Griffith v. Pell, 2002-CA-00532-COA.

• Citation: 881 So.2d 227
• Decision Date: 02 September 2003
• Docket Number: No. 2002-CA-00532-COA.,2002-CA-00532-COA.
• Parties: Joseph GRIFFITH, Appellant, v. Sue Ann PELL, Next Friend And Parent of Stephanie Ann Pell, Minor, Appellee.
• Court: Mississippi Court of Appeals

881 So.2d 227

Joseph GRIFFITH, Appellant, v. Sue Ann PELL, Next Friend And Parent of Stephanie Ann Pell, Minor, Appellee.

No. 2002-CA-00532-COA.

Court of Appeals of Mississippi.

September 2, 2003.

Rehearing Denied October 28, 2003.

Patricia Peterson Smith, for Appellant.

Mark W. Prewitt, Vicksburg, for Appellee.

Before SOUTHWICK, P.J., BRIDGES, and CHANDLER, JJ.

SOUTHWICK, P.J., for the court:

¶ 1. This is a paternity action. The mother of the subject child brought the suit against someone other than the man who several years earlier she had claimed was the father. That first-identified father married the mother before the child was a year old. He had no reason to doubt that the daughter was his own until the child was age four. The spouses were by then involved in a divorce. The chancellor in the present paternity suit, relying solely on the blood test, ordered the newly-designated biological father to pay child support. Several different proceedings have been held based on these facts, including this paternity action, the divorce, and a declaratory judgment motion brought by the husband and long-supposed father, the latter seeking the rights of a father. In some pleadings, but not in others, the newly-identified biological father disclaimed any desire to support this child to whom he was apparently a stranger. Instead, he endorsed the husband's desires for the rights of a father.

¶ 2. These facts raise important questions of the rights of men who have for a variety of reasons, including the deception of the mother, established a substantial relationship with a child. In this paternity suit, the chancellor refused to consider any facts other than those addressing biology. Paternity actions are about biology. In technologically simpler times, biological proof was more ambiguous. Instead what was often decisive was the presumption that a child born to a married woman was fathered by her husband. That presumption and corollaries of it furthered important public policy interests that are well-reflected in the facts of this case. Those policies recognized that strong evidence to discredit the presumption might exist but still would not control. The presumption and its policies have largely been overtaken by technology, however. In the particulars of this proceeding to establish paternity, the chancellor need not have considered other issues. We affirm.

¶ 3. We are not holding, though, that the non-biological father is without remedy when his interest in this child far exceeds that of the man who only contributed to the child's DNA. The husband was at least the stepfather of the child once biological parentage was determined. There are custodial and other rights that can be asserted in divorce proceedings by a stepparent. A divorce is underway.

¶ 4. The dissent urges the joinder of this appeal to the separate appeal from the couple's divorce that has not yet been briefed. No motion to consolidate the actions at the trial level appears in the record of this case. The appeal in the divorce action has not been deflected to this court, so we do not have authority to order consolidation. We examine what is before us. From a finding that identifies the biological father flows an obligation to pay support. We find that factual paternity is uncontested. There is no need to maintain the life of this appeal when there is nothing in the paternity resolution that is in error. The dissent's concerns may properly be addressed in the forum of the divorce suit. With respect, there is no purpose in forcing those issues into this appeal from a judgment that established beyond question the identification of the biological father. Since there is no question, the paternity case should end.

FACTS

¶ 5. In 1995, Sue Ann King became pregnant and told Robert "Sonny" Pell he was the child's father. The couple began living together. Stephanie Pell was born in November 1995. About a year later, Stephanie's ostensible parents married. Sonny Pell commenced divorce proceedings about eighteen months thereafter, claiming and eventually proving his wife's adultery.

¶ 6. The present appeal arises from one of several proceedings growing out of the parties' marriage and the wife's children. Five years after telling Pell that she was pregnant with their child, Mrs. Pell brought a paternity action against Joseph Griffith, claiming he was actually the father of the child. Griffith is the appellant here, as Pell is not a party on this appeal.

Proceeding No.1 — Divorce.

¶ 7. Sonny Pell's petition for divorce was granted in December 2002. Pell has appealed portions of the divorce order. Pell v. Pell, 2003-CA-00202. We have obtained a copy of the order from the appellate record on the divorce for background and clarification purposes.

¶ 8. Pell filed for divorce in July 1998, on the ground of adultery. He sought custody of Stephanie, who he had always believed to be his daughter. An order for temporary joint physical and legal custody was entered by the chancellor a few weeks later. In her first answer, Mrs. Pell stated that her husband was Stephanie's father. On June 4, 1999, Mrs. Pell filed an amended answer, claiming that he was not the biological father. The chancellor ordered genetic testing. The tests definitively excluded Pell as Stephanie's biological father.

¶ 9. In the divorce order, the chancellor found that Mr. Pell had no legal standing to seek custody or visitation and ordered all allegations concerning custody stricken from the pleadings. No provisions for visitation between Mr. Pell and Stephanie were provided for in the divorce order.

Proceeding No.2 — Paternity.

¶ 10. In February 2000, Mrs. Pell filed suit against Joseph Griffith, Sonny Pell and the Mississippi Board of Health to have Griffith declared Stephanie's father. Her then still-husband was included as a necessary party although she denied that he had any legal rights to the child.

¶ 11. Neither individual defendant answered the complaint. Mrs. Pell was granted a default judgment against her husband. Griffith was ordered to undergo genetic testing, which established him as Stephanie's father. An agreed order of filiation was entered in July 2000, which declared Griffith to be the biological father and ordered him to pay child support. The order stated that this was partial relief. All other matters would be later addressed by the court. Griffith, Mrs. Pell, and counsel for Mr. Pell signed the order, the last signing as to form only.

Proceeding No.3 — Declaratory judgment in paternity suit

¶ 12. In January 2002, Griffith and Pell filed in the paternity suit a motion for declaratory judgment, asking that Pell be declared Stephanie's legal father on the basis that Pell's custody or continued visitation was in the child's best interest. He argued a doctrine called "paternity estoppel," which has been adopted in some jurisdictions. The doctrine holds that when a mother misleads a man into believing he has fathered her child, and the man relies upon this misrepresentation, the mother will be estopped from later denying the man's paternity.

¶ 13. Griffith submitted with this motion an affidavit that he did not know the child, did not wish to initiate a relationship with her, and felt her interests would better be served by permitting Pell to adopt Stephanie. He also submitted a document in which he agreed to relinquish all parental rights in favor of Sonny Pell. Mrs. Pell filed a motion to dismiss on the basis that this was a collateral attack upon the order of filiation.

¶ 14. A hearing was held in February 2002. It was brief. Griffith was called as an adverse witness by Mrs. Pell and questioned about his financial and employment status. Griffith's counsel asked one question, which was whether he knew the woman at the other table. Mrs. Pell objected, arguing Griffith was attempting to relitigate the issue of paternity. Griffith denied that purpose, stating he was going into the issues not resolved by the filiation order, specifically the question of whether having Mr. Pell declared the child's legal father would be in the child's best interest. The chancellor stated that issue had been resolved by the filiation order. The only matter to decide was Griffith's child support obligation and the visitation to be granted him. Griffith's counsel continued to argue primarily about equitable estoppel. The chancellor called for a bench conference, which was held off the record. When the record resumed, Griffith was recalled by his attorney and the same ground on finances and employment was again covered.

¶ 15. The written order following the hearing denied the motion for declaratory judgment, ordered Griffith to pay fourteen percent of his income in child support, and granted Griffith "reasonable rights" of visitation. It is this order which is the subject of appeal.

DISCUSSION

1. The paternity hearing

¶ 16. Griffith alleges the chancellor erred in refusing to hear testimony on any matter but child support and visitation, particularly those matters raised in the declaratory judgment motion. It is also alleged that the wrong legal standard was applied when the child's best interest was not weighed. The chancellor found the declaratory judgment motion raised the issues already settled by the order of filiation. Any testimony on those issues was prohibited by res judicata and collateral estoppel. The only matter left outstanding to determine was Griffith's obligations to the child.

¶ 17. The procedures for establishing paternity of a child are set out by statute. The Uniform Law on Paternity was enacted in Mississippi to allow for establishment of paternity of children and to provide for their support. R.E. v. C.E.W., 752 So.2d 1019, 1023-24 (Miss.1999). Griffith argues that an action in paternity is of wider scope than merely assigning fatherhood to the contributor of DNA and then ordering child support.

¶ 18. Current case law provides that paternity suits have...