Brabham v. Brabham, 55281

• Decision Date: 05 February 1986
• Docket Number: No. 55281,55281
• Citation: 483 So.2d 341
• Parties: Larry Dale BRABHAM v. Felicia Reeves BRABHAM.
• Court: Mississippi Supreme Court

Page 341

483 So.2d 341

Larry Dale BRABHAM v. Felicia Reeves BRABHAM.

No. 55281.

Supreme Court of Mississippi.

Feb. 5, 1986.

T. Mack Brabham, McComb, for appellant.

John Gordon Roach, Jr., Roach, McMillan & Welch, McComb, for appellee.

Before ROY NOBLE LEE, P.J., and DAN M. LEE and PRATHER, JJ.

ROY NOBLE LEE, Presiding Justice, for the Court:

Felicia Reeves Brabham filed a petition against Larry Dale Brabham in the Chancery Court of Amite County praying the court to hold Larry Dale Brabham in contempt of court for failure to pay child support. Brabham filed an answer and cross-petition setting up possible fraud in the paternity of the children, and seeking blood tests to determine paternity. From a denial of the cross-petition, Brabham appeals here and assigns one error in the trial below.

DID THE LOWER COURT COMMIT ERROR WHEN IT DECLINED TO HEAR APPELLANT'S PROOF CONCERNING THE POSSIBILITY OF A FRAUD HAVING BEEN PERPETRATED ON THE APPELLANT AND THE COURT WITH REGARD TO ESTABLISHING THE NATURAL FATHER OF THE MINOR CHILDREN AND IN HOLDING THAT THE COURT COULD NOT ORDER REQUESTED BLOOD TESTS UNLESS AN ACTUAL FRAUD BY APPELLEE CONCERNING THE

PARENTAGE OF THE CHILDREN WAS PROVED?

Two children were born during the marriage of the Brabhams, viz, a boy, born May 5, 1978, and a girl, born March 3, 1980. The parties were divorced January 13, 1981, with appellee being awarded custody of the minor children, together with support for them.

Appellant charges in the cross-petition that appellee may have perpetrated a fraud upon appellant and the court in that petitioner had received information that the minor children might not be the natural children of appellant; that he did not deny the children are his natural children, but that, due to information he has received, substantial doubt has been raised in his mind thereasto; and that the court should require both parties to undergo blood tests for a final hearing to adjudicate the paternity of the children. Appellee answered the cross-petition, stating that the children are the natural children of appellant as determined by the court and by the personal knowledge of appellee.

In all averments of fraud, the circumstances constituting the fraud shall be stated with particularity. Fraud will not be inferred or presumed and may not be charged in general terms. The circumstances of the alleged fraud such as the time, place and contents of any false representations or conduct must be stated. Rule 9(b), Miss. Rules Civ.Proc.; McMahon v. McMahon, 247 Miss. 822, 157 So.2d 494, 495 (1963); Griffith, Mississippi Chancery Practice Sec. 589 (2d ed. 1950). Appellant's attorney frankly admitted to the lower court that appellant was not charging fraud, but the possibility of fraud, and that the only way he could establish fraud was through the blood tests.

The strong presumption of legitimacy was discussed in Foster v. Foster, 344 So.2d 460 (Miss.1977), where the Court said:

The chancellor took into consideration this Court's consistent pronouncements for more than 100 years that one of the strongest presumptions known to the law is the presumption that a child born in wedlock is a legitimate child. Herring v. Goodson, 43 Miss. 392 (1870).

The latest pronouncement by this Court on this subject was made in Dixon v. Curtis, 340 So.2d 722 (Miss.1977). Just a month ago, this Court said:

"The presumption that a child born in wedlock is a legitimate child is one of the strongest presumptions known to the law, Krohn v. Migues, 274 So.2d 654 (Miss.1973), and may be rebutted only by proof beyond a reasonable doubt that the husband is not the father. Stone v. Stone, 210 So.2d 672 (Miss.1968).

344 So.2d at 462.

Appellant made a proffer of witnesses, who would testify about rumors they had heard in the community and statements appellee had made. However, the effort appellant makes to obtain blood tests at this late hour appear to be a fishing expedition, upon which courts do not embark. The children were five and three years of age, respectively, at the time the lower court entered its decision. They are now approximately 7 1/2 years and 6 years of age. It is significant that the question of paternity was never raised until the contempt action was filed and an increase in child support was sought.

The state and public have an interest in the matter...