An Attempted Paternal Disappearance

January 9, 2017 § Leave a comment

Danny Hicks fathered a child by Jakeida Carter in January, 2007. In October of that year, Danny agreed to be listed as the father of the child, Janiyah, on her birth certificate. Around one year later, Danny entered into a stipulated agreement with DHS admitting paternity and agreeing to pay $202 a month in child support. The agreement was approved by court order. Things rocked gently on in domestic bliss thereafter. Janiyah called Danny “Daddy.” He was involved in Janiyah’s life, was active in her schooling, and, by all accounts was a good father. What could possibly go wrong?

Well, in 2015, a DNA test disclosed that Danny was not Janiyah’s biological father.

Danny filed a petition in chancery court to disestablish paternity and to terminate child support; he also wanted to be reimbursed $1,800 for the unhappy DNA results. Following a hearing, the chancellor responded no, no, and no, citing MCA 93-9-10(3)(c). Danny appealed.

The COA affirmed on December 6, 2016, in a four-page opinion by Judge Fair that was, in my opinion, lengthier than necessary. The words, “Affirmed per MCA 93-9-10(3)(c),” would have sufficed for me. You can read the COA’s opinion at this link.

As I pointed out in detail a previous post, in order to disestablish paternity since 2013, your client’s case must meet the criteria of the statute. In Danny’s case, he failed because, once a court approved a stipulation or acknowledgment of paternity, it was unassailable unless he had filed a petition to set it aside within the time specified in MCA 93-9-9. Danny waited ten years to petition, which is ‘way more than a tad too long.

Danny also argued that the chancellor committed reversible error by not seeing to it that Jakeida was sworn in before she testified. The COA pointed out that he waived that issue by not making a contemporaneous objection at trial.

Another, more substantial, point raised by Danny was that he should have been granted MRCP 60 relief because, he claimed, Jakeida committed fraud in claiming that he was the father. Other than his assertion, there was no evidence in the record of actual fraud. Moreover, the COA held, since he never filed a R60 motion with the trial court, he could not raise the issue for the first time on appeal.

Related note: In Finch v. Finch, 137 So.3d 227, 233 (Miss. 2014), the MSSC held that a chancellor may raise fraud on the court sua sponte in the course of a trial; however, there is no authority for the proposition that a chancellor is obligated to do so. It would have been improvident for the chancellor in this case to do so in the absence of clear and convincing evidence.

Before you go thundering off into court to vindicate a dad in a situation similar to Danny’s, be sure you familiarize yourself with MCA 93-9-10. You might save yourself and your client some grief … and money.

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