In re Kempton L.D.

Facts: While cohabitating with Appellant, Mother gave birth to Child, and shortly thereafter, Appellant acknowledged paternity in a Consent Order in Juvenile Court.  Several years later, a DNA test indicated Appellant was not Child’s biological father.  After receiving the DNA test results, Appellant waited more than two years to file a Rule 60.02 request to set aside the Consent Order, which request the trial court denied because Appellant failed to file his petition for Rule 60.02 relief “within a reasonable time.”

The Court of Appeals affirmed the trial court. Rule 60.02 states in relevant part:

On motion and upon such terms as are just, the court may relieve a party or the party’s legal representative from a final judgment, order or proceeding for the following reasons: . . . (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that a judgment should have prospective application; or (5) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time. . . .

The Court noted that Rule 60.02 relief is “an extraordinary remedy” that cannot be reversed on appeal “so long as reasonable minds can disagree as to the propriety of the decision made.”  Case law states the following factors are to be considered when determining whether an alleged father seeking to disprove paternity filed a Rule 60.02 request within a reasonable time:

(1) the circumstances under which the original paternity order was entered, (2) the timing and circumstances of the previously adjudicated father’s questioning that he was the child’s father, (3) whether the previously adjudicated father presented or attempted to present the results of genetic, DNA, or blood testing; and (4) the burdens imposed on the previously adjudicated father and on the child by the continued enforcement or by the reopening of the judgment of paternity.

The Court of Appeals distinguished this case from other cases where a prior finding of paternity was reversed after a DNA test.

By his own admission, Appellant questioned his paternity by 2003, and allegedly learned that he was not the child’s father by April 2005. However, Appellant took no action to disestablish parentage for more than four years after questioning paternity and two years after receipt of the DNA test results, until he filed his June 12, 2007 Petition. . . . Appellant’s only explanation for delay is that he “believed the issue of parentage had been and could be solely resolved by the parties without court intervention.” This assertion, though, is undercut by the fact that Appellant was a party to court proceedings to establish his paternity. “Rule 60.02 does not. . . permit a litigant to slumber on [his] claims and then belatedly attempt to relitigate issues long since laid to rest.”

While it is consistent with the legal authorities cited, the result seems unduly harsh to me in light of the numerous consequences flowing from an erroneous judicial determination of paternity.

In re Kempton L.D. (Tenn. Ct. App. May 7, 2010).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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