Witt v. Witt
| Decision Date | 28 March 1996 |
| Citation | 929 S.W.2d 360 |
| Parties | John William WITT, Plaintiff-Appellant, v. Kimberly Denise WITT, Defendant-Appellee. |
| Court | Tennessee Court of Appeals |
W. Gerald Tidwell, Jr., Chattanooga, for Plaintiff-Appellant.
Charles W. Burson, Attorney General and Reporter and James H. Tucker, Jr., Assistant Attorney General, for Defendant-Appellee.
This is a most unusual case. The parties were married on September 26, 1987. During the marriage, one child, Dustin Levi Witt, was born. On May 11, 1989, the plaintiff filed an action for divorce. On November 15, 1989, a final decree was entered by the court dissolving the marriage on the grounds of irreconcilable differences and approving a marital dissolution agreement. The marital dissolution agreement contained, among other things, the following provision:
The parties stipulate and agree that a child was born to Kimberly Denise Witt on or about July, 1988, named Dustin Levi Witt. By her signature to this agreement, Kimberly Denise Witt hereby states that John William Witt is not the father of said child and that she was not living with John William Witt when said child was conceived. Kimberly Denise Witt hereby waives any and all child support payments which would be due and owing by John William Witt, and by this agreement and signature hereto, John William Witt acknowledges that he is not the father of said child and hereby forfeits all parental rights to said child. Based upon this agreement and the signatures of the parties, the parties stipulate and agree than Kimberly Denise Witt shall have the exclusive care, custody and control of said minor child and that John William Witt is hereby forever relieved of any parental responsibilities toward the said Dustin Levi Witt.
Apparently, after the divorce, Mrs. Witt (now Samuelson) applied for and received AFDC benefits from the State of Tennessee. On February 8, 1991, the State on relation of Kimberly Witt, filed an action in the Marion County Circuit Court to seeking to impose child support obligations on Mr. Witt and to establish paternity. The case came on for hearing before the child support referee in Marion County. The referee ordered the parties to undergo blood tests and comparisons for the purpose of establishing or disproving parentage. Pending the outcome of the blood tests, the referee ordered the plaintiff-respondent to pay child support on a temporary basis of $50.00 per week plus the clerk's commission thereon. Retroactive support was reserved for a later hearing.
The respondent, Mr. Witt, took exception to the referee's findings and requested a hearing before the Circuit Judge. A hearing was held on February 14, 1992, in the Marion County Circuit Court. The Marion County Circuit Court ordered the case transferred to the Circuit Court of Hamilton County for the purpose of allowing the Honorable Robert M. Summitt to determine if there were any grounds to set aside his previous order determining that John William Witt was not the father of the child in question.
On December 6, 1993, the State of Tennessee, as assignee of Kimberly Denise Witt Samuelson, filed a motion in the Hamilton County Circuit Court asking the court to set aside that part of its previous order approving the marital dissolution agreement insofar as it related to paternity of the child. An order was entered in the Hamilton County Circuit Court appointing a Guardian Ad Litem for the minor child.
On June 23, 1994, the court, pursuant to Rule 60, Tennessee Rules of Civil Procedure, entered an order setting aside that part of its original judgment dealing with the paternity of the minor child. Further, the court ordered blood tests to ascertain paternity.
On March 20, 1995, an agreed order was entered which, among other things, recited that based upon blood test results, the respondent, John William Witt, "concedes the issue of paternity and admits that he is the father of the child."
The respondent, John William Witt, appeals from the judgment of the trial court granting relief under Rule 60, T.R.C.P. He complains only of the court's action in setting aside a portion of the divorce decree which he claims was done without an evidentiary hearing to establish grounds under Rule 60, claiming that relief from the previous order of the court was time barred.
We do not find it necessary under the circumstances of this case to address the issue as presented by the appellant. We find and hold that the original provisions of the marital dissolution agreement relating to paternity and child support are void as against the public policy of this state and that the court may, sua sponte, set aside a void order or a void agreement incorporated within an order or decree.
Decrees relating to child custody and support are generally viewed as conclusive on the facts in existence at the time the decision was entered. See Nichols v. Nichols, 792 S.W.2d 713, 715-16 (Tenn.1990). However, the entry of a decree does not necessarily preclude the later consideration of material facts that were not fully developed in the earlier proceeding because of concealment, fraud, duress, or other violations of public policy by one of the parties. Rowles v. Reynolds, 29 Tenn.App. 224, 196 S.W.2d 76, 79 (1946); 4 Family Law Practice (MB) § 52.02(1)(h) (1989). See also Faircloth v. Locke, an unreported opinion of this court (1991). We are prepared to go one step further and hold that a violation of the public policy of this state by both parties justifies the court in voiding the offending parts of the decree, where, on its face, the decree shows a violation of the public policy of this state. An evidentiary hearing, under such circumstances, is not necessary. No amount of evidence can transform a void order, agreement or decree into one possessing any legal efficacy.
It seems abundantly clear that since time immemorial it has been the public policy of this state that a parent is under a duty to support his children. Indeed, it has been declared a criminal offense by the legislature for a parent to knowingly fail to support his children. Further evidence of the public policy of the State as established by our legislature may be found...
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Lichtenwalter v. Lichtenwalter, No. M2003-03115-COA-R3-CV (TN 1/30/2006)
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