Posted by: K.O. Herston | October 25, 2012

“Paternity Fraud” in Tennessee Divorce: Hodge v. Craig

Facts:  While the parties were dating, Mother became pregnant and told Mr. Craig he was the father. The parties married, and Child was born. Mr. Craig was listed as the father on Child’s birth certificate. He then decided he did not want to have any more children and had a vasectomy. After the parties divorced, Mr. Craig eventually became the primary residential parent of Child. Mr. Craig started off paying child support to Mother; later, this was modified so Mother paid child support to Mr. Craig. Years later, because of Child’s evolving appearance, Mr. Craig started to question Child’s paternity. A DNA test revealed that Mr. Craig is not the biological father of Child. Mother filed a petition to declare her the sole residential parent of Child and terminate her child support obligation. Mr. Craig counterclaimed for damages from “paternity fraud.” The trial court found Mother liable and awarded Mr. Craig damages of over $25,000 for child support paid to Mother and $100,000 for emotional distress. Mother appealed and the Court of Appeals reversed the trial court. Father then appealed to the Tennessee Supreme Court.

On Appeal: The Tennessee Supreme Court unanimously reversed the Court of Appeals.

The case presents two issues: (1) Does Tennessee law recognize an action filed by the former spouse of a child’s mother seeking to recover damages caused by the mother’s misrepresentations regarding the identity of her child’s biological father? (2) Does the trial court’s judgment constitute an impermissible retroactive modification of child support?

“Paternity Fraud.” After thoroughly examining the constitutional, statutory, and common law precedent “pertaining to families and domestic relations,” the Court concludes:

Misrepresentations to a prospective spouse that he is an unborn child’s biological father “[go] to the essence of the marital relationship.”Accordingly, and in light of the historically broad reach of common-law actions for intentional misrepresentation, we have determined that the public policy of this state, reflected in the Constitution of Tennessee and the statutes enacted by the General Assembly, does not prevent the former spouse of a child’s mother from pursuing common-law damage claims against the child’s mother based on her intentional misrepresentations regarding the identity of the child’s biological father.

After examining the elements of a cause of action for intentional misrepresentation and the measure of damages therefor, the Court found:

When [Mother] discovered she was pregnant, she represented to Mr. Craig that he was the child’s biological father and that no one else could be. This representation was false when it was made, and [Mother] made this representation recklessly without knowing whether it was true or false. . . . Mr. Craig sustained monetary damages, not the least of which was his court-ordered obligation to pay child support and his payments for the child’s medical expenses and insurance premiums following his divorce from [Mother].

While a claim for intentional misrepresentation is permitted, the Court made it clear that a claim for negligent misrepresentation is not.

For over two decades, we have limited the application of negligent misrepresentation claims under the Restatement (Second) of Torts § 552 to representations made in connection with a business or commercial transaction. Even though modern marriage has been characterized by some as inherently contractual, communications between a couple regarding the parentage of a child do not involve a commercial or business transaction. . . .

[W]e decline to hold that a mother’s former husband may bring a negligent misrepresentation action against his former spouse based upon her negligent misrepresentations that he is the child’s biological father.

Retroactive Modification of Child Support. Tennessee Code Annotated § 36-5-101(f)(1) provides that an order for child support “shall not be subject to modification as to any time period or any amounts due prior to the date that an action for modification is filed . . . .”

The Court held that the trial court’s award of damages to Mr. Craig was not a retroactive modification of a child support obligation because it “did not have the effect of reducing or extinguishing any child support arrearage owed by Mr. Craig,” there being no such arrearage.

Second, the judgment did not purport to change or modify Mr. Craig’s child support obligations.

At the time the [] judgment was entered, Mr. Craig had no legally enforceable obligation to pay [Mother] child support for [Child's] benefit. As the victim of [Mother's] intentional misrepresentations regarding [Child's] paternity, Mr. Craig was entitled to recover the pecuniary loss he suffered as a result of his justifiable reliance on [Mother's] representations that he was [Child's] biological father and that no one else could be.

Accordingly, the Court of Appeals was reversed.

K.O.’s Comment: Mr. Craig did not appeal the Court of Appeal’s reversal of the $100,000 award for emotional distress so that portion of the intermediate court’s decision will stand. It’s also worth noting that the Court expressly limited the scope of the decision to the precise facts presenting, writing:

Our decision in this case is limited to the factual circumstances before us — a lawsuit filed by the former spouse of a child’s biological mother seeking damages for intentional misrepresentation of the child’s parentage. This case does not require us to address other circumstances, including similar disputes between persons who were never married or persons who are separated but not divorced. Determining the appropriateness of actions for intentional misrepresentation of parentage in these and other circumstances can be made only in the appropriate case.

Hodge v. Craig (Tennessee Supreme Court, October 1, 2012).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.


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