             IN THE COURT OF APPEALS OF TENNESSEE
                        AT NASHVILLE


JAMES EDWARD RICHARDS,
III,
                                       )
                                       )                           FILED
                                       )
      Plaintiff/Appellant,             )           Appeal No.    July 27, 1999
                                       )           01A01-9708-PB-00450
                                                                  Cecil Crowson, Jr.
v.                                     )
                                                                 Appellate Court Clerk
                                       )           Davidson Probate
CYNTHIA ANN READ,                      )           No. 74910
                                       )
      Defendant/Appellee.              )
                                       )

                 SEPARATE CONCURRING OPINION

      As the majority opinion notes, the Appellant's only avenue for relief is

Tenn. R. Civ. P. 60.02 (4). That rule provides, in pertinent part:

      On motion and upon such terms as are just, the court may relieve
      a party . . . from a final judgment, order or proceeding for the
      following reasons: (4) . . . it is no longer equitable that a
      judgment should have prospective application. . . . The motion
      shall be made within a reasonable time, . . .

Tenn. R. Civ. P. 60.02 (4) (emphasis added).

      A determination of what is "just," "equitable" or "reasonable" in any given

situation is fact dependent. I am concerned that the majority opinion, and the

other recent opinions discussed therein, may be construed as establishing a

black-letter rule that every father who has voluntarily acknowledged paternity

and who is later proved not to be the child's biological father may be relieved

from the parental obligation he previously undertook. That is not the current

state of the law, and I do not believe it is the majority’s intent to make it so.

      However, the majority opinion includes the statement that "it is no longer

equitable to require child support from a man conclusively established not to be

the biological father of the child." I do not believe it would be inequitable in

every factual situation to require a person to continue to live up to
responsibilities he voluntarily assumed. Nor do I believe that in every situation

it would be just to deprive a child of the support and parental relationship,

established by law, upon which the child has relied.

       In balancing the equities of each case, as Rule 60.02 requires us to do, the

financial interests of a father at law who is not also the biological father cannot

be presumed to always outweigh the interests of a child. The fact that the

statutory legitimation process is based upon the obligations arising from a

parent's biological relationship to a child appears to be the primary basis for our

court's willingness to grant the extraordinary remedy of Rule 60.02 relief in these

situations, even where, as here, the father, after consultation with counsel, has

made a strategic decision not to obtain a blood test before agreeing to the

legitimation order.1 However, science’s recently developed ability to determine

biological parentage with unprecedented accuracy does not automatically dictate

that our courts should abandon the traditional Rule 60.02 analysis in examining

requests to disavow legal parentage. Our legislature has determined that the

public policy of our State is furthered by limiting the ability of non-biological

fathers to rescind a voluntary acknowledgment of paternity, especially after the

passage of five years. Tenn. Code Ann. § 24-7-118 (e) (2) (Supp. 1998).

       In the case before us, I concur in the results because I think the goals of the

equitable principles underlying Rule 60.02 are met by the majority opinion's

holding in its totality.




       1
        I disagree with the majority’s statement that the only difference between
this case and White v. Armstrong is the wealth of the at law father. In my opinion,
the facts surrounding the signing of the agreed order of legitimation, as well as
those surrounding the timing of Mr. Richards’s decision to take his daughter for
blood testing, distinguish this case from White.
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_________________________________
PATRICIA J. COTTRELL, JUDGE




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