       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE
                                                  FILED
                                                   January 27, 1999
DANIEL WHITE,                  )
                               )                  Cecil W. Crowson
      Plaintiff/Appellant,     )                 Appellate Court Clerk
                               )
                               )    Davidson Juvenile
VS.                            )    No. 147-1238-93
                               )
                               )    Appeal No.
BRENDA ARMSTRONG,              )    01A01-9712-JV-00735
                               )
      Defendant/Appellee.      )



                   APPEAL FROM THE JUVENILE COURT
                        FOR DAVIDSON COUNTY
                       AT NASHVILLE, TENNESSEE

            THE HONORABLE ANDREW J. SHOOKHOFF, JUDGE



For Plaintiff/Appellant:            For Defendant/Appellee:

Clark Lee Shaw                      John Knox Walkup
Nashville, Tennessee                Attorney General and Reporter

Cynthia Bohn                        Sue A. Sheldon
Nashville, Tennessee                Assistant Attorney General




                   REVERSED AND REMANDED




                                    WILLIAM C. KOCH, JR., JUDGE
                                     OPINION

         This appeal involves a man’s efforts to obtain post-judgment relief from an order
requiring him to support a child who is not his own. Over thre e years after v oluntarily
legitimating the child, the man filed a motion in the Davidson County Juvenile Court seeking
to terminate his responsibility to support the child on the ground that genetic testing had
excluded the possibility that he was the child’s biological father. The juvenile court declined
to relieve the man of his support obligation after concluding that the child’s mother had not
fraudulently persuaded the man that he was the child’s biological father and that the man and
the child’s mother had perpetrated a fraud on the court in obtaining the original legitimation
order.       We have determined that the evidence does not support the juve nile court’s
conclusion that the man willfully perpetrated fraud on the court during the original
legitimation proceeding. Accordingly, we find that he is entitled to post-judgment relief
because it is no longer equitable that the legitimation order be given prospective application.


                                              I.


         Daniel White and Brenda Armstrong lived together as h usband a nd wife. W hile they
were living together, Ms. Armstrong gave birth to two s ons. Dan iel White, Jr. w as born in
June 1991, and Juwan White was born in November 1992. Mr. White had no reas on to
believe that he was not the biological father of these children, and so he and Ms. Armstrong
began raising the children together. Soon after her second son was born, Ms. Armstrong
revealed to Mr. White during an argument that w e was not Juw an White’s biolog ical father.1
Mr. White was hurt and saddened by the news, and shortly thereafter, he and Ms. Armstrong
separated. Ms. Armstrong moved out of the house she and Mr. White shared and took the
two children with h er.


         Following the separation, Mr. White filed a pro se petition in the D avidson C ounty
Juvenile Court to legitimate Da niel. Mr. White and Ms. Arm strong differ concerning the
motivation for this p etition. For his part, M r. White asserts that he believed that Daniel was
his son and that Ms. Armstrong had assured him that he was. He also stated that he waived
his right to insist on blood, genetic, or DNA testing because he “was going through a lot at
that time, and I didn’t want to know.” For her part, Ms. Armstrong asserts that she “sat down
and talked to him ” and “told him that this child I was carrying, I don’t know who the father
is, but I know he wasn’t.” On January 5, 1994, a juvenile court referee entered an order
declaring Mr. W hite to be Daniel’s biological father and setting his child support obligation


         1
      In March 1995, the juvenile court entered an order in a separate proceeding finding that
Andrew Martindale is Juwan White’s biological father.

                                              -2-
at $264 per month. The referee also ordered Mr. White to pay Ms. Armstrong $4,847 in back
child support and established his visitation rights with the boy.


       Mr. White p aid his supp ort regularly and exercised his visitation rights with the child.
Several years later, after D aniel repeate dly told Mr. White that he had two fathers , Mr. W hite
decided that he would try to find out the tru th. Accord ing to M r. White, M s. Armstro ng told
him that Kevin Robinson was Daniel's biological father when he called her seeking
permission to have the child tested.2 After the juvenile court den ied Mr. White’s request for
blood, genetic, or DNA testing in October 1997, Mr. White obtained genetic testing on his
own. The test categorically exclud ed the possibility that Mr. W hite could be Dan iel’s
biological father.


       Armed with this evidence, Mr. W hite filed a pro se motion in the ju venile court to
terminate his obligati on to su pport D aniel. He later retained counsel who filed an “amended
motion to stop child support” alleging that Ms. Armstrong had fraudulently persua ded Mr.
White to legitimize Daniel in 1993. Following a hearing in November 1997, the ju venile
court declined to relieve Mr. White of his support obligation because he had “willingly
undertook” it and because Mr. White and Ms. Armstrong had “perpetrated a fraud upon the
Court” when they obtained the 199 4 legitimation order.


                                               II.


       This appeal stands at the intersection of three fundamental policies. The first is the
policy disfavoring reopening cases after they have become final; 3 the second is the policy
disfavoring granting relief to persons either who come into court with unclean hands or who
are responsible for their own misfortune;4 and the third is the policy requiring biological
parents, above an yone else, to assume the respon sibility to support their children.5 The first
two policies advance the goal of fairly apportioning limited judicial resources; while the third



       2
         Later, at the hearing on Mr. White’s post-judgment motion, Ms. Armstrong denied that she
told Mr. White that Kevin Robinson was Daniel’s father and asserted that she did not know who the
child’s biological father was.
       3
       See Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991); Jerkins v. McKinney, 533
S.W.2d 275, 280 (Tenn. 1976).
       4
         See Knox-Tenn Rental Co. v. Jenkins Ins., Inc., 755 S.W.2d 33, 39-40 (Tenn. 1988); Swartz
v. Atkins, 204 Tenn. 23, 28-29, 315 S.W.2d 393, 395 (1958); Redwine v. Metropolitan Life Ins. Co.,
178 Tenn. 83, 85-86, 156 S.W.2d 389, 390 (1941); Farmers & Merchants Bank v. Templeton, 646
S.W.2d 920, 924 (Tenn. Ct. App. 1982).
       5
        See Tenn. Code Ann. § 34-11-102(b) (1996); Smith v. Gore, 728 S.W.2d 738, 750 (Tenn.
1987); Hall v. Jordan, 190 Tenn. 1, 11, 227 S.W.2d 35, 39 (1950); Brooks v. Brooks, 166 Tenn. 255,
256, 61 S.W.2d 654, 655 (1933).

                                               -3-
policy reflects ancient, common-law beliefs concerning the role and responsibility of parents.
In most circu mstance s, advancin g the third po licy should take precedence over the first two.


                                                A.


       We must first identify the procedures available for ob taining post-judgmen t relief
from legitimation orders in juvenile court. While one would think that this inquiry would be
straightforward, it is complicated by the fact that, at the time of these proceed ings, there were
different procedures governing paternity and legitimation actions.6 Both actions could be
filed in juvenile court; however, paternity actions were governed by Tenn. Code Ann. §§ 36-
2-101, -115 (Repealed 1997), while legitimation actions were governed by Tenn. Code Ann.
§§ 36-2-201, -210 (Repealed 1997).          Legitimation proceedings were less formal than
paternity proceedings and were generally uncontested because until 1996 they could not be
filed w ithout th e moth er’s con sent. See Tenn. Code Ann. § 36-2-20 2(c). 7


       Tenn. R. Juv. P. 1(b) provid es that “all paternity cases” are governed by the Tennessee
Rules of Civil Procedure. Thus, motions for post-judgmen t relief from paternity orders are
governed by Tenn. R. Civ. P. 60. See Tennessee Dep’t of Human Servs. v. Johnson, Shelby
Juv., 1986 WL 1873, at * 3 (Tenn. Ct. App. Feb. 11, 1986) (No Tenn. R. App. P. 11
application filed). While Tenn. R. Juv. P. 1(b) does not explicitly include legitimation
proceedings, we con strue the ph rase “all patern ity cases” to mean a ll proceedin gs in juven ile
court in which a child's paternity is at issue. Therefore, Tenn. R. Juv. P. 1(b) a pplies to both
legitimation proceedings under the former statute and actions to establish parentage under
Tenn. Code Ann. § 36-2-301 and these proce edings in juv enile court m ust be con ducted in
accordance with the Tennessee Rules of Civil Procedure.




       Parties seeking post-judgment relief from a final judgment or order in a juvenile court
proceeding involv ing a ch ild's pater nity m ust proc eed in a ccorda nce w ith Ten n. R. C iv. P.
60. Unless the request fo r relief is g overne d by T enn. R . Civ. P. 6 0.02(1 ) or 60.0 2(2), a
motion seeking p ost judgm ent relief mu st be filed w ithin a reason able time. T he court sh ould
employ equitable p rinciples to determ ine wheth er a motio n has bee n filed in a rea sonable
time and should consider, among other factors, (1) the circumstances under which the



       6
         The General Assembly did away with these two actions in 1997 when it replaced them with
a single action to establish parentage. See Act of May 29, 1997, ch. 477, 1997 Tenn. Pub. Acts 862,
codified at Tenn. Code Ann. §§ 36-2-301, -322 (Supp. 1998).
       7
        In 1996, this court held that the portion of Tenn. Code Ann. § 36-2-202(c) requiring the
mother's consent violated the equal protection clauses of Tenn. Const. art. I, § 8 and U.S. Const.
amend XIV, § 1. See In re Hood, 930 S.W.2d 575, 579-80 (Tenn. Ct. App. 1996).

                                               -4-
original paternity order was entered, (2 ) the timing a nd circum stances of th e previous ly
adjudicated father's questioning that he was th e child's father, (3) wheth er the previo usly
adjudicated father presented or attemp ted to present the results of genetic, D NA, or blood
testing; and (4) the burd ens impo sed on the previously adjudicated father and o n the child
by the continued enforcement or by the reopen ing of th e judgm ent of p aternity . See Ex Parte
Jenkins, Nos. 1961520 & 196153 1, 1998 W L 399866, at *8 (Ala. July 17, 1998).


       Tenn. R. Civ. P. 60.02(4) permits courts to relieve a party from a final judgment when
“it is no longer equitable that the judgment should have prospective effect.” The relie f
available under Tenn. R. Civ. P. 60.02(4) applies to judgments that have prospective affect,
not to those that rem edy pa st wron gs. See Maraziti v. Thorpe, 52 F.3d 252, 254 (9th Cir.
1995); In re Moody, 849 F.2d 902, 906 (5th Cir. 198 8).8 This sort of re lief is appropr iate
when a change of circumstances had occurred that would render continued enforcement of
the judgm ent ineq uitable. See DeFilippis v. United States, 567 F.2d 341, 343-44 (7th Cir.
1977); Keith v. Volpe, 960 F . Supp . 1448, 1 457-1 458 (C .D. Ca l. 1997) .


       The force behind Tenn. R. Civ. P. 60.02(4 ) is derived from the historic po wer of a
court of equity to modify its decree in light of chan ged circ umsta nces. See 10A Charles A.
Wright & Arthur R. M iller, Federal Practice and Procedure §2863, at 336 (2d ed. 1 995).
As Justice Cardozo recognized, “a court does not abdicate its power to revoke or mod ify its
mandate, if satisfied that what it has been doing has been turned through changing
circumstances into an instrument of wrong.” United States v. Swift & Co., 286 U.S. 106,
114-15, 52 S. Ct. 460, 462 (1932). Changes in circumstances warranting relief under
procedures akin to Tenn. R. Civ. P. 60.02(4) include the passage of subsequent legislation,
see Protectose al Co. v. Ba rancik, 23 F.3d 1184, 1187 (7th Cir. 1994), a change in the
decisional law, see Theric ault v. Smith, 523 F.2d 601, 602 (1st Cir. 197 5), and a ch ange in
operativ e facts. See Small v. Hunt, 98 F.3 d 789, 7 97 (4th Cir. 199 6).
       When determining whether an order or judgment has prospective application, federal
courts examine whether the order involves supervision by the court of changing conduct or
conditio ns. See Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., Inc., 131 F.3d 625, 630
(7th Cir. 1997); Twelve J ohn Do es v. District of C olumbia , 841 F.2d 1133, 1139 (D. C. Cir.
1988). A child support order certainly involves continued close supervision by the issuing
court because the issuing court retains jurisdiction over the order to modify it in the event of
a change in circum stances or to impose sa nctions for failure to pay. The juvenile co urt’s
order directing Mr. White to pay child support for Daniel was just such an order of


       8
         When Tennessee’s procedural rules are patterned after federal rules, we may look to the
federal courts’ interpretation of analogous federal rules for helpful guidance in construing our own
rules. See Continental Cas. Co. v. Smith, 720 S.W.2d 48, 49 (Tenn. 1986); Bowman v. Henard, 547
S.W.2d 527, 530 (Tenn. 1977).

                                                -5-
prospective application because, under the applicable statutes at the time, it remained in the
court’s control so th at the court could mo dify it as necessary upon th e showing of a
substan tial and m aterial ch ange o f circum stances . See Tenn. Code Ann. § 36-2-203(b)(2)
(repealed 1997) (providing that support orders issued durin g a paternity proceeding were
governed by the sam e provision s that deal with child support in the context of divorce or
separation). 9 Accord ingly, the juv enile court had the power to m odify or vacate its January
5, 1994 order directing Mr. White to pay child support if it determined that it would no
longer be e quitable that th is order hav e prospec tive effect.


                                                B.


       We turn next to the question o f whethe r Mr. W hite should be prevented from pursuing
relief from the ju venile court’s January 5, 1994 order because he voluntarily legitimated
Daniel in 1994. Under the facts of this case, we hav e conclud ed that M r. White’s a ctions in
late 1993 and early 1994 should not prevent him from now seeking prospective judicial relief
from his child support obligation.


       Mr. White’s motivation to legitimate Dan iel in 1993 remains so mewhat u nclear.
Accrediting his testimony, Mr. W hite wante d to do the right thing because he believed that
he was the boy’s biological father. Accrediting Ms. Armstrong’s testimony that she told Mr.
White that she did not know who the child’s biological father was, Mr. White could have
been attempting to establish some legally recognized relationship with the boy because he
feared that his separation from Ms. Arm strong would sev er his connection w ith Daniel. In
either case, Mr. White was simply attempting to avoid the public humiliation and
embarrassment that would follow the revelation that he was not the father of either of the two
boys he thought w ere his sons . He was also seekin g to establish a relationship w ith the boy
that Ms. Armstrong could not capriciously undermine. This conduct is not the sort of fraud
on the court that should prevent Mr. White from seeking prospective relief based on the
irrefutable, newly discovered evidence that he is not the ch ild’s biological father.


                                                C.


       We turn finally to the issue of whether the irrefutable evidence that Mr. White is not
Daniel’s biological fath er provides sufficient grounds to excuse Mr. W hite prospe ctively
from his support obligation. In two cases this court has upheld the use of Tenn. R. App. P.
60.02(5) to grant prospective relief from a paternity order. In one case, the person seeking


       9
       In 1993, as now, child support decrees “remain within the court’s control, so that the court
may make such modifications as necessary upon a showing of a substantial and material change of
circumstances.” Tenn. Code Ann. § 36-5-101(a)(1) (Supp. 1998).

                                                -6-
relief asserted that he had been fraudulently induced by the child’s mother to consent to the
entry of the p aternity order. See Tenne ssee D ep’t of H uman Servs. v . Johnson, 1986 WL
1873, at *1. In the second case, the juvenile court had entered conflicting orders determining
that two dif ferent m en we re the ch ild’s bio logical f ather. See Jo hnson v. Johnson, No.
02A01-9605-JV-00123, 1997 WL 271787, at *3 (Tenn. Ct. App. January 7, 1997) (No Tenn.
R. Ap p. P. 11 applica tion filed ).


          In both cases in which this court has approved granting post-judgment relief from a
paternity order, we have em phasized that “it is of overriding importance . . . that one
conclusive ly established in law not to be the father of a child be not declared as the father of
that child.” Johnson v. Johnson, 1997 WL 271787, at *3; Tennessee Dep’t of Human Servs.
v. Johnson, 1986 WL 1873, at *5. The result in these cases is consistent with cases from
other jurisdictions that have used procedures similar to Tenn. R. Civ. P. 60.02(4) to relieve
a man from the prospective operation of a child support order when conclusive proof
established that he w as not th e father of the ch ild. See Alab ama ex rel. G.M.F. v. W.F.F., No.
2950647, 1996 WL 697995, at *3 (Ala. C iv. App. D ec. 6, 1996 ); Crowd er v. Com monw ealth
ex rel. Gregory, 745 S.W.2d 149, 151 (Ky. Ct. Ap p. 1988); Cuyahoga Child Support
Enforcement Agency v. Guthrie , No. 72216, 1997 WL 607530, at *2 (Ohio Ct. App. Oct. 2,
1997) .


          Post-judgment relief in cases of this sort should not be granted without analyzing the
burdens that granting relief or failing to grant relief will place on all who have an in terest in
the proceeding. In this case, these parties include Daniel, Mr. White, Ms. Armstrong, and
the State. If relief is no t granted, M r. White w ill be required to support a c hild who is no t his
own. Between the present and the time the child reaches majority, Mr. White will have been
required to make approximately $31,000 in support payments. He stands to lose the most
financially if relief is not granted.


          Ms. Armstrong, on the other hand, will lose little if prospective, post-judgment relief
is granted. She is already required to provide support for Daniel to the best of her ability, and
we presume that she has be en currently using M r. White’s su pport pay ments to benefit him.
She is apparently obtaining government assistance to assist in raising D aniel, and there is no
evidence in the record that the amount of this assistance will be affected if Mr. White obtains
the post-judgment relief he seeks. Should Mr. White obtain post-judgment relief, Ms.
Armstrong will not be re quired to reim burse M r. White for the child support he has already
paid and will also be able to pursue Daniel’s biological father for child support to replace the
support that Mr. White will no longer be paying.




                                                 -7-
       Daniel may be adversely a ffected if M r. White is g ranted pos t-judgme nt relief because
Ms. Armstrong w ill no longer receive suppo rt from Mr. W hite. However, part or all of these
support payments may very well be recouped from his biological father. The boy has a legal
interest in being supported by his biological father, but this interest will not be realized as
long as either his mother or the State have no incentive to pursue his biological father for
support. T his incentive will be lack ing as long as Mr. W hite is paying child supp ort.


       We turn finally to the State. The State has an interest in seeing to it that biological
and adoptive parents support their children to the fullest extent possible and in avoiding the
use of public fu nds to sup port children when th eir parents are able to do so . If Mr. W hite is
granted post-judgment relief in this case, the financial burden on the State in the form of
increased food stamps or AFDC benefits may increase . However, the State m ay be able to
avoid increasing Ms. Armstrong’s welfare benefits by vigorously pursuin g Daniel’s
biological father for support as envisioned by the IV-D p rogram. T he State’s inte rest in
conserving limited welfare benefits certainly does not warrant imposin g a child support
obligati on on a person who is not the c hild’s bi ologica l or ado ptive pa rent.


       The State raises one f inal, non-m onetary inte rest of Dan iel. It asserts that the c hild
will be adversely affected if Mr. White obtains post-judgment relief because granting relief
from the juvenile court’s January 5, 1994 order will result in the “bastardization” of the
child.10 Tennessee law unquestionably favors fostering relationships between a child and
both of his or her biological parents. It also favors, when practicable, shielding a non-marital
child from the demeaning stereotypes still attached to children whose parents are not married
to each othe r. Under th e facts of this ca se, howe ver, no am ount of soc ial engineerin g by this
court or any oth er court w ill change th e fact that D aniel, and pr actically eve ryone else in his
life, alrea dy kno ws tha t Mr. W hite is no t his biolo gical fath er.


       Mr. White and Daniel are already estranged as a result of th e separation of Mr. W hite
and Ms. Armstrong. Granting or declining to grant Mr. White post-judgment relief from the
January 5, 1994 o rder will not re-establish the relationship b etween M r. White an d Daniel.
Declining to grant Mr. White post-judgment relief may very well delay or prevent Daniel
from receiving support from his biological father. Accordingly, we have determined, based
on the interests of all concerned, that the juvenile co urt should h ave grante d Mr. W hite
prospective relief from its Jan uary 5, 199 4 order req uiring him to financially s upport D aniel.



       10
          We take issue with the State’s choice of the term “bastardization.” It carries with it
negative connotations that are outmoded and inappropriate. This term no longer has a place in legal
discourse, certainly not in briefs filed with this Court. In a similar vein, the General Assembly has
signaled that the term “illegitimate” should no longer be included in “any legal proceeding, record,
certificates, or other papers.” Tenn. Code Ann. § 36-2-317 (Supp. 1998).

                                                 -8-
Accordingly, we rem and the ca se with directions to enter an order granting Mr. White relief
from the judgm ent from the date of his o riginal motion seeking relief.


                                              III.


       We reverse the order denying Mr. White relief from the January 5, 1994 judgment and
remand the case to th e juvenile co urt for further p roceeding s consistent w ith this opinion.
We tax the costs of this appeal to the State of Tennessee.




                                            ____________________________
                                            WILLIAM C. KOCH, JR., JUDGE


CONCUR:


_________________________________
WILLIAM B. CAIN, JUDGE


_________________________________
HENRY F. TODD, JUDGE




                                              -9-
