TN Father Owes Child Support 18 Years After Divorce Even Though Mother Denied Paternity

Tennessee law case summary on retroactive award of child support in Tennessee divorce and family law from the Tennessee Court of Appeals.

State ex rel Kimbrough v. Hales – Tennessee Child Support Law – Retroactive Order to Birth

Patricia Kimbrough and Brian Hales were divorced in 1991 after less than a year of marriage.  Patricia was at the time pregnant.  Brian filed the divorce complaint, and alleged that Patricia was guilty of inappropriate marital conduct, specifically, by becoming pregnant by another.  The final decree in the divorce case stated that Brian was not the father of the expected child.

According to a later affidavit by Brian, the judge in the 1991 case looked at Patricia and asked her whether it was correct that she was pregnant by another.  According to the affidavit, Patricia said yes, “the audience went ooh ooh ooh” and Patricia held her head down.  According to the affidavit, the judge granted the divorce and told Brian “to have a good life.”

Eighteen years later, in 2010, the State of Tennessee sought to establish Brian’s paternity in order to collect retroactive child support.  The trial court ruled that the issue could not be litigated again, because of the doctrine of res judicata—the thing has already been adjudicated.

The State, however, produced a 2009 DNA Test Report which showed a 99.999998% probability that Brian was the child’s father.

The 2010 trial court denied the State’s petition.  It noted that Patricia had lied in the original divorce proceeding, and that she had thereby denied Brian of the opportunity for a relationship with his son for 18 years.

The Court of Appeals disagreed with the trial court’s resolution of the case.  First, the Court of Appeals held that upholding the original divorce decree violated public policy.  The Court of Appeals cited earlier cases where the courts had refused to honor agreements between two spouses as to the paternity of a child.  Those cases applied here, even though this case also involved the 1991 court’s decree.  The Court of Appeals held that this was a distinction without a difference, and that these earlier cases should apply.  And because the earlier judgment should be set aside for public policy reasons, then the doctrine of res judicata did not apply.

Finally, the Court of Appeals had to address the issue of whether Tennessee Code Section 36-2-304 should be applied retroactively.  Under that statute, paternity determinations not based upon scientific evidence are not entitled to preclusive effect.  This statute was enacted in 1997, and Brian argued that it should not apply to the 1991 decree. The trial court held that applying this statute would be improper, but the Court of Appeals disagreed.  Because the Court already found that the original decree was against public policy, then the statute could be applied retroactively.  The Court of Appeals noted that Brian never had a right to “illegitimate the child,”and, therefore, the statute did not take away any rights from him.

State ex rel Kimbrough v. Hales, No. E2011-02539-COA-R3-CV (Tenn. Ct. App., July 25, 2012).

See original opinion for exact language.  Legal citations omitted.

Memphis divorce attorney, Miles Mason, Sr., JD, CPA, practices family law exclusively with the Miles Mason Family Law Group, PLC. To learn more about Tennessee child support laws and guidelines, read and view:

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