State ex rel. Ivory v. Lewis

• Court: Tennessee Court of Appeals
• Writing for the Court: NEARN
• Citation: State ex rel. Ivory v. Lewis, 660 S.W.2d 797 (Tenn. App. 1983)
• Decision Date: 21 September 1983
• Parties: STATE of Tennessee, ex rel. Martha M. IVORY, Plaintiff-Appellee, v. Andrew LEWIS, Defendant-Appellant. 660 S.W.2d 797

Page 797

660 S.W.2d 797

STATE of Tennessee, ex rel. Martha M. IVORY, Plaintiff-Appellee, v. Andrew LEWIS, Defendant-Appellant.

660 S.W.2d 797

Court of Appeals of Tennessee Western Section.

Sept. 21, 1983.

Rehearing Denied Oct. 12, 1983.

Application for Permission to Appeal

Denied by Supreme

Court

Nov. 28, 1983.

John C. Nowell, Jr., Trenton, for defendant-appellant.

Richard L. Colbert, Nashville, for plaintiff-appellee.

NEARN, Presiding Judge, Western Section.

This appeal is from a judgment for child support entered in proceedings had under Chapter 9 of Title 36 of the public acts, commonly referred to as the Uniform Reciprocal Support Act.

In April 1979, Martha Ivory filed a complaint in Elkhart, Indiana, under a Reciprocal Support Act of that state. The complaint alleged that Andrew Lewis, a resident of the State of Tennessee was the father of two of her children--Kimberly Ivory born October 18, 1973, and Marlon Ivory born November 11, 1975. The sworn complaint also alleged "parties have never been married. Respondent was adjudicated the father of both children on February 9, 1979, in the Elkhart Superior Court No. 2, IV-d AFDC case."

The Elkhart Court before which the Reciprocal Support actions were filed made no determination of the truthfulness of the facts alleged nor determined any duty of support in the order transferring the matter to this state. That order simply provides that the complaint sets forth facts from which it may be determined that the defendant owes a duty of support. This was proper procedure. See T.C.A. Sec. 36-913.

After service was had upon the defendant in this state by process issued out of the Circuit Court of Gibson County, defendant answered. In that answer defendant denied he was the father of the two named children, denied having received service or notification of any proceeding in any Court in Indiana and prayed that the "cause be reopened under the defendant's plea of not guilty" and that the parties and children submit to blood grouping tests.

At this point we deem it proper to set out the nature of these proceedings and the procedure thereunder as it is evident that there is some misunderstanding by counsel. First, this is not a "bastardy" proceeding as indicated by counsel for defendant in his brief. It is a proceeding under the Reciprocal Support Act. Second, there is no case to "reopen" as at the time the answer was filed nothing was "closed" insofar as this petition was concerned. This is not a proceeding under T.C.A. Sec. 36-929 as there is no foreign judgment ordering defendant to pay support. The Uniform Reciprocal Support Act in this instance provides for a hearing on the petition in the state where the defendant is found. No hearing as such is held in the initiating state. The Judge of the initiating state simply examines the petition and determines that it is not subject to demurrer, i.e., facially, it states a cause of action. Then it is transferred to the responding state for a trial on the issues presented. The petition arrives in this state with "a presumption of the truthfulness of the facts alleged therein and prima facie evidence of the liability of the respondent and shall shift the burden of proof to such respondent." T.C.A. Sec. 36-919. In short, it is an ordinary trial in this state as if the petition had been filed in this state except that the burden is on the defendant to disprove the allegations. ¹

From the proof adduced in this case the Trial Judge found that the defendant did not owe a duty of support for the child Marlon Ivory, but did owe a duty of support for the child Kimberly Ivory and fixed that duty of support at $15.00 per week.

Counsel for appellant raises issues three in number. Collectively, they raise the single issue of whether the evidence preponderates against the finding of the Trial Judge that the defendant failed to disprove the allegations of the petition regarding the duty of support owed Kimberly Ivory. The petitioner, acting through the Tennessee Department of Human Services and represented by the State Attorney General, makes no complaint regarding the finding of the Trial Court that there was no duty of support as to the child Marlon.

The defendant adduced unrebutted proof that the blood tests that were given to the parties and the children showed that it was impossible for him to be the father of Marlon Ivory but that he could not be excluded as the father of Kimberly Ivory and that plausibility of paternity as to Kimberly on a Plausibility of Paternity scale was 95.4%. However, medical proof was introduced to show that in 1979 defendant was examined and a semen analysis taken which examination showed a history of an undescended testicle on the right side for which he underwent partial orchiopexy and herniorrhaphy at age 20 and physical examination showed that...