight to the testimony of the mother that the putative father had access to her during the time that the child had to have been conceived. Consequently, in these cases, with a few notable exceptions, the male, who had been identified by the mother as the father of the child, was in fact legally adjudicated to be the father. However, with the refinement of DNA technology, it is now possible to conclusively exclude paternity and to offer almost irrefutable probabilities as to paternity. It is unwise not to embrace this new technology and impossible to do so without having to confront long established social policy which it brings to our judicial radar screen as we search for solutions to the complex problems which society expects its courts to resolve. Mindful of this difficult but required task, I will attempt to lay bare, in the paragraphs that follow, my reasons for parting ways with the majority.
I. Collateral Estoppel
¶ 16. First, I agree with the majority's statement of law that " collateral estoppel precludes parties from re-litigating issues authoritatively decided on their merits in prior litigation to which they were parties or in privity." Majority opinion at (¶ 8). However, "the doctrine of collateral estoppel must never be seen as anything other than an unusual exception to the general rule that all fact questions should be litigated fully in each case, and where there is room for suspicion regarding the reliability of those fact findings, collateral estoppel should never be applied." Marcum v. Mississippi Valley Gas Co., Inc., 672 So.2d 730, 733 (Miss. 1996) (quoting Mississippi Employment Security Comm'n v. Philadelphia Municipal Separate School District, 437 So.2d 388, 397 (Miss. 1983)).
¶ 17. The record contains a document entitled "Stipulated Agreement of Support and Admission of Paternity." It was executed by M.A.S. on July 16, 1990. It is unclear in the record whether a complaint to establish paternity preceded the execution of the stipulated agreement. On August 24, 1990, the chancellor signed an order entitled "Order Approving Stipulated Agreement of Support and Admission of Paternity." There is no indication in the record that a hearing was held prior to the entry of the order. The order found that M.A.S. was a minor and the father of S.M. There is no indication in the record that a guardian ad litem was appointed to represent M.A.S. before he signed the stipulated agreement, and according to M.A.S.'s testimony, he was not represented by counsel at that time. Additionally, there is no indication in the record that M.A.S.'s parents knew what was going on, and most importantly, there is nothing in the record to indicate that M.A.S. was aware, or made aware by anyone associated with the Department of Human Services, that he was entitled to, or could request, genetic testing before he signed the stipulated agreement. When S.M. was conceived, M.A.S. was seventeen years old, and S.M.'s mother was sixteen. Both were high school students.
The docket sheet included in the record does not show that a complaint seeking an adjudication of paternity was ever filed. Even the "Order Approving Stipulated Agreement of Support and Admission of Paternity" does not appear among the docket entries. The first item reflected among the docket entries is a filing on December 23, 1993. Apparently, this was a contempt action against M.A.S. stemming from his failure to pay child support as ordered in August 1990.
¶ 18. The circumstances surrounding the entry of the order of paternity leave me unconvinced that all fact questions concerning the paternity of S.M. were litigated fully so that there is no room for suspicion regarding the reliability of those findings, and based on the pronouncement in Mississippi Employment Security Commission that such facts should be fully litigated, I am compelled to conclude that this is not the type of case where collateral estoppel or res judicata should apply. See Mississippi Employment Security Comm'n, 437 So.2d 388 . In other words, res judicata and collateral estoppel apply only when fact issues have actually been litigated. Here, the fact issue of paternity was not litigated; it was admitted. I turn now to a discussion of the appropriateness of Rule 60(b) relief.
II. Applicability of Rule 60(b)
¶ 19. The majority concludes that Rule 60(b)(2)(3) of Mississippi Rules of Civil Procedure would be the only available avenue of relief to M.A.S. but that he cannot take advantage of the relief afforded there because his motion to set aside the order of paternity was filed more than six months after the order of paternity was entered. Subsections two and three of Rule 60(b) allow relief from a prior judgment based on accident or mistake and newly discovered evidence. On the other hand, M.A.S. contends that he is entitled to relief under subsection six of the rule which allows relief from a prior order or judgment for "any other reason justifying relief from the judgment." M.R.C.P. 60(b)(6). An application for relief under subsection six of Rule 60(b) is not proscribed by the six month limitation period. However, it is required to be made within a reasonable time after entry of the judgment from which relief is sought. M.A.S. argues that since he filed his motion for relief immediately after learning of the DNA results, his filing was within a reasonable time as required by the rule.
¶ 20. The chancellor determined that M.A.S.'s best chance for relief rested with subsection six, the catch-all section, of Rule 60(b). As stated, that subsection provides that a prior judgment may be set aside "for any other reason justifying relief from the judgment." The application for relief must be brought within a reasonable time after the judgment was entered. The chancellor determined that M.A.S. had waited too long to file his motion; therefore, M.A.S. was not entitled to relief under Rule 60(b)(6).
¶ 21. Like the chancellor, I do not believe that subsections two and three of Rule 60(b) are applicable; however, unlike the chancellor, I do not believe that, under the peculiar facts of this case, M.A.S.'s motion was unreasonably late for purposes of Rule 60(b)(6). Nevertheless, I believe the better authority upon which the chancellor could have, and should have, traveled is Mississippi Code Annotated Section 93-9-15 (Supp. 2000). As stated, this section provides the jurisdictional basis in paternity actions and provides in part that, "[t]he court has continuing jurisdiction to modify or revoke an order. . . ."
¶ 22. The chancellor concluded, in effect, that he no longer had jurisdiction, and therefore could not grant any relief. I disagree; therefore, I believe this case should be reversed and remanded. Although I conclude that it should be reversed and remanded instead of reversed and rendered, I do so reluctantly. I have concluded that reversing and remanding is the proper course because the chancellor did not thoroughly consider whether it would be in the best interest of S.M. to revoke the order of paternity and support. For example, there was no inquiry as to who the biological father may be, whether he is still alive and what his financial, marital, and social status might be. There was some testimony attempting to show that S.M. enjoyed a relationship with M.A.S., but a close look at that testimony shows that no relationship really existed. In August 1999, F.M. told the chancellor that no relationship existed. This is what she said then:
THE COURT: Has M.A.S. had a relationship with S.M. throughout S.M's lifetime? I mean, do they visit? Does he come by and see S.M.?
F.M.: No.
However, in November 1999, after it had been impressed upon her that some money would come to S.M. if the paternity order was not vacated, F.M., during the hearing on the motion to set aside the paternity order, changed her testimony slightly. This is what she said then:
Q. Now, you mentioned some visits of you up there and him [M.A.S.] down here, would he come down casually also in addition to those overnight visits? Did he come by and see [the child]?
A. When he was here. It wasn't long. Just say that he was there. That's how I would put it.
Q. Okay. But I mean he would come by your house?
A. Yes.
Q. How did he act towards the child?
A. Like a father.
Q. And what — what has [the child] thought all of these — how old is she now?
A. Nine.
Q. What has — what has she said to her friends and people around her about who her daddy was for these nine years?
A. That he lives in the country. That's all she has ever said. Her daddy lives in the country.
Q. Okay. Have you talked to her about what has happened here with the blood tests?
A. Yes, I have.
Q. All right. And what has been her response to that?
A. Hurt and confused.
¶ 23. There also was some testimony regarding a warm relationship between S.M. and M.A.S.'s sisters. However, terminating the child support order would have no effect on that relationship, and if the mother was willing to allow that relationship to continue it certainly could. But what is most important is that that is a relationship between M.A.S.'s siblings and S.M., not a relationship between M.A.S. and S.M.
¶ 24. The chancellor placed great weight on the testimony of F.M., S.M.'s mother. F.M. testified that she told M.A.S. that he might not be the father of S.M. but that M.A.S. said it did not matter. While it is the role of the trial judge to assess the credibility of the witnesses, it is doubtful on this record whether F.M. has much credibility. For example, in addition to altering her testimony regarding the relationship between M.A.S. and S.M., F.M. also gave this testimony regarding S.M.'s birth certificate:
Q. Okay. When the child was born, what participation did [M.A.S.] have at the time you went to the hospital to have the child?
A. He called — he happened to call the day that she was born, and my mom told me that he had called. And she gave him the number to the hospital room, and he called and I did discuss with him that I wanted [S.M.'s] last name to be his last name and he had to be there to sign the paper. That was the first day, so I had two more days to be in the hospital.
Q. Okay.
A. And that he would be there if he could get there. But it was discussed that his name be put on the certificate where it has father, that his name goes there.
* * * *
Q. And did he come down in time to get the name on the birth certificate or not?
A. No, not to have her name changed. No, he didn't.
Q. Is his name on the birth certificate?
A. Yes.
Q. And did he know that?
A. Yes.
The chancellor, however, states in her findings of fact that a review of the records indicates that M.A.S. is not listed as the father on S.M.'s birth certificate. Other pertinent portions of the chancellor's findings of fact follow:
[M.A.S.] has not alleged, nor does this Court believe, that [F.M.] misrepresented to him the circumstances surrounding [S.M.'s] conception. [M.A.S.] knew nine years ago of the possibility that he was not [S.M.'s] father, but only now, when a substantial amount of money is at stake, does he press the issue. [M.A.S.] did not seriously seek blood tests until it became apparent that [S.M.] would receive a significant portion of the wrongful death settlement resulting from [J.S.'s] death, thereby reducing his and his wife's share of the proceeds. In 1990, [M.A.S.] represented to this Court that he was [S.M.'s] father. He made the decision to accept the child as his, and she has relied on his decision and invested faith in him as her father. This Court will not let him further disrupt the life and stability of this child in an action motivated so obviously by greed.
The Court's decision, however, is not based on the distasteful motives evidenced herein, but rather on [M.A.S.'s] unreasonable delay in seeking relief.
¶ 25. In light of the mother's testimony, it is interesting, if not perplexing, that the chancellor would say that the child "has relied on M.A.S.'s decision [to accept her as his child] and invested faith in him as her father" and that the chancellor was not going to let M.A.S. "further disrupt the life and stability of this child." My reading of the record, as stated, indicates that M.A.S. has had no meaningful relationship with S.M.
¶ 26. A review of the record indicates that the "Petition for Letters of Administration and for Appointment of Administratrix, Adjudication of Heirship, Authority to Settle a Disputed Claim and for Other Equitable Relief" recited in paragraph three that J.S. was survived by his half sister, S.M. This petition was signed by M.A.S. as well as his wife who was appointed administratrix. Therefore, the record does not necessarily support the notion that M.A.S.'s desire to prevent S.M. from sharing in the proceeds of J.S.'s estate was the motivating factor in M.A.S.'s obtaining the blood tests. In fact, the administratrix of J.S.'s estate was M.A.S.'s wife. It is equally as reasonable to conclude that M.A.S.'s wife, who is not S.M.'s mother, did not want to share the proceeds with S.M.
¶ 27. M.A.S. relies on Rafferty v. Perkins, 757 So.2d 992 (Miss. 2000), as the controlling legal authority in this case. He advises in his brief that Rafferty was decided after the instant case was heard by the chancellor. The majority distinguishes Rafferty on the basis that in Rafferty a prior order of paternity did not exist. I am not sure that that is a sufficient distinction. A judgment of divorce had been entered in Rafferty. It is true that the judgment recited that the child was born of the marriage as opposed to saying that Perkins was the father of the child. However, the judgment was predicated upon a sworn joint complaint for divorce and the presumptive father acknowledged that the child was born to the parties. I, however, do not find Rafferty absolutely controlling because the issues of res judicata, collateral estoppel and the appropriateness of relief under Rule 60(b) were not matters considered in Rafferty. Further, it was clear from the record in Rafferty that any argument to the effect that the best interest of the child would be compromised if Perkins's parental rights were terminated, was simply not tenable on the facts presented there.
¶ 28. For the reasons presented, I would reverse and remand this case for a full consideration of all factors affecting the interest of the child with directions to the chancellor to make a determination of whether it is in the best interest of the child, in light of the DNA results and all attendant circumstances, to revoke the order of paternity and support. Much can be gleaned from the present record pointing in the direction that the child's interest would not be adversely affected. It is obvious that termination of child support payments will adversely affect the child if those payments cannot be replaced, but I do not believe this factor alone should bar the requested relief. As stated, I believe this case should be reversed and remanded for further development of the record and specific findings as to the best interest of the child.
KING, P.J., PAYNE AND LEE, JJ., JOINED THIS SEPARATE OPINION.