                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON


TODD HARMON,                          )
                                      )                                 FILED
           Plaintiff/Appellee,        ) Carroll Chancery No. 96-DR-187
                                      )                              December 3, 1998
VS.                                   ) Appeal No. 02A01-9709-CH-00212
                                      )                             Cecil Crowson, Jr.
JANET HARMON,                         )                              Appe llate Court C lerk
                                      )
           Defendant/Appellant.   )


              APPEAL FROMTHE CHANCERY C OURT O CARRO COUNTY
                                              F      LL
                          AT HUNTINGDON, TENNESSEE
                   THE HONORABLE WALTON WEST, CHANCELLOR




LAURA A. KEETON
LAW OFFICES OF ROBERT T. KEETON, JR.
Huntingdon, Tennessee
Attorney for Appellant



KEVIN McALPIN
JAMES H. BRADBERRY & ASSOCIATES
Dresden, Tennessee
Attorney for Appellee




AFFIRMED




                                                          ALAN E. HIGHERS, J.



CONCUR:

DAVID R. FARMER, J.

HOLLY KIRBY LILLARD, J.
        Megan Harmon (“Megan” or “Appellant”), minor child born during the marriage of Plaintiff/Appellee,

Todd Harmon (“Mr. Harmon” or “Appellee”) and Defendant Janet Harmon (“Mrs. Harmon”), by and through her

Guardian Ad Litem (G.A.L.), appeals the decision of the trial court which found that Appellee was not the

biological father of Appellant, and incorporated into the decree of divorce the marital dissolution agreement

in which the parties agreed Appellee would have no further obligation to the child.1



                                 I. Factual and Procedural History



        The Parties, Todd Harmon and Janet C. Harmon, were married on December 3, 1994. At the time of

the marriage, Janet Harmon was pregnant. Todd Harmon was aware that Janet Harmon w seeing another
                                                                                  as

man, as well as himself, during the time that she became pregnant. Todd Harmon alleges that he married

Janet Harmon under the pretense that he was the father of the child. The minor child, Megan Harm was
                                                                                                on,

born on June 23, 1995, and Todd Harm is listed as the father of the child on the birth certificate. No other
                                    on

putative father has been m known to the Court or the G.A.L.
                          ade



        On October 9, 1996 Todd Harmon filed for divorce alleging that he m not be the child’s father. U
                                                                           ay                           p

until the time Todd Harmon filed for divorce he treated the child as his own. The matter initially cam up for
                                                                                                      e

hearing and at that point in time the Court was made aware that Mr. Harm was asking the Court to declare
                                                                        on

that he was not the biological father of the minor child and therefore a G.A.L. was appointed to represent the

interests of the minor child.



        On April 3, 1997, Todd Harmon fileda motion toam the com
                                                        end     plaint andalleged that the m child
                                                                                            inor

was not his and he should have no obligation for the support and care of the child, and that the child should

be made a party defendant and to have a G.A.L. appointed.

        A written G.A.L. report was filed on June 20, 1997 wherein it was reported that it was in the best

interest of the child that the divorce should not terminate Todd Harmon’s legal obligations to the child.



        Theparties entered into a marital dissolution agreement in which both parties acknowledged that Todd



        1
         The G.A.L. has appealed on behalf o f the minor child; hence, the child is characterized herein as
Appellan t.

                                                      2
Harmon was not the biological father of the minor child and agreed that Todd Harmon would have no further

legal obligation to the child. The matter came tobe heardin open court on June 24, 1997, at which time Todd

Harmondid offer into evidence a blood test which shows heis not the father. The G.A.L. report was presented

and the G.A.L. was allowed to question the Plaintiff in open court and to argue to the court that the Plaintiff

retained a dutyand wasestopped todenythesame tothechild. Thetrial courtapproved the marital dissolution

agreement, found that Todd Harm was not the biological father of the minor child, and that he would have
                               on

no further obligation to the minor child. The decree of divorce was entered on July 29, 1997.



                    II. Non-biological Father’s Liability for Child Support



        This is a case where parties to a divorce agreed that the Husband was not the biological father of the

minor child born during the marriage and this fact was confirmed by a blood test. The parties agreed in their

marital dissolution agreem that Mr. Harm would no longer have any obligation to the child.
                          ent           on



        A recent case dealing with this issue is the case of Witt v. W 929 S.W 360 (Tenn. App. 1996).
                                                                      itt,    .2d

In Witt, the parties to the divorce stipulated in a marital dissolution agreement that the child born during the

marriage was not the natural child of the husband, and the husband forfeited all his paternal rights and

obligations to the child. The mother subsequently applied for and received AFDC benefits from the State of

Tennessee, and the Statein turn filedanactionseekingto imposechild support obligationson the ex-husband

and to establish paternity. The parties underw bloodtests which revealed that the ex-husband was, in fact,
                                              ent

the natural father of the child. The Court set aside the portion of thedivorce decreeforfeitinghisparental rights

and obligations and ordered the ex-husband and father to pay child support for the m child.
                                                                                    inor



        The Court in Witt held that agreements, incorporated in court decrees or otherwise which relieve a

natural or adoptive parent of his or her obligation to provide child support are void as against public policy

as established by the General Assembly. Witt at 363 (emphasis added). The C then added the following:
                                                                           ourt

                 We wish to further state that a child or children bornto amarriage cannot be
                 rendered illegitimate, directly or indirectly, in any divorce action or other
                 proceeding unless the child or children are made parties to the action,
                 afforded the protection of a guardian adlitem and counsel, if necessary.Witt
                                                                ,
                 at 363.

The Court was concerned with parties entering into agreements which relieve a parent of his or her obligation

                                                       3
to support a child without affording the child any protection. In the Witt case, the Court particularlystated that

it was convinced that the parties joined in a blatant untruth in their marital dissolution agreement.



         In order to provide the child w protection in such cases, the Court set forth the procedure to be
                                        ith

followed in situations where a husband seeks to be relieved of his obligation to support a child who is not his

but was born during the course of the marriage. The Court sought to assure that parties do not agree to relieve

a parent of his or her obligation to support a child who is actually the biological child of both parties, as was

the case in Witt. Importantly, the Court in Witt never found that a husband could not seek such relief in a

divorce action. In fact, the language setting out the proper procedure would be meaningless if a husband could

not seek such relief.



         In the case at hand, Appellant was m a party to the action and was afforded the protection of a
                                             ade

G.A.L. Blood tests were introduced which showed that Mr. Harm was not the biological father of Appellant.
                                                             on

This was not the situation, as in Witt, where the parties were seeking to relieve the husband of his obligation

to support a child which was, in fact, the biological child of the husband. Mr. Harmon followed the proper

procedure, as set forth in the Witt case, in seeking to be relieved of his obligation to support Appellant.

         Having concluded that, under the existing case law, a husband may seek to avoid his child support

obligation for a child born during the marriage but which is not his biological child, we m now address the
                                                                                           ust

Appellee’s burden in overcoming the presumption of legitimacy. In the common law of Tennessee, there has

long been a presumption of legitim grow out of birth during wedlock and the early rule was that this
                                  acy  ing

presumption was so far conclusive that it could be overcome only by proof of impotence on the part of the

husband or his absence from the realm during the period when the child was conceived. However, the

hardship worked by this rule led to its modification by the courts. Cannon v. Cannon, 26 Tenn. 411 (Tenn.

1846).



         In Cannon, the Tennessee SupremeCourt held that the presumption of legitim wasrebuttable, and
                                                                                   acy

in that case, held that a child born during the marriage was not the child of the husband. In Jackson v.

Thornton, 133 Tenn. 36, 179S.W. 384 (1915), theCourt heldthat the presumption may be overcome by clear,

strong, and convincing evidence. In Pressley v. Pressley, No. 03A01-9311-CV-00400, 1995 Tenn. App. LEXIS

77 (Ct. App. Feb. 10, 1995), thefacts are very similar to the matter at hand. The Court relieved a Husband of

                                                        4
his obligation to support the child upondivorcing the mother. The Court found that it was established not only

by clear and convincing evidence that the husband was not the father of the child in question, but it also had

been established (as between the parties) by stipulation. A stipulation made before the court is a sacrosanct

pact with the court and is to be treated inviolable except under the most unusual circumstances.



           In the case at hand, Appellee established that he w not the biological father of Appellant through
                                                              as

the introduction of a blood test. With the present state of technology and the accuracy of such tests, these test

results certainly qualify as clear and convincing evidence. Additionally, the parties agreed in their marital

dissolution agreement that Appellee was not the biological father of the child and should be relieved of his

rights and obligations to the child. Appellant was provided a G.A.L. to protect her interests and to ensure that

Appellee carry his burden of proof.



           Additionally, Tenn. Code Ann. §36-2-304, while not in effect at the time this matter was heard,

evidences the intent of the Tennessee legislature in this area. The relevant portions of the statute are as

follows:

                   §36-2-304 Presumption of parentage - (a) A man is rebuttably
                   presumed to be the father of a child if:
                     (1) He and the child’s mother are married or have been married to each
                   other andthe child is born duringthe m   arriage or within three hundred (300)
                   days after the m   arriage is terminated by death, annulment, declaration of
                   invalidity, or divorce; . . .
                       (b)(1) Except as provided in subdivision (2), a presumption under
                   subsection (a) may be rebutted in an appropriate action.
                      (3) The standard of proof in an action to rebut paternity shall be by
                   preponderance of the evidence.
                       (4) All prior presumptions of parentage established by the previous
                   paternity and legitimation statues and cases are abolished.

Under this statute, while a child born during the marriage is presumed to be the child of the husband, the

husband can rebut the presumption by a preponderance of the evidence.



           For theforegoing reasons, we holdthat under the existingcaselaw, a husbandmayseekto avoid his

child support obligation for a child born during the marriage but which is not his biological child, if a guardian

ad litem is appointed to represent the best interest of the child, and if the husband is able to rebut the

presumption of legitimacy by clear, strong and convincing evidence to the contrary.




                                                         5
                                                III. Estoppel



        Mr. Harmon married the mother of the child knowing there was a possibility the child was not his. Mr.

Harmon allowed his name to be placed on the birth certificate as the father of the child. Furtherm M
                                                                                                  ore r.

Harmoncelebrated the birthof the child and treated the child ashis own until the tim of thedivorce. Appellant
                                                                                    e

urges this court to find that Mr. Harmon should thereforebeestopped fromdenyingresponsibility for the child.



        Tennessee is not a state which recognizes adoption by estoppel. Johnson v. Wilbourne, 781 S.W.2d

857, 862 (Tenn. Ct. App. 1989). In Johnson thisCourt citeda Wisconsincasein which the trial court had found

adoption by estoppel upon the equitable maxim that equity regards as done that which ought to have been

done. In reversing, the Wisconsin Supreme Court stated:

                 The error in so considering the case lies in overlooking the fact that adoption
                 proceedings are wholly statutory and do not depend upon equitable
                 principles . . . In order to constitute one an adopted son of another, there
                 must be judicial proceedings to that end conform    ably to the statute. Equity
                 has no power to declare an adoption. St. Vincent’s Infant Asylum v. Central
                 Wisconsin Trust Co., 206 N.W 921 (1926).
                                                  .


        Appellant argues that in the recent case of Evans v. Steelman, 970 S.W.2d 431 (Tenn. 1998), our

Supreme Court has accomplished adoption by estoppel without labeling it as such. The case of Crawford v.

Crawford was consolidated with Evans on appeal. In both cases, the putative fathers brought actions to

legitimatetheir children bornduringtherespective mothers’ marriagesto other men. The Tennessee Supreme

Court found that the fathers did not have standing to bring such legitimation actions.



        TheTennessee Supreme C in Evans held that under the version of the legitimation statute in effect
                              ourt

at the time the actions were filed, children “not born in lawful wedlock” applied only to children born to

unmarried women. Tenn. Code Ann. §36-2-202 (repealed). Therefore, putative fathers could not bring

legitimation actions in these situations. Our Suprem Court found that the statute survived due process and
                                                    e

equal protection challenges as the father’s relationship with the child born under such circumstances was not

an interest protected by due process and the state’s interest in preserving the integrity of the family provided

a rational basis for the statute.



         Although the Evans case prevents a putative father fromasserting a claim to the child in deference

                                                       6
to the family into which the child was born, the case does not support the claim that Tennessee now

recognizes adoption by estoppel. The case does not address the issue of compelling a non-biological father,

upon divorce, tosupport a child born during a marriage. Rather, the Evans case addressesthe scenario where

an outsider to a marriage wants to assert a superior claim to a child that is being raised within the stability of

amarriage.



         Additionally, while not in effect at the tim this case was filed, the legislature has now established a
                                                     e

singlecause of actionto establishparentage of children. Under the new legislation, “child born out of wedlock”

is specifically defined to mean “a child born to parents who are not married to each other when the child was

born.” While the legislature declined to make this legislation retroactive, the statute further indicates that the

presumption is rebuttable that a child born to a married wom is her husband’s legitim child.
                                                            an                       ate



         The law does not treat as trivial an action that relieves a parent of his duty to support his child.

However,Tennessee does not providefor the imposition of a child support obligation upon an individual unless

that person has a duty to support his or her natural or adopted child. While relieving a father of his duty to

support a child born during his marriage to the child’s mother may w a harsh result, the trial court and the
                                                                    ork

G.A.L. are there to ensure that this result is reached only when the child’s true status is shown by “clear,

strong, and convincing” evidence. If evidence of this quality is not presented, the court should refuse to find

a lack of paternity. Fortunately, blood tests are now available which make a mistake in this critical area less

likely to happen than at an earlier time.



         A minor child who is determined in a divorce proceeding not to be the natural child of his or her

mother’s husband, is not without recourse in the law. There are statutory provisions designed to establish, if

not foster, the relationship between a child and his natural father. See Tenn. Code Ann. §36-2-301 through

§36-2-322. In Tennessee, a parent is obligated to support that parent’s natural and adopted minor children.

See Tenn. Code Ann. §36-6-101(a). In the absence of a formal adoption, a man is not obligated to provide

support for a child when it is shown by clear, strong, and convincing evidence that he is not thenatural parent

of the child.

         In the instant case, the parties agree that Mr. Harm is not the biological father of the child. It was
                                                             on

further established by a blood test that M Harmon could not be the biological father. Additionally, a G.A.L.
                                          r.


                                                        7
was appointed torepresent the best interest of thechild andto ensureMr. Harm carried his burdenof proof.
                                                                            on

Mr. Harmon has not adopted the child. The law does not impose anobligationonhimto support the child. For

all the foregoing reasons, the trial court did not err in finding that Mr. Harmon w not the biological father of
                                                                                   as

the minor child and that he would have no further obligation to the child.



                                             IV. Conclusion



        The judgm of the trial court is hereby affirmed. Costs of this appeal are taxed to the Appellant, for
                 ent

which execution may issue if necessary.




                                                                             HIGHERS, J.



CONCUR:




FARMER, J.




LILLARD, J.




                                                       8
