T.B. v. N.B. & State

• Decision Date: 15 December 2015
• Docket Number: ED102390
• Parties: T.B. III, Appellant, v. N.B. and State of Missouri, Department of Social Services, Family Support Division, Respondent.
• Court: Court of Appeal of Missouri (US)

T.B. III, Appellant,
v.
N.B. and State of Missouri, Department of Social Services, Family Support Division, Respondent.

ED102390

Missouri Court of Appeals Eastern District SOUTHERN DIVISION

December 15, 2015

Appeal from the Circuit Court of Cape Girardeau County
12CG-DR00387

Honorable Benjamin F. Lewis

Introduction

T.B. III (T.B.) appeals from the trial court's Judgment denying his petition for declaration of non-paternity. On appeal, T.B. argues that the trial court erred in finding his petition was barred by the statute of limitations, and that he is entitled to relief from the paternity judgment under Rule 74.06(d)¹ and Rule 74.06(b). We affirm.

Background

N.B. (Mother) gave birth to T.Q.B. (the Child) on August 31, 2000. T.B. signed an affidavit acknowledging paternity of the Child. In February of 2001, the State of Missouri, Department of Social Services, Family Support Division (FSD) made an administrative

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determination declaring T.B. to be the presumed or legal father of the Child and requiring T.B. to pay child support for the Child, which T.B. did not contest because he believed he was the father. FSD filed the administrative order with the circuit court.

On August 27, 2012, T.B. filed a petition seeking a determination of non-paternity. In his first amended motion, he alleged he had acknowledged paternity and consented to the administrative order because Mother told him he was the Child's father. T.B. attached to the petition a DNA test report showing that he was not the biological father of the Child. T.B. sought relief from the 2001 paternity judgment under Rule 74.06(d), asserting that Mother had perpetuated fraud against him,

At an evidentiary hearing on T.B.'s petition, T.B. testified to the following. He and Mother had been in a relationship. When she became pregnant, she told him that he was the father, their relationship was exclusive, and no one else could be the father. When FSD entered its administrative order, T.B. did not contest it because he believed he was the Child's father. However, in 2010, sometime prior to June, Mother informed T.B. he was not the biological father of the Child. Mother explained she wanted to clear her conscience. T.B. ordered a DNA paternity test on June 3, 2010, which confirmed he was not the biological father. Although Mother was subpoenaed to appear at the evidentiary hearing, she did not appear either in person or through counsel. The Child was represented at the hearing by his court-appointed guardian ad litem.

The trial court found that Mother knowingly made false statements to T.B. that he was the father of the Child with the intent to induce T.B. to consent to paternity, and that T.B. relied on those statements in consenting to paternity, causing T.B. to incur thousands of dollars in

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support liability, Thus, the trial court concluded that Mother perpetuated extrinsic fraud upon T.B.

Nevertheless, the trial court denied T.B.'s petition. The trial court concluded T.B.'s right to bring an action under Rule 74.06(d) for extrinsic fraud was foreclosed by the statutory time limit for him to contest paternity, which had run. In determining the statute of limitations, the court noted T.B. filed his petition beyond the limitations period as set forth in Section 210.854,² but questioned the application of Section 210.854's time limit in cases where the mother has deceived a man into believing he is the father of the child. Accordingly, the court applied Section 516.280, RSMo. (2000), which tolls the statute of limitations when a wrongdoer fraudulently conceals his actions and begins running the applicable statutory limitations period from the date of discovery. The court concluded, however, that because T.B. learned of the DNA test results in June of 2010, his petition filed in August of 2012 was too late.

T.B. filed a motion for new trial and to admit additional evidence, asserting that although the DNA tests were completed on June 15, 2010, they were not released until T.B. paid for them on May 26, 2012. Accordingly, he argued the statute of limitations did not begin to run under Section 516.280 until May 26, 2012, thus making his petition filed in August of 2012 timely. The trial court denied his motion. This appeal follows.

Standard of Review

We will affirm the judgment in a judge-tried case unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We review de novo a trial court's statutory interpretations. Sutton v. Mun. Court Div., Des Peres, 462 S.W.3d 446, 448 (Mo. App. E.D. 2015). Reviewing courts are "primarily concerned with the correctness of the result, not the

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route taken by the trial court to reach it; the trial court's judgment will be affirmed if it is correct on any ground supported by the record." Mo. Soybean Ass'n v. Mo. Clean Water Comm'n, 102 S.W.3d 10, 22 (Mo. banc 2003).

Discussion Point I

In his first point on appeal, T.B. argues the trial court erred in denying his petition for determination of non-paternity as out of time, because he did not receive the results of the DNA paternity test until May 26, 2012, and he properly filed his petition within two years of that date. FSD responds the last day for T.B. to have filed his petition for non-paternity under Section 210.854 was December 31, 2011, and although the trial court properly found T.B.'s petition to be out of time, it erred in using Section 516.280 to extend the statute of limitations.

In 2009, the Missouri legislature enacted Section 210.854, which "creates a right to seek to set aside an otherwise final, non-appealable judgment determining paternity." State ex rel. State Dept. of Social Servs., Family Support Div. v. Campbell, 386 S.W.3d 229, 230 (Mo. App. W.D. 2012). The statute provides that a legal father may file a petition to set aside the paternity judgment "in the interests of justice and upon grounds set forth in this section" at any time prior to December 31, 2011, or, after that date, within two years of the entry of the original judgment of paternity. Section 210.854.1. The "grounds set forth" in this section are (1) evidence that was not considered before the entry of judgment and (2) genetic test results that exclude the putative father as the biological father of the child. Section 210.854.2.

Here, T.B. acknowledged paternity of the Child in 2000 based on false assurances from Mother that he was the only possible father, and he consented to a judgment of paternity in 2001. Under Section 210.854 he was entitled to file a petition to set aside that paternity judgment only

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until December 31, 2011, which he did not do. Section 516.280, however, provides that when a person prevents the commencement of an action through any improper act, the applicable statute of limitations will be tolled until the discovery of the improper act. Applying Section 516.280, the trial court tolled the start of Section 210.854's two-year statute of limitations until the date T.B. discovered the results of the DNA test, which the court determined to be June 11, 2010. The court then concluded that his petition filed in August of 2012 was too late. On appeal, T.B. agrees with the trial court's application of Section 516.280 but challenges the trial court's finding that the date of discovery was June 11, 2010, and FSD argues that the court erred in applying Section 516.280. We agree with FSD.

"This court has uniformly held that where a statute of limitations is a special one, not included in the general chapter on limitations, the running thereof cannot be tolled because of...