Tod Hall v. Doug Freeman

Tod HALL v. Doug FREEMAN

96-179                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 3, 1997


1.   Parent & child -- children born of marriage presumed
     legitimate child of parties to marriage. --  There is a legal
     presumption that a child born during marriage is the
     legitimate child of the parties to that marriage. 

2.   Parent & child -- statutes creating paternity action in
     harmony with presumption of legitimacy -- chancellor erred in
     permitting paternity action to be pursued on behalf of the
     child. -- Where the petition for establishment of paternity
     could not be filed by the child whose paternity was presumed
     under the categories providing for such petitions found in
     Ark. Code Ann.  9-10-104 (Repl. 1993), and nothing in the
     statutes creating the paternity action purported to do away
     with the presumption of legitimacy of a child born during
     marriage, it was error for the chancellor to permit the
     paternity action to be pursued on behalf of the child; the
     case was reversed.


     Appeal from Pulaski Chancery Court, Juvenile Division; Rita
Gruber, Chancellor; reversed and remanded.
     Melinda R. Gilbert, for appellant.
     Randell Templeton, for appellee Doug C. Freeman.

     David Newbern, Justice. 
     In 1994, almost six years after being divorced from his ex-
wife, Jamie McFall, Doug Freeman sued her and Tod Hall.  The
complaint alleged that Tod Hall was the father of Stuart Freeman,
a child conceived and born during the marriage of Doug Freeman and
Jamie McFall.  A guardian ad litem was appointed to represent
Stuart's interests.  The guardian moved, along with Mr. Freeman,
for blood (DNA) tests to determine the paternity of the child.  The
Chancellor held Mr. Freeman's complaint was barred due to the res
judicata effect of the divorce decree which recited the child was
"born of this marriage."  She held, however, that Stuart was not
barred, so the paternity action could be pursued on his behalf. 
Based on the DNA evidence, Mr. Hall was held to be the father of
Stuart.  The order changed the child's name from Freeman to Hall,
relieved Mr. Freeman of the support obligation, and required Mr.
Hall to assume it.  We reverse and remand because a child conceived
and born of a marriage, and thus presumed to be the child of the
marital partners, has no standing to bring a paternity action.
     Mr. Freeman and Ms. McFall were married in 1983.  Stuart was
born in 1987.  At the hearing on Mr. Freeman's petition there was
ample evidence that Mr. Hall and Ms. McFall (then Freeman) engaged
in sexual intercourse during the time Stuart was conceived.  Ms.
McFall testified that she and Mr. Freeman did not engage in sexual
intercourse at that time.  She further testified, as did Mr. Hall,
that Mr. Hall was made aware that he was the father of Stuart
shortly after Ms. McFall learned she was pregnant.  Mr. Freeman was
told that Mr. Hall was the father of Stuart some three or four
months after Stuart's birth; thus he knew of it well in advance of
filing his divorce complaint in which he pleaded that "The parties
have one minor child, Stuart D. Freeman."  
     Evidence of the DNA test presented at the paternity hearing
excluded Mr. Freeman as the father and concluded there was a 99.97%
probability that Mr. Hall was Stuart's father.
     Mr. Hall presents many arguments in favor of reversal.  As we
reverse solely on the standing issue, we need not address the other
contentions.  Mr. Freeman has not cross-appealed the Chancellor's
decision barring his claim on the basis of the res judicata effect
of the divorce decree.
     In her order, the Chancellor cited cases from other
jurisdictions to the effect that a child is not barred from
bringing a paternity suit even though a prior divorce decree had
described the child as being "of the marriage."  State ex rel.
Cline v. Pentasuglia, 457 S.E.2d (W.Va. 1955).  See also People in
re: M.C., 895 P.2d 1098 (Colo. App. 1994).  We have no quarrel with
the principles of law stated in those cases.  Paternity actions
are, however, governed by statute in Arkansas.  Ark. Code Ann. 
9-10-101 through 9-10-120 (Repl. 1993 and Supp. 1995).
     Section 9-10-104 provides as follows:

     Petitions for paternity establishment may be filed by:       
     (1) A biological mother;
     (2) A putative father;
     (3) A person for whom paternity is not presumed or           
      established by court order; or
     (4) The Department of Human Services.

     Stuart, who through his guardian ad litem effectively became
the petitioner in this case, obviously does not fall within the
first, second, or fourth category.  To fall within the third
category, Stuart must be one for whom paternity is neither presumed
nor established by court order.  Stuart is a person for whom
paternity is presumed.   
     In Thomas v. Pacheco, 293 Ark. 564, 740 S.W.2d 123 (1987), Ms.
Pacheco alleged that Mr. Thomas was the father of her child
conceived and born during her marriage to Mr. Pacheco, and it was
so held at the trial level.  A blood test showed Mr. Pacheco was
not the father and a 95.5% probability that Mr. Thomas was.  We
held that the blood test evidence should have been excluded because
of failure to follow statutory guidelines in the procurement of it. 
We also held that testimony of Mr. and Ms. Pacheco to the effect
that they had no access to one another at the time of conception
was inadmissible because of Lord Mansfield's rule.  The majority
opinion noted the modern-day criticism of the rule, and the
dissenting opinion pointed out, "Any rule adopted more than two
hundred years ago that espouses fiction over fact needs to be
reexamined."
     Lord Mansfield's rule is a rule of evidence not at issue here. 
The important aspect of the Thomas case is this statement:

          [T]here is more at issue than a rule of evidence. 
     Marriage is still considered an honorable institution;
     children born during marriage should be deemed legitimate, and
     legal efforts to declare such children illegitimate are not
     and should not be made easy.
          Belief in that principle is so great that we have created
     a legal presumption to protect it.  This presumption, that a
     child born during marriage is the legitimate child of the
     parties to that marriage, is one of the strongest presumptions
     recognized by the law.  See Jacobs v. Jacobs, 146 Ark. 45, 225 S.W. 22 (1920).

See also Willmon v. Hunter,  297 Ark. 358, 761 S.W.2d 924 (1988).
     Nothing in the statutes creating the paternity action purports
to do away with the presumption of legitimacy of a child born
during marriage.  We can only assume that presumption is the one to
which reference is made in  9-10-104(3) and that the General
Assembly has indeed seen fit to preserve it as a bar to an action
by a child born during a marriage.  Because it was thus error for
the Chancellor to permit the paternity action to be pursued on
behalf of Stuart, we must reverse.
     Reversed and remanded.  
     Brown, J., dissents.

=================================================================
          Robert L. Brown, Associate Justice, dissents.
     The decision today forces the child, S.F., now age 9, to live
a lie for the remainder of his life in light of the fact that the
DNA proof is clear that Tod Hall is his natural father.  The
majority holds that S.F. has no standing under the governing
statute to petition the court to determine who is his natural
father.  See Ark. Code Ann.  9-10-104 (Repl. 1993).  But here,
Doug Freeman, who claimed in his complaint that he was merely the
putative father of S.F., filed the paternity action.  Furthermore,
the biological mother, Jamie McFall, asserted in her answer that it
was in S.F.'s best interests to have the DNA testing done and to
determine paternity.  In her prayer, she requested that the testing
be done.  The chancellor then consolidated Freeman's paternity
action with the previous divorce action and appointed a guardian to
represent S.F.'s interests.  DNA testing was performed at the
request of both Doug Freeman and S.F.'s guardian, as well as Jamie
McFall, and it showed beyond a shadow of a doubt that Tod Hall was
the natural father.  Hence, everyone but Tod Hall agreed that the
testing should be done.
     Under these facts, the standing requirements of the paternity
statute were satisfied in my judgment, and the determination of
paternity could proceed.  Moreover, once DNA testing was performed
showing the probability that Tod Hall was S.F.'s father to be
99.97%, any presumption that S.F. was Doug Freeman's natural child
flew out the window.  It is true that the chancellor ultimately
ruled that Freeman could not contest paternity because his previous
divorce decree referred to S.F. as being born of the marriage.  But
that conclusion was reached by the chancellor after the DNA testing
was completed.  A successful defense raised by Tod Hall does not
negate Freeman's standing to file the suit initially and ask for
DNA testing with the concurrence of the biological mother.  Nor
does it vitiate S.F.'s right to have the matter proceed to
conclusion after the DNA results were furnished.
     In a sense, DNA testing has changed the rules of the game
regarding paternity.  Though I believe a statutory mechanism was in
place, under these facts, to afford Freeman, McFall, and S.F. the
right to have S.F.'s natural father identified, the General
Assembly would do well to examine  9-10-104 and weigh the
competing policies involved in this case.
     In short, I believe that Doug Freeman had sufficient standing
to file the paternity action, as an alleged putative father, and to
request DNA testing, with the concurrence of Jamie McFall and the
guardian for S.F.  After the testing, S.F. was not presumed to be
legitimate.  Under these circumstances, S.F. had the right to have
his natural father identified as between Doug Freeman and Tod Hall. 
I respectfully dissent.