Ashburn v. Apr. Rogers & S.C. Dep't of Soc. Servs. Child Support Div.

Decision Date02 August 2017
Docket NumberOpinion No. 5505.
Citation420 S.C. 411,803 S.E.2d 469
CourtSouth Carolina Court of Appeals
Parties Michael ASHBURN, Appellant, v. April ROGERS and South Carolina Department of Social Services Child Support Division, Respondents.

Sharnaisha Naki Richardson-Bax, of The Bax Law Firm, PA, of Beaufort, for Appellant.

Harry O. Shaw, III, of Charleston, for Respondent South Carolina Department of Social Services Child Support Division.

April Rogers, of Charleston, Pro Se.

Addison D. Fender, of Fender Law Firm, of Beaufort, as Guardian Ad Litem.

GEATHERS, J.:

Michael Ashburn appeals the family court's order denying relief from a previous order of paternity that found him to be the father of minor child E.A. (Child). Ashburn argues it is no longer equitable that the paternity order, wherein Ashburn acknowledged paternity of Child, have prospective application because genetic tests show Ashburn is not Child's biological father. He also argues the family court failed to (1) conduct an analysis on the potential adverse impact of the determination on the public interest and (2) consider the best interests of Child. We reverse.

FACTS/PROCEDURAL HISTORY

Ashburn and April Rogers (Mother) were involved in a relationship lasting from late 1999 to early 2000. Mother became pregnant during this time and she gave birth to Child in October 2000. Ashburn is Caucasian, Mother is African-American, and Child is biracial. Mother informed Ashburn that he was the only Caucasian with whom she had been intimate. At the time, Ashburn was enlisted in the United States Marine Corps and stationed at Parris Island in Beaufort, South Carolina. Ashburn did not attend Child's birth and did not visit Child until the Marine Corps required him to when Child was seven months old.

Subsequently, Ashburn was served with an Administrative Process Notice of Financial Responsibility and Paternity Determination, and an administrative conference was held on March 28, 2001. Although Ashburn was given the opportunity to request genetic testing at the conference, he waived it. The family court prepared an Administrative Process Order of Financial Responsibility that Ashburn and Mother signed. The order required Ashburn to pay $100.00 semi-monthly in child support. In the order, Ashburn admitted to being the natural father; the order states "[non-custodial parent] freely and voluntarily acknowledged paternity" of Child.

In May 2002, Ashburn signed an agreement with the Department of Social Services (DSS) requesting genetic testing, but he failed to submit a sample. In 2003, Ashburn was re-stationed in Japan, and contact ceased between Ashburn, Mother, and Child. Thereafter, Ashburn did tours of duty in Iowa and Hawaii, and as of June 2014, he was serving in North Carolina.

In November 2012, Mother requested the family court modify Ashburn's child support obligation. The following month, Ashburn requested visitation with Child, and the parties agreed to arrange a visit. Ashburn met with Child in Charleston, South Carolina. During this visit, Ashburn obtained a genetic sample from Child and submitted his and Child's genetic samples with a drug-store DNA kit for paternity testing. The test excluded Ashburn as Child's biological father.

Based on the results of the self-conducted DNA test, Ashburn filed an independent action to disestablish paternity in April 2013 on the grounds of fraud and material mistake of fact. DSS scheduled genetic testing of Ashburn and Child, and the results confirmed Ashburn was not the biological father of Child.

At the June 2014 hearing on the petition to disestablish paternity, Mother testified she could not understand the results of the DNA test because Ashburn was the only Caucasian man with whom she had been intimate. However, in responding to the family court's examination, Mother subsequently admitted she had become intoxicated one night while at a party with a Caucasian male friend and "something" could have happened—this was apparently around the time of Child's conception. The family court found there was no extrinsic fraud to support relief from the previous determination of paternity and Ashburn was the legal father of Child. Ashburn filed a motion for reconsideration arguing for the first time, pursuant to Rule 60(b)(5), SCRCP, "it [was] no longer equitable that the judgment should have prospective application." The family court denied the motion for reconsideration. This appeal followed.

ISSUE ON APPEAL

Did the family court err in finding Ashburn is Child's legal father despite genetic testing proving he is not Child's biological father?

STANDARD OF REVIEW

"In appeals from the family court, the appellate court has the authority to correct errors of law and to find facts in accordance with its own view of the preponderance of the evidence." Mr. T v. Ms. T , 378 S.C. 127, 131–32, 662 S.E.2d 413, 415 (Ct. App. 2008). However, the appellate court is "not required to ignore the fact that the [family] court, who saw and heard the witnesses, was in a better position to evaluate their credibility." Fiddie v. Fiddie , 384 S.C. 120, 124, 681 S.E.2d 42, 44 (Ct. App. 2009). Consistent with this de novo review, the appellant retains the burden to show that the family court's findings are not supported by a preponderance of the evidence; otherwise, the findings will be affirmed. Lewis v. Lewis , 392 S.C. 381, 392, 709 S.E.2d 650, 655 (2011).

LAW/ANALYSIS

Ashburn contends he should be permitted to disestablish paternity for two reasons. First, Ashburn argues, pursuant to Rule 60(b)(5), it is no longer equitable that the previous order establishing paternity have prospective application.1 Second, Ashburn argues the family court failed to address the adverse impact of the determination on the public interest.2 Additionally, Ashburn argues the family court erred in failing to make an explicit ruling regarding the best interests of Child.3

As to Ashburn's 60(b)(5) argument, the family court, relying on Mr. G v. Mrs. G , 320 S.C. 305, 465 S.E.2d 101 (Ct. App. 1995), noted it is the policy in South Carolina that once a case is decided, it should remain decided with certain, very narrow exceptions. In proceeding to rule, the family court determined that no exception applied. Although neither the family court's order nor the parties' briefs on appeal discussed the application of res judicata or collateral estoppel, the family court's effort to distinguish Mr. T requires that we address the doctrines here.

"Res judicata bars subsequent actions by the same parties when the claims arise out of the same transaction or occurrence that was the subject of a prior action between those parties." Judy v. Judy , 393 S.C. 160, 172, 712 S.E.2d 408, 414 (2011) (quoting Plum Creek Dev. Co. v. City of Conway , 334 S.C. 30, 34, 512 S.E.2d 106, 109 (1999) ). "Under the doctrine of res judicata, [a] litigant is barred from raising any issues [that] were adjudicated in the former suit and any issues [that] might have been raised in the former suit.’ " Id. (first alteration in original) (quoting Plum Creek Dev. Co. , 334 S.C. at 34, 512 S.E.2d at 109 ). However, res judicata and collateral estoppel "have been subjected to exceptions to their application." Mr. T , 378 S.C. at 137, 662 S.E.2d at 418. These "preclusive doctrines are ‘not to be rigidly or mechanically applied and must[,] on occasion, yield to more fundamental concerns.’ " Id. at 138, 662 S.E.2d at 419 (quoting People v. Plevy , 52 N.Y.2d 58, 436 N.Y.S.2d 224, 417 N.E.2d 518, 521 (1980) ). Collateral estoppel or res judicata "may be precluded [when] unfairness or injustice results, or public policy requires it." Carrigg v. Cannon , 347 S.C. 75, 81, 552 S.E.2d 767, 770 (Ct. App. 2001) (citing State v. Bacote , 331 S.C. 328, 331, 503 S.E.2d 161, 163 (1998) ).

At the administrative conference in 2001, Ashburn waived genetic testing and signed an order admitting he was Child's natural father. Based on the results of a self-conducted DNA test, Ashburn filed an action in 2014 seeking to disestablish paternity of Child. Arguably, Ashburn would be barred by res judicata from contesting paternity because the 2001 order establishing paternity is between the same parties and arises out of the same transaction or occurrence as his current claim seeking to disestablish paternity. However, the analysis does not end there because it is necessary to address whether the circumstances warrant precluding the application of res judicata and granting Ashburn relief from the 2001 order establishing paternity.

Our courts have not directly applied Rule 60(b)(5), whether brought by motion or independent action, to relieve a father from a previous order establishing paternity but have intimated that it is possible. See Mr. T , 378 S.C. at 136, 139, 662 S.E.2d at 418–19 (reversing a motion to dismiss and remanding for development of the record and finding that a previous determination of paternity is subject to attack under Rule 60(b)(5) if the appropriate circumstances are met); Evans v. Gunter , 294 S.C. 525, 526–27, 529, 366 S.E.2d 44, 45, 47 (Ct. App. 1988) (reversing an order granting a motion to dismiss by concluding the husband's allegation that his wife lied to him about his paternity and induced him to sign a waiver form could be considered extrinsic fraud under Rule 60(b) and would also "make out a case such that it would no longer be equitable" for the previous finding of paternity to have prospective application under Rule 60(b)(5) ); see also Mr. G , 320 S.C. at 316, 465 S.E.2d at 107 (Hearn, J., dissenting) (recognizing, in addition to fraud, Rule 60(b)(5) may entitle the husband to relief from a previous child support order and finding of paternity when he relied on his wife's representation of paternity).

The courts in Mr. T and Mr. G have provided some considerations pertinent to the decision of whether to grant a legal father relief from a previous order establishing paternity. The best interests of the child,4...

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