                     IN THE COURT OF APPEALS OF TENNESSEE
                          WESTERN SECTION AT JACKSON



STATE OF TENNESSEE, ex rel.         )
                                                                     FILED
MARY KATHERINE DUCK,                )
                                    )                                  October 29, 1997
       Respondent/Appellee,         )      Madison Juvenile No. 18-0155
                                    )                                 Cecil Crowson, Jr.
vs.                                 )                                Appellate C ourt Clerk

                                    )      Appeal No. 02A01-9604-JV-00084
JOE DAVID WILLIAMS                  )
                                    )
       Petitioner/Appellant.        )




            APPEAL FROM THE JUVENILE COURT OF MADISON COUNTY
                          AT JACKSON, TENNESSEE




                  THE HONORABLE WALTER BAKER HARRIS, JUDGE




For the Respondent/Appellee:        For the Petitioner/Appellant:

Jennifer Helton Small               Charles A. Spitzer
Deputy Attorney General             Jackson, Tennesseee
Nashville, Tennessee

Nathan B. Pride
Assistant Attorney General
Jackson, Tennessee


                                    AFFIRMED



                                    HOLLY KIRBY LILLARD, J.


CONCUR:


W. FRANK CRAWFORD, P.J., W.S.


ALAN E. HIGHERS, J.
                                             OPINION

       This is a paternity case. The appellant putative father appeals from an order of the Juvenile

Court denying his motion for a DNA blood test. We affirm the trial court’s decision.

       Danielle Renee Duck was born out-of-wedlock on April 16, 1989 to the appellee, Mary

Katherine Duck (“Duck”). Duck and the appellant putative father, Joe David Williams (“Williams”)

never married. The minor child has remained in the custody of her mother.

        Shortly after the child’s birth, the Attorney General filed a petition to establish paternity in

the Madison County Juvenile Court, alleging that Williams was the natural father. The following

day, Williams agreed to a consent order of paternity and support (“Consent Order”) regarding the

child. The Consent Order stated that both Williams and Duck had been fully advised of their rights

and that Williams acknowledged his obligation to support the child. The Consent Order required

that Williams pay $50.00 per month for Danielle’s support.

       In December 1990, the Attorney General filed a petition to modify the Consent Order by

increasing the monthly child support. Shortly thereafter the Madison County Juvenile Court entered

an order increasing the monthly child support to $137.00 per month. The modified order also

directed Williams to provide health insurance or, in the alternative, pay one-half of any medical costs

incurred by the child.

       Nearly five years later, in November 1995, the Attorney General filed another petition

seeking a further increase in the monthly child support. In response, Williams filed a motion for

DNA blood testing, alleging that he had always believed that the child may not have been his child.

Williams also asserted that Duck informed him that she had engaged in sexual relations with another

party during the time frame in which the child was conceived. Williams asserted that the original

Consent Order establishing paternity to which he agreed in 1989 was signed under duress and

pressure, and stated that he had no relationship with the child.

       Duck’s response to Williams’ motion for blood testing argued that the sole reason for his

motion was to retaliate for her attempt to increase the child support amount. Duck denied telling

Williams that he was not the father of the child, and asserted that she had not engaged in sexual

relations with anyone other than Williams during the time period in which the child was conceived.

Duck asserted that Williams had spent significant time with Danielle in the past and that his recent

absence caused Danielle emotional stress.
       The Juvenile Court of Madison County held a hearing on Williams’ motion for blood testing,

and subsequently entered an order denying the motion, citing the amount of time that had passed

since the Consent Order establishing paternity, and noting that Williams had made no allegation of

fraud. Williams now appeals the denial of his motion for blood testing.

       On appeal, Williams alleges that the trial court erred in denying his motion for blood testing.

He argues that the entry of the Consent Order was not an “initial appearance” within the meaning

of the statutes, because he did not dispute paternity. He asserts further that the statutes do not

require an allegation of fraud in order to obtain a blood test, and that the statutes do not require the

putative father to seek a blood test in his “initial appearance.”

        Our review in this case is de novo on the record of the trial court, with a presumption of the

correctness of its factual findings, unless the evidence preponderates against those findings. Rule

13(d), Tenn. R. App. P. No presumption of correctness attaches to the trial court’s conclusions of

law. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

        Tennessee Code Annotated § 24-7-112 governs the right of a party to demand DNA blood

testing. Subsections (a)(1) and (a)(2) both address the conditions under which such a test may be

ordered:

        Test to Determine percentage--Admissibility in Evidence--Costs--(a)(1) In the
        trial of any civil or criminal proceeding in which the question of parentage arises, the
        court before whom the matter may be brought, upon the motion of either party at the
        initial appearance, shall order that all necessary parties submit to any tests and
        comparisons which have been developed and adapted for purposes of establishing or
        disproving parentage. Tests for determining paternity may include any blood,
        genetic, or DNA test utilized by an accredited laboratory. Failure to make a timely
        motion for submission to such tests and comparisons shall constitute a waiver and
        shall not be grounds for a continuance. The results of such tests and comparisons,
        including the statistical likelihood of the alleged parent’s parentage, if available, may
        be admitted into evidence as provided in subsection (b).
        (2) During any civil proceeding in which the question of parentage arises, upon the
        motion of either party or on the court’s own motion, the court shall, at such time as
        it deems equitable, order all necessary parties to submit to any tests and comparisons
        which have been developed and adapted for purposes of establishing or disproving
        parentage. . . . (Emphasis added).

Subsection (a)(2) of this statute was added in 1991. The apparent inconsistency between subsections

(a)(1) and (a)(2) has been previously noted by this Court. See Davis v. Davis, No. 03A01-9509-CH-

00327, 1996 WL 12584 (Tenn. App. 1996). The issue was also discussed in O’Brien v. Bainbridge,




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No. 01A01-9404-PB-00175, 1994 WL 590035 (Tenn. App. 1994):

        Facially, subsections (a)(1) and (a)(2) are inconsistent in that (a)(1) requires motions
        for blood tests to be filed “at the initial appearance” and provides that failure to
        timely file the motion constitutes a waiver thereof; whereas (a)(2) states that ‘During
        a civil proceeding . . . upon motion of either party or on the court’s own motion, the
        Court shall, at such time as it deems equitable, order (blood tests).

Id. at *2. In Davis v. Davis, this Court reconciled these two provisions:

        Construing these provisions in para materia, we conclude that (a)(1) requires that
        the Judge order testing if one of the parties raises the issue in the initial pleading if
        the issue is raised later, (a)(2) grants the Trial Judge discretion in deciding whether
        the testing should take place.

Davis, 1996 WL 12584, at *2. Therefore, if Williams had sought a blood test in his initial pleading,

such a test would be required. Since Williams raised the issue later, the trial court had the discretion

to decide whether the test should be ordered.

        Williams claims that he is entitled to a blood test as a matter of right under the provisions of

Tennessee Code Annotated § 24-7-112(a)(1) because the juvenile court proceeding in 1989, in which

Williams signed a Consent Order of Paternity and Child Support, did not constitute an “initial

appearance” on the issue of paternity. In support of his argument, Williams cites Williams v.

Campbell, No. 02A01-9408-JV-00177, 1995 WL 429265 (Tenn. App. 1995). In Williams, this

Court discussed what constitutes an “initial appearance.” The parties in Williams were married at

the time of the child’s birth. They divorced shortly thereafter and the mother retained custody of the

child. An order of child support was entered by the Juvenile Court. The issue of paternity was not

raised at this point.

        Four years later the father filed a petition to set aside the child support order on the basis of

newly discovered evidence which brought into question his paternity. The father testified that he

had always believed the child to be his. However, following a heated argument regarding the child’s

visitation schedule, the mother and her family members informed him that he was not the father.

This argument took place nearly three years after the child support order was entered. Shortly after

the argument, the father filed a petition requesting that the juvenile court set aside the child support

order on the basis of newly discovered evidence, and further requesting that the juvenile court order

a blood test to determine paternity. The trial court refused to set aside the child support order and

refused to order the parties to submit to a blood test. The father then appealed to this Court.

        On appeal, this Court noted that the issue of paternity had not previously been considered.



                                                   3
It concluded that the father’s petition requesting a blood test constituted an initial appearance under

Tennessee Code Annotated § 24-7-112, thereby requiring that the trial court enter an order for a

blood test to determine paternity:

       In the present case, the conditions activating the application of T.C.A. §24-7-112
       have been met. This is clearly a civil proceeding involving the question of parentage
       in which the appellant moved in the initial appearance before the juvenile court for
       an order requiring the parties to submit to a paternity test. Although it can be argued,
       based on the holding in Steioff v. Steioff, 833 S.W.2d 94 (Tenn.App.1992), that the
       parties’ appearance before the juvenile court on the issue of child support was the
       initial appearance, we find the present action to be the first action between the parties
       concerning the paternity of [the child]. . . . In the present case, the parties did not
       raise the issue of paternity at any time during the action seeking child support. In
       fact, the paternity of [the child] was not an issue until the present action was filed
       because at the time of the child support order the parties were married and [father]
       assumed he was the father of the child.

Williams, 1995 WL 429265, at *2. In the case at bar, Williams argues that in this case, as in

Williams v. Campbell, there was no denial of paternity at the outset. However, the initial

proceeding between Williams and Duck was a petition to establish paternity filed by the Attorney

General. Since Williams and Duck were never married, before an order of child support could be

rendered, a paternity determination was required. It is undisputed that Williams failed to request a

blood test at the time of the initial paternity proceeding. Accordingly, we find that Williams’

petition seeking a blood test was not an “initial appearance” within the meaning of Tennessee Code

Annotated § 24-7-112(a)(1).

        Therefore, Williams’ petition for a blood test must be considered pursuant to subsection

(a)(2) of Tennessee Code Annotated § 24-7-112, which grants the trial court the discretion to

determine whether to grant a request for a blood test filed after the initial appearance. The standard

of review on appeal on this issue is whether the trial court abused its discretion in denying the

motion. An appellate court “will not reverse a discretionary judgment of the trial court unless it

affirmatively appears that such discretion has been explicitly abused to great injustice and injury of

the party complaining.” Douglas v. Estate of Robertson, 876 S.W.2d 95, 97 (Tenn. 1994). See also

Ballard v. Herzke, 924 S.W.2d 652 (Tenn. 1996).

        In this case, following the hearing, the trial court issued an oral ruling:

        [A]s long as you pay support for a child, looks like, [. . .] it is the judgment of the
        Court that this petition is denied, and the Court feels that too much time has gone by
        and that no allegation of fraud [exists] and so the Court does deny the Motion.

Williams argues that the trial court erred in basing its decision on Williams’ failure to allege fraud.



                                                   4
However, while the trial court noted the absence of an allegation of fraud, it also relied on the

undisputed lengthy period of time that had passed since the entry of the Consent Order establishing

paternity. In his petition, Williams asserted that Duck informed him that she had engaged in sexual

relations with a third party during the time period in which the child was conceived. However,

Williams failed to establish in the record when this alleged conversation with Duck took place. In

addition, it is undisputed that Williams’ petition was filed shortly after Duck filed a petition seeking

an increase in child support. Under all of these circumstances, we cannot conclude that the trial

court abused its discretion in denying Williams’ petition for blood testing.

        The decision of the trial court is affirmed. Costs on appeal are taxed to the Appellant, for

which execution may issue if necessary.




                                       HOLLY KIRBY LILLARD, J.


CONCUR:




W. FRANK CRAWFORD, P. J., W.S.




DAVID R. FARMER, J.




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