Facts: Mother gave birth to Child in 2009.

The following year, the State of Tennessee, acting on Mother’s behalf, filed a petition against Alleged Father to establish paternity. After finding that Alleged Father failed to appear at the hearing despite being served with process, the trial court entered a default judgment establishing paternity and setting Alleged Father’s ongoing and retroactive child support obligation.

A year later, after his wages were garnished to satisfy the child support order, Alleged Father appeared at a hearing and requested DNA testing. After the paternity testing showed Alleged Father was not Child’s biological parent, Alleged Father moved to set aside the default judgment and child support order. He further alleged that Mother “knew or should have known that [Alleged Father] was not the biological father as she was not intimate with him at a time that would be consistent with the birth of the child and its conception.”

Despite Alleged Father’s protestations to the contrary, the trial court found Alleged Father had willfully evaded personal service of process and knew to appear at the hearing where the default judgment occurred, thereby establishing actual or constructive notice. Alleged Father’s motion to set aside was untimely inasmuch as it was filed more than 30 days after the entry of the default judgment. The trial court held it could not retroactively forgive the child support arrears and that statutory interest had to be imposed. Accordingly, the trial court entered a judgment against Alleged Father for $23,472.02.The trial court amended its previous order, however, to reflect that Alleged Father “is not the biological father of [Child] and, therefore, [Alleged Father] will not have any future child support obligations.”

Alleged Father appealed.

On Appeal: The Court of Appealed affirmed the trial court.

Regarding Alleged Father’s claim that he was never served with process for the underlying petition to establish paternity, the Court noted that Alleged Father, appearing pro se both at the trial court level and on appeal, failed to provide a transcript or statement of the evidence from which the Court could determine whether the evidence preponderates for or against the trial court’s findings. In the absence of the trial court record, the Court must presume that the trial court’s findings of fact are supported by the evidence. Thus, the Court must presume that Alleged Father willfully evaded service of process and knew to appear at the hearing where the default judgment occurred. The Court did so.

Regarding the retroactive modification of child support, Tennessee Code Annotated § 36-5-101(f)(1) provides that a judgment 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. . . .” This provision is required by federal law to ensure that children receive adequate parental support. When the provision was enacted, equitable defenses were specifically disallowed because, according to the Tennessee Supreme Court, it would create “a situation where exceptions could easily swallow up the rule.”

Pursuant to Tennessee Code Annotated § 36-5-101(f)(1), Tennessee courts have consistently upheld the prohibition against retroactive modification of child support in the face of equitable defenses.

After reviewing some analogous cases, the Court concluded:

In light of [] the statutory prohibition against retroactive modification of child support, we must affirm the trial court’s denial of Rule 60 relief because such relief would result in the retroactive modification of child support. We find this result harsh, but the statutes and case law require this result.

Although [Alleged Father] cannot receive retroactive modification of child support, the trial court did grant Rule 60 relief as to any obligation to pay child support prospectively. Thus, [Alleged Father] is relieved from any child support obligation as of the date his motion to set aside the child support order was filed….

Accordingly, the trial court’s judgment was affirmed.

K.O.’s Comment: Arguably, Alleged Father could bring a “paternity fraud” action against Mother to recover his pecuniary loss pursuant to Hodge v. Craig — that is, if the one-year statute of limitations has not run (I believe it likely has). Alleged Father really could have benefited from having a knowledgeable family law attorney (and a court reporter) at the trial court level.

Purdy v. Smith (Tennessee Court of Appeals, Middle Section, May 23, 2014).

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