                                               I N   T H E      C O U R T O F A P P E A L S
                                                              A T K N O X V I L L E                                                FILED
                                                                                                                                 February 3, 1999

                                                                                                                              Cecil Crowson, Jr.
                                                                                                                              Appellate C ourt
                                                                                                                                  Clerk

L I N D A     C H A N E Y                                                     )       H A M I L T O N C O U N T Y
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            v .                                                               )       H O N . S U Z A N N E      B A I L E Y ,
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R O B E R T       D I C K I N S O N                                           )
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            D e f e n d a n t - A p p e l l a n t                             )       R E V E R S E D   A N D    R E M A N D E D




L I S A     M .     M A C K   O F     C H A T T A N O O G A       F O R       A P P E L L A N T

J O H N K N O X W A L K U P , A t t o r n e y G e n e r a l &                             R e p o r t e r , a n d      T A M M Y L .
K E N N E D Y , A s s i s t a n t A t t o r n e y G e n e r a l ,                         O F N A S H V I L L E ,      F O R A P P E L L E E




                                                        O     P     I     N       I   O   N




                                                                                                                Goddard, P.J.



                        Robert Lee Dickinson, Jr., appeals the ruling of the

Juvenile Court of Hamilton County, Tennessee at Chattanooga,

insisting that the Juvenile Court erred in its determination of

Mr. Dickinson’s Tennessee Rules of Civil Procedure 60.02 motion

for relief from child support payments based upon evidence that

he is not the father of the child he has been supporting.                                                                                The

Juvenile Court ruled that Mr. Dickinson’s motion was barred by

res judicata; therefore, Mr. Dickinson is still obligated to pay

current and past due child support payments.
                     I. Facts:

                     On June 17, 1982, Ms. Linda Faye Sluder1 (Chaney) gave

birth out of wedlock to a child named Carmon Miranda Sluder.                                                                      Ms.

Chaney filed a petition to establish paternity on August 3, 1982,

and in it she named Mr. Dickinson as the biological father.                                                                    From

the record it appears that Ms. Chaney and Mr. Dickinson had gone

on several dates together; yet, at trial Mr. Dickinson denied

that there had ever been sexual contact between the two.

Additionally, Mr. Dickinson and his father, Mr. Dickinson, Sr.,

both offered testimony that Mr. Dickinson was impotent at the

time he and Ms. Chaney had dated.



                     At trial Mr. Dickinson requested the opportunity to

obtain a blood test to determine parentage.                                                The court granted

this request.                  At that time, however, it was the practice of the

courts to make the requesting party pay for the blood test;

therefore, the court ordered Mr. Dickinson to pay the $400 fee

for the test on March 22, 1983.                                      Mr. Dickinson claimed he could

not afford the $400 test and so it was never obtained by either

party.



                     Despite his denials of parentage, on September 12,

1983, the Juvenile Court entered an order adjudging Carmon

Miranda Sluder to be the child of Mr. Dickinson.                                                     The court also

ordered Miranda Sluder’s surname changed to Dickinson.                                                             Child

support payments were set at $15 per week.                                               Mr. Dickinson did not

appeal the ruling of the Juvenile Court.




           1
              I t i s n o t c l e a r f r o m t h e r e c o r d w h e n M s . S l u d e r c h a n g e d   h e r   l a s t   n a m e
t o   C h a n e y ; n o r i s i t c l e a r i f s h e i s p r e s e n t l y m a r r i e d .

                                                                 2
                              In 1993, almost ten years after the Juvenile Court’s

Order, Mr. Dickinson decided to pursue the blood testing he could

not afford at the time of trial.                                                                             Both Ms. Chaney and Miranda

consented to the testing.                                                                   The paternity test results concluded

that Mr. Dickinson was not the biological father of Miranda.

Armed with this new evidence, Mr. Dickinson filed a petition with

the Court on May 17, 1994, requesting that the Juvenile Court

reverse its 1983 decision.



                              On August 10, 1994, Mr. Dickinson filed the Rule 60.02

Motion for relief from judgment that is the subject of this

appeal.                    In the motion, Mr. Dickinson moved the court to consider

the recent blood test excluding him from parentage as grounds for

relief.                    Specifically, Mr. Dickinson requested a judgment from

the court declaring him not the father of Miranda Dickinson.                                                                                                                           Mr.

Dickinson also moved for relief on grounds that he was denied due

process of law under the 14th Amendments of the United States

Constitution and the Tennessee Constitution because he was

ordered to pay for the blood testing.2



                              The Juvenile Court Referee entered Findings and

Recommendations denying Mr. Dickinson’s request for relief on May

24, 1995, finding that his claim was barred by res judicata.                                                                                                                           The

Juvenile Court agreed with the referee and denied Mr. Dickinson’s

Rule 60.02 motion on March 6, 1996, on the same basis.

Subsequent to two other hearings for child support matters, Mr.

Dickinson filed his notice of appeal on February 10, 1997.

                2
                  A l   t h o u g h t h i   s       l e   g a    l       a   r g    u m    e n t m    a y h a    v e m e    r i    t , i t      w o u l d h      a v e b e e n t h e
p   r   o p e r s u      b j e c t f o r        a n a      p p       e a l    ,      n o    t a R      u l e 6    0 M o t    i o    n t e n      y e a r s a      f t e r t r i a l .
R   u   l e 6 0 w        a s n o t d e s        i g n e    d         t o      b y    p a    s s t h    e r e g    u l a r    a p    p e a l s    p r o c e s s    .     T h u s , i n O u r
d   e   t e r m i n a    t i o n W e w i        l l o      n l       y c      o n    s i    d e r t    h e n e    w e v i    d e    n c e t h    a t h e i        s i n f a c t n o t
t   h   e f a t h e      r .

                                                                                                         3
          At the time Mr. Dickinson appealed the denial of his

motion, the Juvenile Court had ordered him to pay $134.33 per

month in child support plus $43.33 per month for back child

support owed on an arrearage of $4,634.    Thus, Mr. Dickinson’s

present total child support payments are $177.66 per month.

Currently, Mr. Dickinson is self-employed as a seller of car

floor mats.   His average gross income per month before taxes and

business expenses is $750.



          Mr. Dickinson has had a physical impairment with his

right arm since he was nine years old.    This arm was operated on

when he was 13, but as of the last several years he has lost

mobility of his fingers, elbow, and shoulder.    There is testimony

in the record that his right arm suffers from 70% disability.

Additionally, Mr. Dickinson has had an ongoing back ailment.

These physical problems have limited Mr. Dickinson in the type of

work that he can perform.



          II.   Law

          Mr. Dickinson argues that even though courts must

respect the doctrine of res judicata and uphold the finality of

judgments, exceptional cases do exist.    The exceptional case will

require a re-examination of the judgment in order to insure that

justice prevails.     There is support for Mr. Dickinson’s argument

in Tennessee Rules of Civil Procedure Rule 60.02 and in the case

law that interprets the rule.    In Duncan v. Duncan, 789 S.W.2d

557 (Tenn.Ct.App.1990), the Middle Section of the Tennessee Court

of Appeals wrote:

     There is little disagreement that the traditional
     preference for finality brings disputes to an end and
     promotes judicial economy. However, as beneficial as

                                  4
     it is, finality is relative and contextual. Our
     courts' interest in making correct decisions in each
     case dictates caution in placing errors beyond
     correction.
          Tenn.R.Civ.P. 60.02 itself strikes a balance
     between the competing desires for finality and for
     correctness.


Duncan, 789 S.W.2d at 562, 563 (citations omitted).



          Yet, Rule 60.02 will not be available for every party.

Only rare cases will merit relief under the strict requirements

of Rule 60.02.   The Supreme Court of Tennessee affirms this

strict interpretation of Rule 60.02 in Toney v. Mueller Co., 810

S.W.2d 145 (Tenn.1991).     In that case the Court wrote:

     Rule 60.02 is not meant to be used in every case in
     which the circumstances of a party change after the
     entry of a judgment or order.   Nor is the rule a
     mechanism for use by a party who is merely dissatisfied
     with the result of a particular case.   Rule 60.02 is
     meant to be used only in those few cases that meet one
     or more of the criteria stated.   As recently stated by
     this Court, "Rule 60.02 acts as an escape valve from
     possible inequity that might otherwise arise from the
     unrelenting imposition of the principle of finality
     imbedded in our procedural rules." Thompson v.
     Firemen's Fund Ins. Co., 798 S.W.2d 235, 238
     (Tenn.1990).   Because of the importance of this
     "principle of finality," the "escape valve" should not
     be easily opened.


Toney, 810 S.W.2d at 146.



          A motion for relief based on Rule 60.02 grounds

addresses itself to the sound discretion of the trial judge.   The

scope of review of an appellate court is to determine if the

discretion was abused.    Underwood v. Zurich Ins. Co., 854 S.W.2d

94, 97 (Tenn.1993)(citing Banks v. Dement Constr. Co., Inc., 817

S.W.2d 16, 18 (Tenn.1991); Toney v. Mueller Co., 810 S.W.2d 145,

147 (Tenn.1991)).



                                   5
            Rule 60.02 reads 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: (1) mistake, inadvertence, surprise
     or excusable neglect; (2) fraud (whether heretofore
     denominated intrinsic or extrinsic), misrepresentation,
     or other misconduct of an adverse party; . . . (5) any
     other reason justifying relief from the operation of
     the judgment. The motion shall be made within a
     reasonable time, and for reasons (1) and (2) not more
     than one year after the judgment, order or proceeding
     was entered or taken.


Because more than one year has passed between the final judgment

in the case and the filing of the Rule 60.02 motion, Mr.

Dickinson may not proceed under 60.02(1) or (2).   Thus, the only

alternative available for Mr. Dickinson is to proceed under Rule

60.02(5).



            While the language of Rule 60.02(5) is indeed open to

broad interpretation, Tennessee courts have chosen in favor of a

narrow interpretation of the rule.    The standards for application

of Rule 60.02(5) are in fact more demanding than the other

subsections of Rule 60.02.    NCNB Nat’l Bank of North Carolina v.

Thrailkill, 856 S.W.2d 150, 154 (Tenn.Ct.App.1993).   Rule

60.02(5) is only to be invoked in cases of overwhelming

importance, or those involving extraordinary circumstances or

extreme hardship. Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97

(Tenn.1993).   Additionally, Rule 60.02(5) was not designed to

relieve a party from free, calculated, and deliberate choices.

NCNB, 856 S.W.2d at 154 (citing Magnavox Co. of Tennessee v.

Boles & Hite Constr. Co., 583 S.W.2d 611, 613

(Tenn.Ct.App.1979)).




                                 6
            We believe the facts of this case warrant Mr. Dickinson

relief under Rule 60.02(5).    Not only is his case entirely

exceptional, it is also of overwhelming importance for the courts

of this state to acknowledge legally what science provides

conclusively.



            In Johnson v. Johnson, an unreported decision of the

Western Section of the Court of Appeals, filed in Jackson on

January 7, 1997, the Court was faced with a similar situation.

The appellant in Johnson contested a consent order that he had

signed on February 26, 1991, acknowledging himself as the father

of the child in question.    In 1995, paternity testing established

that another man was in fact the father of the child.    Despite

the 4 year hiatus and the appellant’s failure to obtain a blood

test during the original paternity action, the Court of Appeals

ruled in favor of the appellant’s Rule 60.02(5) motion.    In its

decision the Court wrote:

     We are not persuaded by Mother’s argument that some
     things in life simply are not fair or that Appellant is
     estopped to deny paternity because of his execution of
     the consent order. The record does not show that the
     appellant knew he was not this child’s biological
     father at that time. We believe the circumstances
     shown here to exist are those for which Rule 60.02 was
     clearly designed.


Johnson.



            We likewise agree that the circumstances of Mr.

Dickinson’s case are clearly those for which Rule 60.02 was

designed.    The factual situation in Johnson is different from the

present case, however, the application of justice should not be.

Mr. Dickinson is not the biological father of Miranda, nor has he

ever maintained a relationship with her.    His contact has been

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purely of a financial nature.   Because of Mr. Dickinson’s obvious

physical disabilities and low monthly income, the burden of child

support payments must appear enormous if not insurmountable.

Because Rule 60.02(5) was developed in order to alleviate cases

involving extreme hardship, see Underwood v. Zurich Ins. Co., 854

S.W.2d 94, 97 (Tenn.1993), this Court will apply Rule 60.02(5) to

Mr. Dickinson’s situation and grant the relief requested.



          The public policy that promotes the decision in Johnson

is the same one that promotes this decision today - courts should

respect scientific evidence that resolves beyond doubt questions

of paternity.   The Court in Johnson relied upon TCA 24-7-112

noting that “it is of overriding importance to the father, the

mother, and the state, as well, that one conclusively established

in law not to be the father of a child be not declared as the

father of that child.”   TCA 24-7-112 operates to provide a court

both procedural and substantive rules during a paternity action.

TCA 24-7-112(b)(1), as quoted in Johnson, mandated: “If the

results of the tests and comparisons exclude the defendant as the

father of the child, this evidence shall be conclusive evidence

of non-paternity and the court shall dismiss the proceeding.”



          TCA 24-7-112(b)(1) was amended by the legislature in

July 1997.   The new version reads: “If the results of the first

test exclude paternity and the second test also exclude

paternity, or, if the initial test results are negative on the

issue of paternity establishment and no second test is requested,

this shall be conclusive evidence of non-paternity and the action

shall be dismissed.”   TCA 24-7-112(b)(1)(B)(i).   The amendment to

the statute was designed to handle the complicated situation of

                                 8
two paternity tests that indicate different outcomes or

probabilities. See TCA 24-7-112(b)(1)(B)(ii) & (iii).    The facts

of this case do not warrant a concern for the possibility of a

different test result.   Instead, the basic understanding of TCA

24-7-112 that was quoted in Johnson remains.    A negative test

result is conclusive evidence of non-paternity.



           The General Assembly, through TCA 24-7-112, has seen

fit to legislatively acknowledge the legitimacy and accuracy

science provides to questions of parentage.    We believe that a

respect for established science is a matter of overwhelming

importance to the courts of this state and thus a proper

consideration in this Rule 60.02(5) motion.    See Underwood v.

Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn.1993).    Even though Mr.

Dickinson’s motion does not arise during the original paternity

action as required for 24-7-112 to apply, this alone should not

preclude the Juvenile Court from recognizing what Mr. Dickinson,

Ms. Chaney, and Miranda already know about the true nature of

this case.



           In the interest of justice, this Court may not turn a

blind eye to the fact that Mr. Dickinson is not the father of

Miranda.   While it is true that res judicata promotes the

finality of judgments, it should not be interpreted in a manner

that sustains ludicrous legal results that fly in the face of

reality.



           The decision of the Juvenile Court is reversed.   The

case is remanded for an order granting the relief that Mr.




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Dickinson seeks.                    Costs of this appeal, as are costs below, are

adjudged against Ms. Chaney.



                                                            _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
                                                            H o u s t o n M . G o d d a r d , P . J .


C O N C U R :




_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
C h a r l e s D . S u s a n o , J r . , J .



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W i l l i a m H . I n m a n , S r . J .




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