                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                   ASSIGNED ON BRIEFS FEBRUARY 23, 2011

  STATE OF TENNESSEE, EX REL NATALIE L. DANCY v. PAUL L. KING

              Direct Appeal from the Juvenile Court for Shelby County
                       No. V5947     Curtis S. Person, Judge


                  No. W2010-00934-COA-R3-JV - Filed April 5, 2011


The petitioner executed a voluntary acknowledgment of paternity shortly after the birth of
a child. Several years later, after he was ordered to pay child support, he filed a petition
seeking to rescind the voluntary acknowledgment of paternity, or alternatively seeking court-
approved DNA testing, pursuant to Tennessee Code Annotated section 24-7-113. The
juvenile court denied his petition upon finding that he failed to prove fraud in the
procurement of the voluntary acknowledgment of paternity. Finding that the evidence
preponderates against the trial court's finding concerning fraudulent procurement, we reverse
and remand for further proceedings to include parentage tests.


 Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Reversed
                                  and Remanded

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and H OLLY M. K IRBY, J., joined.

Paul L. King, Memphis, Tennessee, pro se

Robert E. Cooper, Jr., Attorney General and Reporter, Joe Whalen, Associate Solicitor
General, Warren Jasper, Senior Counsel, Nashville, Tennessee, for the appellee, State of
Tennessee, ex rel Natalie L. Dancy
                                               OPINION

                               I. F ACTS & P ROCEDURAL H ISTORY

       On December 31, 2008, the State of Tennessee filed a petition for child support on
behalf of Natalie L. Dancy (“Mother”), alleging that Paul Lewis King (“Mr. King”) had a
duty to support Ms. Dancy’s child (“Son”), who was born in 2003.1 Following a hearing, a
juvenile court referee issued findings and recommendations to the juvenile court. The referee
found that Mr. King should pay $436 per month in child support, beginning May 1, 2009, in
addition to $32,264 in retroactive child support, owed since the date of Son’s birth, at the rate
of $35 per month. The juvenile court judge adopted and confirmed the referee’s findings as
an order of the juvenile court.

        Shortly thereafter, on July 14, 2009, Mr. King filed a sworn petition to disestablish
paternity, requesting that the court rescind the voluntary acknowledgment of paternity
(“VAP”) executed by Mr. King when Son was born, or in the alternative, order court-
approved DNA testing, pursuant to Tennessee Code Annotated section 24-7-113. The
petition stated that Mr. King had signed the VAP because Mother told him that he was the
father of Son. The petition further stated that Mother had “knowingly lied” when she made
said statement, and that Mr. King subsequently discovered that Mother was having a sexual
relationship with his roommate. Mr. King’s petition stated that he had been denied visitation
with Son. Mr. King attached to his petition a copy of an independently-obtained DNA test
that was performed on or about June 16, 2009, which established a zero percent probability
that Mr. King was Son’s father. He requested that the court rescind the VAP and disestablish
his paternity, or in the alternative, order further DNA testing. The petition stated that “[t]he
requested relief will not affect the interests of the child, the state, or any Title IV-D agency,
as the biological father may be ordered to pay child support.”

        The State filed a response, arguing that Mr. King’s allegations did not rise to the level
of fraud in the procurement such that he would be entitled to relief pursuant to Tennessee
Code Annotated section 24-7-113. The State also filed a motion to exclude the private DNA
test obtained by Mr. King.

        Following a hearing on September 30, 2009, a juvenile court magistrate recommended
that the State’s motion to exclude the DNA test be sustained and that Mr. King’s petition to
disestablish paternity be denied, as he “failed to prove fraud in the procurement of the


        1
            According to the petition, Ms. Dancy had applied for child support enforcement assistance
pursuant to Title IV-D of the Social Security Act. However, it appears that she did not appear at any of the
juvenile court proceedings discussed herein.

                                                    -2-
Voluntary Acknowledgment of Paternity.” The magistrate’s findings were confirmed and
adopted by the juvenile court judge, but apparently, Mr. King subsequently requested a
rehearing before the juvenile court judge.

        At the hearing before the juvenile court judge, Mr. King’s attorney conceded that the
private DNA test was inadmissible. Counsel for Mr. King also conceded that Mr. King filed
the petition to set aside the VAP more than five years after it was signed. As such, Mr. King
was required to demonstrate “fraud in the procurement of the acknowledgment by the mother
of the child” in order to challenge the VAP. See Tenn. Code Ann. § 24-7-113(e)(2). Mr.
King’s counsel requested that the court order court-approved DNA testing and/or grant Mr.
King “prospective relief under Rule 60.” 2

       Mr. King was the only witness to testify, as Mother failed to appear at the hearing
despite the issuance of a subpoena. Mr. King testified that he and Mother had dated for
about two years before Son was born, and that they dated “on and off” after Son’s birth. Mr.
King said that he signed the VAP when Son was born with the belief that he was Son’s father
because Mother told him that she had not engaged in a sexual relationship with any other
person and that he was the father. He testified that he stopped dating Mother when Son was
two years old because he discovered that Mother was having a sexual relationship with his
roommate. Mr. King testified that he had been living with his roommate for several years,
and that he asked Mother how long she had been involved in the relationship, but Mother
refused to talk about it. Mr. King said that he then questioned Mother about his paternity of
Son, and Mother “said that I was still the father.”

       Nevertheless, Mr. King testified that the incident involving Mother and his roommate
caused him to suspect that he was not Son’s father. Mr. King testified that shortly after the
incident, he came to juvenile court and asked about obtaining a DNA test, and “they told me
I couldn’t unless I put myself on child support.” Mr. King testified that he decided not to
proceed with the paternity testing after being told that a formal child support order would be
required. He said, “I was doing my part, you know, I was taking care of him so I figure[d]
I shouldn’t have to be put on child support.”

       Mr. King testified that he had provided support for Son voluntarily for the first two
years of his life by giving money to Mother. However, he said that Mother stopped allowing
him to see Son after he discovered her relationship with his roommate. He explained that he
then stopped providing financial support because Mother refused his requests to see Son and


        2
           Rule 60.02 provides, in pertinent 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) . . . it is no longer equitable that a judgment should have prospective application.”

                                                      -3-
he “didn’t know where she was.” At the hearing, Mr. King testified that he no longer has any
relationship with Son, who was nearly seven years old at the time of the hearing.

       Mr. King conceded that he knew he had signed a VAP when Son was born. When
asked whether he was content being named as Son’s father during the years since the incident
with Mother, until the State filed the petition for child support, Mr. King replied, “Not really.
I didn’t know what to do really.”

       At the conclusion of the hearing, the juvenile court judge denied Mr. King’s petition
to disestablish paternity and reconfirmed the findings and recommendations of the
magistrate. Mr. King then filed a motion to alter or amend, or for a new trial, along with his
own affidavit, in which he basically restated his testimony from the hearing. The motion was
denied on March 18, 2010, and Mr. King timely filed a notice of appeal.

                                   II.     I SSUES P RESENTED

        On appeal, Mr. King argues that the trial court erred in denying his petition to rescind
the VAP and/or for further DNA testing, and he contends that the court erred in failing to set
aside the child support order. For the following reasons, we affirm in part and we reverse
in part, and we remand for further proceedings consistent with this opinion.

                                         III.   D ISCUSSION

        We begin by addressing Mr. King’s contention on appeal that the juvenile court
should have set aside the child support order and relieved him of all child support
obligations, “past or future.” Tennessee Code Annotated section 36-5-101(f)(1) provides,
in relevant part:

              Any order for child support shall be a judgment entitled to be enforced
       as any other judgment of a court of this state, and shall be entitled to full faith
       and credit in this state and in any other state. Such judgment 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 and notice of the action has been
       mailed to the last known address of the opposing parties.

(emphasis added). In State ex rel. Hickman v. Dodd, No. W2008-00534-COA-R3-CV, 2008
WL 4963508, at *1 (Tenn. Ct. App. Nov. 21, 2008), a man sought rescission of a VAP after
discovering that he was not the child’s biological father, and he also sought relief from both
his retroactive and future child support obligations. We explained that “a trial court may not
retroactively forgive a child support arrearage, but may only modify child support obligations

                                                 -4-
back to the date that a petition or motion for modification is filed and notice is provided to
the non-moving party.” Id. at *2. In other words, we stated, the trial court lacks the authority
to retroactively modify the child support order and forgive the arrearage. Id. Thus, we
similarly conclude that Mr. King is not entitled to retroactive relief from his child support
obligation and arrearage. We may only consider whether he is entitled to relief from his
support obligation since the date of his petition, July 14, 2009, and going forward.3

       Again, in the lower court, Mr. King sought to challenge the VAP pursuant to
Tennessee Code Annotated section 24-7-113, and he also sought prospective relief from the
child support order pursuant to Tennessee Rule of Civil Procedure 60. First, we will consider
his challenge to the VAP.

       Tennessee Code Annotated section 24-7-113 “establishes a simplified procedure for
unmarried fathers to legally establish their paternity without the intervention of the court, by
simply executing a voluntary acknowledgment of paternity.” In re C.A.F., 114 S.W.3d 524,
528 (Tenn. Ct. App. 2003). The mother must also sign the VAP, certifying that she is the
mother and that the other signatory is the father. Id. A VAP establishes a “legal
relationship” between the named father and the child, In re Adoption of W.J.P., No. E2007-
01043-COA-R3-PT, 2008 WL 246015, at *7 (Tenn. Ct. App. Jan. 30, 2008), and it
constitutes “a basis for establishing a support order without requiring any further proceedings
to establish paternity.” Tenn. Code Ann. § 36-5-101(a)(6).

       Tennessee Code Annotated section 24-7-113 also sets out the manner in which a party
must challenge a VAP, including a statute of limitations providing time limits during which
a VAP can be challenged. State ex rel. Robinson v. Glenn, No. W2006-00557-COA-R3-JV,
2007 WL 1227377, at *4 (Tenn. Ct. App. Apr. 26, 2007); State ex rel. Parks v. Parks, No.
W2005-00957-COA-R3-JV, 2006 WL 2032560, at *8 (Tenn. Ct. App. Jan. 19, 2006).
Subsection (c) of the statute allows the VAP to be rescinded within sixty days of its
completion under certain circumstances. Tenn. Code Ann. § 24-7-113(c). Alternatively, the
VAP may be challenged within five years of its execution on the basis of “fraud, whether
extrinsic or intrinsic, duress, or material mistake of fact.” Tenn. Code Ann. § 24-7-113(e)(1).
Mr. King concedes that his challenge to the VAP came more than five years after its
execution. However, the statute further provides that a challenge to a VAP “shall not be
barred by the five (5) year statute of limitations where fraud in the procurement of the
acknowledgment by the mother of the child is alleged and where the requested relief will not


        3
           We also note that Mr. King only requested prospective relief under Rule 60. “Because [he] rests
his claim upon Rule 60.02(4), even if we do determine that relief should have been granted to him, he will
still be bound by the [challenged order] up until the time of filing of his petition for relief[.]” State ex rel.
Taylor v. Wilson, No. W2004-00275-COA-R3-JV, 2005 WL 517548 at *3 (Tenn. Ct. App. Mar. 3, 2005).

                                                      -5-
affect the interests of the child, the state, or any Title IV-D agency.” Tenn. Code Ann. §
24-7-113(e)(2). The burden of proof in any such proceeding is on the challenger. Tenn.
Code Ann. § 24-7-113(e)(4). If, after a hearing, the court finds based upon the evidence
presented that there is a “substantial likelihood” that “fraud in the procurement of the
acknowledgment by the mother” existed, “then, and only then, the court shall order parentage
tests,” provided that it also finds that this relief “will not affect the interests of the child, the
state, or any Title IV-D agency.” Tenn. Code Ann. § 24-7-113(e)(2); Granderson v. Hicks,
No. 02A01-9801-JV-00007, 1998 WL 886559, at *4 (Tenn. Ct. App. W.S. Dec. 17, 1998).
Thus, according to the statute, the trial court “shall” order parentage tests when a proper
showing is made. Id. at *4.

       In the case at bar, the juvenile court judge did not explain the basis for his denial of
Mr. King’s petition. He simply reconfirmed the juvenile court magistrate’s ruling, which had
stated that Mr. King “failed to prove fraud in the procurement of the Voluntary
Acknowledgment of Paternity.” In order to state a claim for fraud, the following elements
must be established:

       (1) an intentional misrepresentation with regard to a material fact;
       (2) knowledge of the representation[’s] falsity – that the representation was
       made knowingly or without belief in its truth, or recklessly without regard to
       its truth or falsity;
       (3) that the plaintiff reasonably relied on the misrepresentation and suffered
       damage; and
       (4) that the misrepresentation relates to an existing or past fact, or, if the claim
       is based on promissory fraud, then the misrepresentation must embody a
       promise of future action without the present intention to carry out the promise.

Jones v. State ex rel. Coleman, No. W2006-00540-COA-R3-JV, 2006 WL 3613612, at *3
(Tenn. Ct. App. Dec. 12, 2006) (quotation omitted). Here, Mr. King claimed that Mother
knowingly lied to him about being Son’s father, and he testified that she told him that she had
not engaged in sexual relations with anyone else. It is undisputed that Mr. King had no
knowledge of Mother’s relationship with his roommate when he executed the VAP. Mr.
King testified that Mother refused to speak to him after he discovered her relationship with
his roommate, and consequently, she had never actually admitted to having a relationship
with his roommate prior to Son’s birth. However, Mr. King testified that he now believes
that they were having a relationship during that time because he was working the third shift,
and his roommate “would be there when I would leave.” From our review of the record, we
conclude that the evidence preponderates against the juvenile court’s finding concerning
fraud in the procurement of the VAP. Based upon the evidence presented at the hearing, we
find that there is a substantial likelihood that Mother knowingly lied to Mr. King about her

                                                 -6-
lack of sexual contact with other persons and that she was at least reckless with regard to the
truth in telling Mr. King that he was Son’s father. As such, Mr. King met his burden of
establishing a substantial likelihood of fraud pursuant to Tennessee Code Annotated section
24-7-113(e)(2).

        As previously noted, a VAP can only be challenged outside the five year statute of
limitations where “the requested relief will not affect the interests of the child, the state, or
any Title IV-D agency.” Tenn. Code Ann. § 24-7-113(e)(2). “By including this second
requirement in the statute, the legislature clearly recognized that when a voluntary
acknowledgment of paternity has gone unchallenged for over five years, it may not be in the
child's best interest to set aside that acknowledgment, even if the named father is not the
biological father.” In re A.N.F., No. W2007-02122-COA-R3-PT, 2008 WL 4334712, at *15
(Tenn. Ct. App. Sept. 24, 2008). “The interest in determining true parentage must, of course,
be weighed against the need for stability for the child, particularly in situations in which the
child has long believed that the party requesting the blood test was his father.” Granderson,
1998 WL 886559, at *3.

       Here, Mr. King testified that he has no relationship with Son, as Mother had refused
to allow him to see Son since the incident that occurred when Son was two years old. There
was no evidence to suggest that Son has bonded with Mr. King as his father. Thus, allowing
court-approved parentage tests would not cause emotional harm to Son or damage to an
existing father-son relationship. Although Mr. King had been paying child support for
approximately three months at the time of the hearing, and Son could lose that support if Mr.
King is ultimately granted prospective relief from the child support order, the economic
damage can at least be partially allayed by the $32,264 judgment for child support arrearages
that Mr. King remains obligated to pay. Moreover, Son has an interest in being supported
financially by his biological father, whomever that may be. If the VAP is not rescinded, and
if Mr. King is not, in fact, the biological father, then Son’s interest in receiving support from
his biological father is unlikely to be realized, as neither Mother nor the State will have an
incentive to pursue his biological father for support. See White v. Armstrong, No. 01A01-
9712-JV-00735, 1999 WL 33085, at *5 (Tenn. Ct. App. M.S. Jan. 27, 1999). The incentive
will be lacking as long as Mr. King is paying child support.

       As for the State, it too “has an interest in ensuring that biological and adoptive parents
support their children.” State ex rel. Johnson v. Mayfield, No. W2005-02709-COA-R3-JV,
2006 WL 3041865, at *6 (Tenn. Ct. App. Oct. 26, 2006). We have previously stated that
“‘Tennessee law strongly favors requiring biological parents to bear responsibility for their
own children, and [] this policy also favors relieving putative fathers of the burden of
supporting children who have been shown, through conclusive evidence such as DNA
testing, not to be their natural offspring.’” Id. at *5 (quoting Taylor, 2005 WL 517548). We

                                               -7-
also note that at the conclusion of the hearing before the juvenile court judge, the Title IV-D
attorney appeared to concede that it would be appropriate to grant Mr. King prospective relief
from the child support order pursuant to Rule 60.4

        Based upon our review of the entire record, we conclude that Mr. King made the
required showing under Tennessee Code Annotated section 24-7-113, such that the juvenile
court should have allowed DNA testing. If a challenger makes a proper showing under
Tennessee Code Annotated section 24-7-113, then DNA tests must be ordered, “and the
results of the DNA test can be used to rescind the VAP.” Parks, 2006 WL 2032560, at *8.
We conclude that the juvenile court should have allowed court-approved parentage testing
in order to conclusively establish whether Mr. King is the biological father of this child.

        As for Mr. King’s request for prospective relief from the child support order pursuant
to Rule 60.02(4), “[o]ur case law clearly rejects a bright-line rule that properly admitted
genetic tests conclusively excluding a legal father from paternity automatically entitle the
legal father to relief under Rule 60.02.” Hickman, 2008 WL 4963508, at *6 (citing State ex
rel. Ellis v. Humes, No. W2004-00602-COA-R3-JV, 2005 WL 562753, at *3 (Tenn. Ct. App.
Mar.10, 2005); Richards v. Read, No. 01A01-9708-PB00450, 1999 WL 820823 at *12
(Tenn. Ct. App. July 27, 1999) (Cottrell, J, concurring)). Instead, the determination of
whether Rule 60.02 relief is appropriate depends upon a weighing of the equities of the case.
Id. We find that it would be more appropriate for the trial court to consider Mr. King’s
request for relief pursuant to Rule 60.02 after the completion of court-approved parentage
tests on remand.

                                          IV.    C ONCLUSION

        For the aforementioned reasons, we reverse the decision of the juvenile court and
remand for further proceedings consistent with this opinion. Costs of this appeal are assessed
to the appellee, State of Tennessee ex rel. Natalie Dancy, for which execution may issue if
necessary.

                                                          _________________________________
                                                          ALAN E. HIGHERS, P.J., W.S.




        4
           After acknowledging that Mr. King came to the juvenile court in search of relief but received bad
advice, that there is no relationship between him and Son, and that Mother had shown no interest in
prosecuting the case, the Title IV-D attorney stated, “it seems that under Rule 60 that maybe the court could
grant relief to this man in a prospective manner.”

                                                    -8-
