Court of Appeals (surprisingly) authorizes reversal of determination of paternity based on father’s fraud claim

Posted Tuesday, August 8th, 2017 by Gregory Forman
Filed under Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Of Interest to General Public, Paternity, South Carolina Appellate Decisions, South Carolina Specific

Ever since DNA testing became sufficiently accurate to conclusively exclude paternity, there’s been a tension between the goals of establishing paternity with finality and with accuracy.  Previous South Carolina case law has indicated a possibility of overturning prior but inaccurate determinations of paternity.  The August 2, 2017 Court of Appeals opinion in Ashburn v. Rogers, 420 S.C. 411, 803 S.E.2d 469 (Ct. App. 2017), finally does it.

In Ashburn, Father (Ashburn) voluntarily acknowledged paternity of Child in 2001.  Ashburn paid his child support as ordered but never developed a parental relationship with child.  In 2012 Mother (Rogers) sought a child support increase.  Ashburn requested visitation and, during the visit, obtained a drug-store genetic test of him and the child that excluded him as the father.

Ashburn then filed an independent action to disestablish paternity.  That action was tried in June 2014. At trial, Rogers, for the first time, acknowledged that she might have been intimate with another man during the time period the child was conceived.  The family court, finding no extrinsic fraud by Rogers, denied Ashburn’s request.  Ashburn then filed a motion to reconsider, citing Rule 60(b)(5), SCRCP, and arguing that “it [was] no longer equitable that the judgment should have prospective application.” The family court denied the motion for reconsideration. Ashburn then appealed.

The Court of Appeals first noted two prior cases,  Mr. T v. Ms. T, 378 S.C. 127, 662 S.E.2d 413 (Ct. App. 2008) and Judge (now Justice) Hearn’s dissent in Mr. G v. Mrs. G, 320 S.C. 305, 465 S.E.2d 101 (Ct. App. 1995), that accepted the possibility of challenging final adjudications of paternity if extrinsic fraud could be shown.  However neither of these cases actually overturned a prior adjudication of paternity.

In reversing the family court, the Court of Appeals first found that the child’s interest in receiving financial support could not be the primary basis to support a continued inaccurate determination of paternity:

[N]o interest of Child other than financial is served by upholding Ashburn’s paternity. This is especially true given the statements by the parties that a parent-child relationship will not develop between Ashburn and Child. We are not convinced the financial interest is the determining factor; otherwise, upholding paternity would always be in the child’s best interests regardless of the relationship between the child and putative father.

The Court of Appeals further disagreed with the family court’s finding that reversing the determination of paternity would be emotionally damaging to the child:

We find the family court incorrectly ascertained the emotional consequences to Child in upholding the previous order of paternity. The evidence in the record shows there is no significant parent-child relationship. Ashburn did not attend Child’s birth and did not visit Child until she was seven months old, and that visit was not voluntary but rather a requirement of the Marine Corps. Thereafter, Ashburn, Mother, and Child lost contact. Ashburn was subsequently stationed in Japan, Hawaii, Iowa, and North Carolina. Ashburn had no contact with Child until the visit in Charleston when Child was twelve years old. Despite Child considering Ashburn to be her father, there is no evidence in the record showing Child attempted to establish a relationship with Ashburn. Because there is no significant parent-child relationship, there is a low risk of emotional harm in severing the relationship.

The Court of Appeals appears to have granted Ashburn’s request, in part, because Rogers deliberately hid the possibility of alternative paternity from Ashburn.  Analyzing Ashburn’s request as meeting the criteria of a Rule 60(b)(5), SCRCP, motion, the Court of Appeals sidestepped the extrinsic versus intrinsic fraud distinction that a Rule 60(b)(3) motion would entail.  Prior case law on this issue had inconclusively grappled with whether a mother’s deceitful representation of paternity was “intrinsic fraud” (essentially fraud in the facts) or “extrinsic fraud” (fraud in the litigation procedure).  Under current South Carolina case law, one can obtain relief from judgments based on extrinsic fraud but not based on intrinsic fraud and paternity fraud has elements of both (my personal belief if that it is intrinsic fraud but I also believe South Carolina should abolish that distinction).

Ashburn is clearly an important opinion, as South Carolina’s appellate courts have finally vacated a paternity determination based on paternity fraud.  While this possibility existed for decades prior to Ashburn, it remained a mere possibility.  Ashburn further clarifies that the financial considerations of receiving child support should not be a strong factor in such cases but the child’s level of bonding with the legal-but-not-biological father should be.  Beyond that, Ashburn provides little guidance on how often paternity fraud challenges will succeed.

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