Mississippi Department of Human Services v. Henry Ray
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CA-00362-COA
DEPARTMENT OF HUMAN SERVICES, STATE
OF MISSISSIPPI AND RUBY J. MURPHY
APPELLANTS
v.
HENRY RAY
APPELLEE
DATE OF JUDGMENT:
02/01/2007
TRIAL JUDGE:
HON. JANE R. WEATHERSBY
COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CHANCERY
COURT
ATTORNEYS FOR APPELLANTS:
TAMEKIA ROCHELLE GOLIDAY
PETER JOSEPH BAGLEY
ATTORNEY FOR APPELLEE:
HOWARD Q. DAVIS
NATURE OF THE CASE:
CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION:
JUDGMENT ENTERED AGAINST
MURPHY AND DHS
DISPOSITION:
REVERSED AND RENDERED-12/16/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, P.J., ROBERTS AND CARLTON, JJ.
CARLTON, J., FOR THE COURT:
¶1.
This case comes before the Court from the order of the Chancery Court of Sunflower
County granting Henry Ray’s motion for the reimbursement of child support on the basis of
fraud. The chancellor ordered the Mississippi Department of Human Services (DHS) and
Ruby J. Murphy (collectively the “Appellants”)1 jointly and severally liable to Ray in the
1
We do not ordinarily refer to the parties as “appellants” or “appellees.” However,
we refer to DHS and Murphy as “Appellants” for the sake of clarity.
amount of $23,183.10, representing the child support payments that Ray made to Murphy
through DHS for approximately nineteen years for Murphy’s child, L.J.2 The Appellants
raise numerous issues on appeal. However, we find it necessary to only address the
following issue: Whether the chancellor erred when she entered a judgment against the
Appellants for child support payments that Ray made on the basis that Ray was defrauded
into believing that he was L.J.’s father.
¶2.
While we understand the chancellor’s frustration over disputed paternity cases such
as this one, we find that Ray not only failed to prove fraud, but also, he failed to prove his
claim of fraud would not be time-barred by the statute of limitations for fraud. Therefore,
we reverse the judgment entered by the chancellor and render judgment in favor of DHS and
Murphy.
FACTS
¶3.
Murphy and Ray were involved in a romantic relationship that lasted approximately
two years. During their relationship, Murphy became pregnant. Ray testified that Murphy
told him that she became pregnant when a condom had burst when she and Ray were having
sex. Ray testified that he did not remember any condom bursting during their relationship
and did not believe that any ever had. Murphy gave birth to L.J. in December 1985. Shortly
thereafter, Ray and Murphy ended their relationship. In January 1986, Murphy presented
DHS with an executed affidavit and affirmation of paternity naming Ray as L.J.’s father.
2
In order to protect the privacy of Murphy’s child, though he is now an adult, we
have substituted his initials in place of his name throughout this opinion.
2
DHS then contacted Ray, who executed a stipulated agreement of support and admission of
paternity and agreed to pay $100 per month in child support. Ray also agreed to provide
health-care coverage and medical support for L.J.
¶4.
Ray made child support payments to Murphy through DHS for approximately
nineteen years until a friend suggested that he was not L.J.’s father. Consequently, in
January 2005, Ray filed a petition for genetic testing, which the chancellor granted. The
genetic test results excluded Ray as L.J.’s natural father. Ray then filed a petition to
terminate child support. A hearing was held on this petition. At the conclusion of the
hearing, the chancellor terminated Ray’s child support obligation and admonished Murphy,
stating:
It’s your responsibility to know. If you’re going to practice sex with a lot of
different people, it’s your responsibility to know who the father is or to find
out the truth. I’m going to grant this relief and I’ll probably grant some more
if they ask me for it.
....
And if you’ve got some friends that have done this you can tell them I’m
fixing to start putting judgments on you women that name men to be the father
and they’re not the father.
¶5.
Ray later filed a “motion to reimburse funds,” seeking reimbursement from the
Appellants in the amount of $23,183.10 for child support payments that he made over the
previous nineteen years. A hearing was held on Ray’s reimbursement motion. After hearing
the arguments of counsel (no witnesses were called), the chancellor granted Ray’s motion
for reimbursement, stating:
3
And above all things this is a court of equity, and certainly what happened to
[Ray] was not equitable. The mother perpetrated a fraud on [Ray] and was
allowed to do so by [DHS], and this Court is going to grant the motion
ordering [Murphy] and [DHS] to reimburse [Ray] in the amount of $23,183.10
and a judgment in that amount is granted.
¶6.
The chancellor later entered an order memorializing her bench ruling. The parties
then filed the following motions: (1) Murphy filed a motion for reconsideration or, in the
alternative, a motion for findings of fact and conclusions of law; (2) DHS filed a motion for
reconsideration and/or to set aside the order to reimburse funds; and (3) Ray filed a motion
to amend his motion to reimburse funds to specifically plead fraud. The chancellor granted
the Appellants’ motions for reconsideration and granted Ray’s motion to amend.
¶7.
At the reconsideration hearing, Murphy testified that during her relationship with Ray,
she had sex one time with a man named Johnny Lloyd.3 According to Murphy, she believed
that Ray was L.J.’s father because she regularly had sex with Ray over the course of their
two-year relationship, sometimes without a condom. Murphy testified that she believed that
Ray was L.J.’s father until the results of the 2005 paternity test proved otherwise.
¶8.
As for Ray’s belief regarding L.J.’s paternity, Ray made five explicit admissions
during his testimony that he seriously doubted L.J. was his son both before and after L.J.’s
birth. Ray also made three explicit admissions that he never seriously doubted L.J. was his
son. Additionally, Ray testified during cross-examination by Murphy’s attorney, Tamekia
Goliday, that Murphy told him she had become pregnant because a condom had burst when
3
The parties agree that the child’s natural father is Johnny Lloyd, now deceased.
4
they had sex. Ray testified as follows:
Goliday:
Ray:
Naw, she the one said dat [sic] – she the one said dat [sic] it
burst. I didn’t say this. Dat [sic] was her.
Goliday:
So you didn’t believe it burst?
Ray:
No.
Goliday:
Then why didn’t you just go ahead and object to the DNA test?
Ray:
Object to it?
Goliday:
I mean, why did you sign the petition agreeing to pay child
support?
Ray:
Because the judge just told me if I didn’t sign I was going to
jail.
Goliday:
The judge told you that –
Ray:
I mean, not the judge. I’m getting it wrong.
Goliday:
Okay.
Ray:
¶9.
So, if you can’t remember if the condom burst, can you
remember if you used one?
It was the child support worker.
Ray also testified on direct examination to his attorney, Howard Davis, that on the day
that he signed the stipulated agreement of support and admission of paternity, he told DHS
workers that he did not believe that he was L.J.’s father. Ray testified as follows:
Davis:
Did you make any comments to [DHS] while [Murphy] was
sitting there about being the father of the child?
Ray:
Yes, sir. I said I don’t [sic] think I was the father of that child.
5
Davis:
Ray:
Yes, sir.
Davis:
But at [DHS] you told them you didn’t think you were the
father?
Ray:
Yes, sir.
Davis:
And what, if anything, did they tell you at that point?
Ray:
They told me she saying [sic] you [sic] the father, so we’re
gonna have to take her word on it, you know. They also asked
me had I slept with her. I told them yeah, and I told them I had
used protection at the time.
Davis:
Okay. Did they tell you anything else?
Ray:
No, no more than if I didn’t sign those papers they was [sic]
going to have the sheriff to pick [sic] me up.
Davis:
If you didn’t sign those papers, what were they going to have
the sheriff pick you up for?
Ray:
For child support.
Davis:
Is that why you signed the papers?
Ray:
Yes, sir.
Davis:
Did you believe at the time that you were the father of the child?
Ray:
¶10.
Was [Murphy] there at the time?
No, sir.
On cross-examination by Byron Hughes, the attorney representing DHS in the matter,
Ray testified to the following:
Hughes:
Any day out of those nineteen years you could have walked in
6
that child support office and say [sic] I want a paternity test.
Why didn’t you do it?
Ray:
Hughes:
You did?
Ray:
Yes, sir.
Hughes:
When did you do it?
Ray:
I did it to them. They told me I had to get an attorney, so –
Hughes:
That’s true.
Ray:
– that’s what I did. I just got it.
Hughes:
In 2005. But this was done in 1986. What took you so long?
Ray:
Well, I told you like I said I wasn’t gonna take a chance of
spending no [sic] money and not really knowing whether this
was my child or not.
Hughes:
But you spent money for nineteen years.
Ray:
Well, I didn’t really know nothing [sic] about legal action for
[sic] as how much it was going to cost. I thought it was going
to cost a lot of money for a lawyer, so I didn’t risk that chance
of –
Hughes:
So, you voluntarily paid your child support every month for that
period of time?
Ray:
¶11.
I did.
Yes, sir.
Moreover, on redirect with his attorney, Davis, Ray testified again that he did not
believe L.J. was his son when he signed the paternity agreement. The transcript reveals the
following exchange:
7
Davis:
Ray:
No, sir. . .
Davis:
Okay. And he asked you why you didn’t have – go hire an
attorney. Did you have any money to hire an attorney back in
1986?
Ray:
¶12.
[Hughes] asked you if you believed all those years that L.J. was
yours and I – did you really believe all those years that he was
yours?
No, sir.
On recross-examination with Murphy’s attorney, Goliday, Ray stated once again that
he did not believe L.J. was his child when he was presented with the paternity agreement
at DHS. Ray testified as follows:
Goliday:
Ray:
No more than when I went in the first time.
Goliday:
Okay. So let’s talk about that. When you went in the first time,
you said that you didn’t believe that it was your child, is that
correct?
Ray:
¶13.
For that fifteen-year period [before 2000], you never questioned
paternity?
Correct.
However, within a few moments of the above testimony, Ray testified that he did not
doubt that L.J. was his child. The exchange was as follows:
Goliday:
[S]o your testimony is you don’t know if [the condom] broke or
not? Is that correct?
Ray:
That’s correct.
Goliday:
And so that would mean you always thought that was a
possibility this was your baby?
8
Ray:
Goliday:
Okay. And you never really questioned that – seriously
questioned that possibility?
Ray:
¶14.
Yes.
No.
Additionally, Ray admitted that he went to the DHS office voluntarily, and not under
duress, after receiving correspondence from DHS regarding the paternity of L.J. The
transcript provides:
Goliday:
Ray:
No, I didn’t go voluntarily ‘cause they wrote me a second letter
to get me there.
Goliday:
But I’m saying the sheriff didn’t pick you up and take you over
there, did he?
Ray:
¶15.
[Y]ou went to that DHS office voluntarily because you believed
it was your baby?
No. They didn’t.
Again, when Hughes cross-examined Ray, Ray admitted he was not under duress
when he went to DHS regarding the paternity of L.J., as the following exchange
demonstrates:
Hughes:
[B]ack in 1986 you and [Murphy] went to the child support
office [and] signed papers that L.J. was your child, is that
correct?
Ray:
Yes, sir.
Hughes:
And you voluntarily – have already testified nobody made you
go to that office, did they?
9
Ray:
Hughes:
[Y]ou voluntarily signed the [admission of paternity]?
Ray:
Yes, sir.
Hughes:
Saying you were the father of L.J.?
Ray:
¶16.
No, sir. Nobody made me went [sic].
Yes, sir.
Murphy and her case worker, Catherine Labella, were present when Ray signed the
admission of paternity. Murphy testified that Labella told Ray that he could request a
genetic test if he disputed paternity. Similarly, Beverly Bennett, a case worker for DHS
testified that DHS gives all fathers the option of genetic testing.4 Essentially, Ray chose not
to exercise his constitutional right to contest paternity when he was given the opportunity
to do so and committed himself to paying child support for almost two decades.
¶17.
At the conclusion of the reconsideration hearing, the chancellor again granted Ray’s
motion for reimbursement and ordered that the Appellants were jointly and severally liable
for $23,183.10. The chancellor stated her reasoning from the bench as follows:
The mother’s testimony is that [DHS] did not ask her when she went into the
office to initiate these proceedings if she ever had sex with anyone else. The
worker told her to get benefits she would have to sign an affidavit alleging
who the father was. This Court does not think it is sufficient for [DHS] to take
a mother’s affidavit, pursue a man for child support - - actively pursuing the
man here - - [Ray], and then when the DNA results prove it negative, [DHS]
claims no responsibility. This is a growing trend in this jurisdiction. If DHS
is going to actively pursue child support then they either need to investigate
more fully and/or provide DNA tests. . . .
4
At oral argument, DHS confirmed that it was the practice to offer genetic testing at
that time.
10
This Court is a [c]ourt of equity and there is nothing equitable about a man
paying over $23,000 in child support for the benefit of a child that is not his.
The Court finds that [Murphy] either knew that her statement was false or
should have known that her statement was false when she named [Ray] as the
father. [DHS] actively went along with that. The Court finds that [Murphy]
with the assistance of [DHS] perpetrated a fraud on [Ray]. [DHS] and
[Murphy] are liable for $23,183.10, together with all costs.
The chancellor later entered an order that memorialized her bench ruling. The Appellants
now turn to this Court for relief.
STANDARD OF REVIEW
¶18.
A chancellor’s findings will not be disturbed on appeal “when supported by
substantial evidence unless the chancellor abused his [or her] discretion, was manifestly
wrong, clearly erroneous or an erroneous legal standard was applied.” Sanderson v.
Sanderson, 824 So. 2d 623, 625-26 (¶8) (Miss. 2002) (quoting Kilpatrick v. Kilpatrick, 732
So. 2d 876, 880 (¶13) (Miss. 1999)). As an appellate court, our duty is to respect limitations
where appeals arise regarding issues of fact. Tricon Metals & Servs., Inc. v. Top, 516 So.
2d 236, 239 (Miss. 1987). Our Court gives great deference to a chancellor’s judgment
“because he [or she] is in a better position to determine what action would be fair and
equitable in the situation than a court of appellate jurisdiction.” Turnley v. Turnley, 726 So.
2d 1258, 1265 (¶23) (Miss. Ct. App. 1998) (citation omitted).
¶19.
Here, the chancellor adopted in toto Ray’s proposed findings of fact and conclusions
of law, thus, triggering a heightened standard of review. It is within a chancellor’s sound
discretion to adopt verbatim the findings of fact and conclusions of law submitted by a party.
11
Thomas v. Scarborough, 977 So. 2d 393, 396 (¶9) (Miss. Ct. App. 2007) (citation omitted).
However, “[w]here the chancellor adopts, verbatim, findings of fact and conclusions of law
prepared by a party . . ., this Court analyzes such findings with greater care and the evidence
is subject to heightened scrutiny.” Gutierrez v. Bucci, 827 So. 2d 27, 31 (¶13) (Miss. Ct.
App. 2002) (quoting Brooks v. Brooks, 652 So. 2d 1113, 1118 (Miss. 1995) (finding that the
chancellor failed to make his own findings and in adopting litigant's findings, applied the
wrong legal standard)). This Court has held that it is error for a chancellor to adopt a party’s
submission when the evidence does not reasonably support the chancellor’s findings.
Brooks, 652 So. 2d at 1117-18 (citations omitted).
DISCUSSION
Whether the chancellor erred when she entered a judgment against the
Appellants for child support payments that Ray made on the basis that
Ray was defrauded into believing that he was L.J.’s father.
¶20.
The Appellants argue that Ray was not entitled to reimbursement for past-due child
support payments because they vested in L.J. as they became due and could not be forgiven.
They also claim that the evidence failed to establish fraud. We agree. We find the evidence
insufficient to support a finding of fraud by clear and convincing evidence. Moreover, Ray’s
claim of fraud is time-barred under the statute of limitations.
A. Ray is not entitled to reimbursement for past-due child support,
absent a showing of fraud, because such payments are vested as they
become due and cannot be forgiven.
¶21.
The Appellants correctly cite McBride v. Jones, 803 So. 2d 1168, 1170 (¶¶9-10)
12
(Miss. 2002) for the proposition that a non-biological father is not entitled to reimbursement
from a child’s biological mother for vested child support payments absent a showing of
fraud. In McBride, the Mississippi Supreme Court held that a former husband was not
entitled to reimbursement from his former wife for child support payments that he had made
for fifteen years under the mistaken belief that he was the child’s natural father. Id. at (¶¶710). In so holding, the court in McBride explained that “child support is for the benefit of
the child and . . . past-due child support payments cannot be modified or forgiven by any
court because the parent's obligation of child support vests in the child when the payment
becomes due.” Id. at (¶9) (citing Williams v. Rembert, 654 So. 2d 26, 29 (Miss. 1995)).
¶22.
Although McBride held that the non-custodial parent could not sue the natural mother
for reimbursement, the court therein acknowledged that the non-biological father could
either sue the natural father for reimbursement or the natural mother for fraud. Id. at (¶10).
In accordance with McBride, we find that each month when the child support payments
became due they vested in L.J., and Ray was not entitled to reimbursement absent a showing
of fraud.
B. Ray failed to prove fraud by clear and convincing evidence.
¶23.
In order to establish fraud, the burden is on the proponent to prove the following
elements: “(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker's knowledge
of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the hearer
and in the manner reasonably contemplated, (6) the hearer's ignorance of its falsity, (7) his
13
reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate
injury.” Koury v. Ready, 911 So. 2d 441, 445 (¶13) (Miss. 2005) (citing Mabus v. St. James
Episcopal Church, 884 So. 2d 747, 762 (¶32) (Miss. 2004)).
¶24.
“[F]raud is never presumed and must be proved with clear and convincing evidence.”
Hamilton v. McGill, 352 So. 2d 825, 831 (Miss. 1977). “Clear and convincing evidence is
such a high standard that even the overwhelming weight of the evidence does not rise to the
same level.” Moran v. Fairley, 919 So. 2d 969, 975 (¶24) (Miss. Ct. App. 2005) (citation
omitted).
¶25.
We find that Ray failed to establish by clear and convincing evidence that he was
defrauded by Murphy into believing that he was L.J.’s father. Murphy repeatedly testified
that she believed that Ray was L.J.’s father at the time she executed the affidavit and
affirmation of paternity and thereafter. Murphy testified that she had sex with Ray once or
twice a week over the course of their two-year relationship, sometimes without a condom.
Although Murphy admitted that she had sex one time with one other man during her
relationship with Ray, she unequivocally testified that she believed Ray was L.J.’s father
until the 2005 genetic test results proved otherwise.
¶26.
More importantly, Ray testified that he did not believe Murphy’s representation that
he was L.J.’s father. For example, in contrast to Murphy’s testimony, Ray testified that he
and Murphy always used a condom when they had sex and that because of this practice, he
never believed L.J. was his child. Similarly, Ray testified that he did not believe Murphy
14
when she told him that a condom had burst during one of their sexual encounters, thus,
causing her pregnancy. Ray also testified that when he was initially contacted by DHS
regarding L.J., he told DHS that he did not believe he was the child’s father. If Ray did not
believe that he was L.J.’s father, then it defies logic to say that Ray reasonably relied on
Murphy’s representation that he was L.J.’s father.
¶27.
Ray also testified that he never seriously questioned L.J.’s paternity. In fact, our
review of the record reveals that Ray made five explicit admissions during his testimony that
he had seriously doubted L.J. was his son. Ray also made three explicit admissions that he
had never doubted L.J. was his son. It is difficult indeed to find that Ray’s testimony rises
to the standard of clear and convincing evidence in proving that he was defrauded by
Murphy into believing that L.J. was his son. See Moran, 919 So. 2d at 975 (¶24).
¶28.
Murphy and her case worker, Labella, were present when Ray signed the admission
of paternity. When Ray signed the agreement of support and admission of paternity in
January 1986, Ray had a constitutional right to have a paternity test performed and paid for
by the State if he could not afford to pay for the test himself. See Little v. Streater, 452 U.S.
1, 16-17 (1981) (stating that an indigent paternity defendant is constitutionally entitled to
have the state pay the cost for blood-type analysis when there is a question of paternity).
Murphy testified that Labella told Ray he could request a genetic test if he disputed
paternity. Bennett, a DHS employee, testified that it is DHS’s policy to offer genetic testing
to all fathers. Additionally, the attorney for DHS stated at one hearing before the chancellor:
15
“If a mother identifies an individual [as the father], the individual has two choices. He can
ask for a blood test or he can admit [paternity].”
¶29.
However, despite testifying that he did not believe L.J. was his son, for the various
reasons stated throughout his testimony, Ray signed the agreement of support and admission
of paternity. When asked about why he signed the admission of paternity, Ray testified that
he had been raised alone by his mother and that he wanted to treat L.J. differently than his
own father had treated him. Ray stated: “My father never spent no [sic] time, didn’t no [sic]
raise me, didn’t spend no [sic] money [on] me.”
¶30.
As to DHS, we find no evidence whatsoever that suggests that any DHS employee
possessed any knowledge that Ray was not L.J.’s father. DHS had before it Murphy’s
affidavit, as well as a stipulated agreement of support and admission of paternity signed by
Ray. There is simply no basis in the evidence to support the chancellor’s finding that DHS
perpetrated a fraud on Ray.
¶31.
Again, although ordinarily a chancellor’s findings are given great deference, in this
case, because the chancellor adopted Ray’s proposed order in toto, we must review her
findings under a heightened scrutiny. See Gutierrez, 827 So. 2d at 31 (¶13). Under our case
law, it is error for a chancellor to adopt a party’s submission when the evidence does not
reasonably support the chancellor’s findings. See Brooks, 652 So. 2d at 1117-18. Here, the
chancellor erred in finding that Ray was defrauded into believing that L.J. was his son.
Specifically, Ray failed to prove the following by clear and convincing evidence: (1) Ray
16
was ignorant of the falsity of the allegation that he was L.J.’s father, and (2) Ray reasonably
relied on Murphy’s allegation that he was L.J.’s father. See Koury, 911 So. 2d at 445 (¶13)
(providing the nine elements of fraud which must be proven in order to establish fraud). For
the above reasons, we find that Ray’s claim of fraud fails as to both Murphy and DHS.
C. Ray’s claim of fraud is time-barred under the three-year statute of
limitations for fraud.
¶32.
The Court uses a de novo standard of review when reviewing statute of limitations
issues. Stephens v. Equitable Life Assur. Soc’y of the U.S., 850 So. 2d 78, 82 (¶10) (Miss.
2003) (citation omitted). Mississippi Code Annotated section 15-1-49 (Rev. 2003) provides
a three-year statute of limitations for claims of fraud. See Warren v. Horace Mann Life Ins.
Co., 949 So. 2d 770, 772 (¶8) (Miss. Ct. App. 2006) (citing Stephens, 850 So. 2d at 82
(¶12)). The three-year period begins to run when the cause of action accrues. Miss. Code
Ann. § 15-1-49. The discovery rule applies so as to toll the statute of limitations only when
the injured party is unaware of his injuries and the conduct that caused the injuries. Davis
v. Hoss, 869 So. 2d 397, 402 (¶15) (Miss. 2004). “The intent of the discovery rule is to
protect plaintiffs who cannot, through reasonable diligence, discover injuries done to them.”
Forrest County Gen. Hosp. v. Kelley, 914 So. 2d 242, 245 (¶15) (Miss. Ct. App. 2005)
(citation omitted).
¶33.
The Mississippi Supreme Court has stated:
The rule is that when, in respect to a matter in which [a man] has a material
interest, a person has knowledge of such facts as to excite the attention of a
reasonably prudent man and to put him upon guard and thus to incite him to
17
inquiry, he is chargeable with notice, equivalent in law to knowledge, of all
those further relevant facts which such inquiry, if pursued with reasonable
diligence, would have disclosed.
First Nat’l Bank of Laurel v. Johnson, 177 Miss. 634, 643, 171 So. 11, 14 (1936) (citations
omitted).
¶34.
Murphy gave birth to L.J. in December 1985. In January 1986, Murphy presented
DHS with an executed affidavit and affirmation of paternity naming Ray as L.J.’s father.
Ray testified that he initially told DHS that he did not believe he was L.J.’s father. Murphy
testified that her case worker told Ray that he could take a paternity test if he doubted that
he was L.J.’s father. Bennett, a DHS case worker, testified that it is DHS’s policy to offer
genetic testing to all fathers. See Little, 452 U.S. at 16-17. If Ray had exercised his
constitutional right to have a paternity test performed, the paternity test would have been
conducted, and Ray would have been excluded as L.J.’s father. Instead, Ray chose, for
variously stated reasons, to execute a stipulation of paternity and an agreement for support.
¶35.
The statute of limitations for fraud is three years. Warren, 949 So. 2d at 772 (¶8).
This period begins to run when the action accrues.
Miss. Code Ann. § 15-1-49.
Approximately twenty years have passed since Ray, according to his own testimony, had
reason to believe that he was not L.J.’s father. See Johnson, 177 Miss. at 643, 171 So. at 14.
Clearly, the statute of limitations has run on Ray’s claim of fraud. Quite simply, Ray chose
to sit on his rights. For the above reasons, Ray’s claim of fraud is time-barred under the
statute of limitations for fraud.
18
CONCLUSION
¶36.
Ray contends that the chancellor was correct in granting his motion for
reimbursement as a matter of equity. However, “equity follows the law.” Davis v. Smith,
891 So. 2d 811, 813 (¶5) (Miss. 2005) (quoting In re Estate of Miller, 840 So. 2d 703, 708
(¶14) (Miss. 2003)). Mississippi law regarding fraud and reimbursement of past-due child
support is clearly defined, and the chancellor was bound to follow it. In sum, we find that
there was insufficient evidence to establish fraud by clear and convincing evidence, and the
chancellor’s finding of fraud was clearly erroneous. Moreover, Ray’s cause of action for
fraud is time-barred under the statute of limitations of fraud. Therefore, we reverse and
render as there is no basis for Ray to prevail in this case.
¶37. THE JUDGMENT OF THE CHANCERY COURT OF SUNFLOWER
COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLEE.
KING, C.J., LEE, P.J., BARNES AND ROBERTS, JJ., CONCUR. GRIFFIS,
J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN
OPINION JOINED BY MYERS, P.J., CHANDLER AND ISHEE, JJ. IRVING,
DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.
GRIFFIS, J., CONCURRING IN PART AND DISSENTING IN PART:
¶38.
The majority reverses and renders this case. I respectfully concur in part and dissent
in part.
¶39.
I concur with the majority insofar as the Department of Human Services of the State
of Mississippi (“DHS”) should have no obligation to Henry Ray except for the portion of the
child support payments that he made which were retained by DHS, if any. This issue should
19
be reversed and remanded for the chancellor to consider what amount, if any, DHS may owe
Ray.
¶40.
I dissent from the majority’s decision to reverse and render the case against Ruby J.
Murphy. I believe that there was sufficient evidence to find that Murphy committed a fraud
on Ray. As a result, I think the chancellor was correct in her ruling. I would affirm the
chancellor’s award of a judgment against Murphy for $23,183.10.
¶41.
This Court will not reverse a chancellor’s findings “unless he was manifestly wrong,
clearly erroneous or an erroneous legal standard was applied.” Madison County v. Hopkins,
857 So. 2d 43, 47 (¶11) (Miss. 2003) (citations omitted). The chancellor found enough
evidence to support a finding that Murphy committed a fraud on Ray when she knew or
should have known that Ray was not the father.
¶42.
Generally, a person cannot seek reimbursement for past child support payments
because each payment automatically vests with the child; thus, one cannot recoup it. But he
can seek reimbursement against the natural father or against the mother for fraud. McBride
v. Jones, 803 So. 2d 1168, 1170 (¶10) (Miss. 2002). If Ray can establish that Murphy
committed fraud, then she is liable to him.
¶43.
Fraud requires that the claimant prove the following elements with clear and
convincing evidence: “(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s
knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by
the hearer and in the manner reasonably contemplated, (6) the hearer’s ignorance of its
20
falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and
proximate injury.” Koury v. Ready, 911 So. 2d 441, 445 (¶13) (Miss. 2005) (citing Mabus
v. St. James Episcopal Church, 884 So. 2d 747, 762 (¶32) (Miss. 2004)); Hamilton v.
McGill, 352 So. 2d 825, 831 (Miss. 1977).
¶44.
Here, the facts support the chancellor’s finding that Murphy committed a fraud on
Ray. What was the representation?
Around the time of L.J.’s birth, Murphy made a
representation to Ray that she was pregnant and that he was the father. At that time, Murphy
was or should have been aware that there was a chance that Ray was not the father. Instead
of being honest, Murphy made a representation that Ray was L.J.’s father.
The
representation was false; Ray was not L.J.’s father.
¶45.
Was that a material false representation? I think so! As a result of the representation,
Ray supported L.J. and made child support payments for nineteen years and paid over
$23,000 in child support.
¶46.
Did Murphy know the representation was false or was she ignorant of the truth?
Obviously, Murphy was aware of the fact that she had multiple sex partners around the time
of L.J.’s conception. Certainly, based on her intimate knowledge of her sexual affairs, she
knew that there was another man who had the opportunity to be the biological father of L.J.
There is no evidence that this matter was ever questioned by Murphy to such an extent that
a blood test was necessary or appropriate.
¶47.
Was it Murphy’s intent that the false representation should be acted on by Ray and
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in the manner reasonably contemplated? As a result of being told that he was the father, Ray
accepted the financial responsibility of fatherhood. Ray signed the paternity agreement and
the child support agreement. This element was met.
¶48.
Was Ray ignorant of the representation’s falsity? Yes. There was no proof presented
that Ray was aware that Murphy was having sex with other men. Did Ray rely on the truth
of the representation? Yes, he paid $23,183.10 in child support over nineteen years. Did
Ray have the right to rely on the representation? Yes. Was Ray injured as a consequent and
proximate result of the false representation? Yes. Ray reasonably relied on Murphy’s
representation and believed that he was L.J.’s father. As a proximate result of Murphy’s
fraud, Ray paid $23,183.10 in child support for a child that was not his. The chancellor
was correct to find that Ray established all of the elements of fraud against Murphy.
¶49.
I continue by looking at DHS’s role in this matter. Murphy perpetuated her fraud
through DHS. This action established L.J.’s paternity and Ray as the father. Murphy lied
on the affidavit given to DHS and failed to disclose her doubts to DHS.
¶50.
Murphy told DHS that Ray was the father, and DHS accepted her representation with
no questions asked. Ray then signed the agreement of support and the admission of paternity
after the DHS case worker threatened to have Ray arrested if he did not sign the agreement
and admission of paternity.
¶51.
The majority makes an interesting argument. In essence, the majority argues that
since Ray thought he used a condom when they had sex, then he never believed or had
22
reason to believe that he was the father of the child.5 From the beginning of this litigation,
Murphy testified that she “didn’t know [Ray] wasn’t the father . . . . He’s the only person
I ever thought was the father.” Murphy also testified that she told the DHS case worker that
Ray was the child’s father, and she signed the forms stating he was the child’s father. She
also testified that for all of those years, she believed Ray was the father of L.J. She testified
that she did not believe anyone else was L.J.’s father, and she stated that she still believes
Ray is L.J.’s father.
¶52.
Ray testified that he was at the DHS office with Murphy. He did say to the DHS case
worker that he did not think he was L.J.’s father, and according to Ray, the DHS case
worker’s response was “you [are] the father, so we’re gonna have to take her word on it, you
know.” Ray stated that: “They also asked me had I slept with her. I told them yeah, and I
told them I had used protection at that time.”
¶53.
When asked if there was anything else the DHS case worker said, Ray testified, “no
5
The majority seems to say that Ray should have been aware he was not the child’s
father because he was wearing a condom during their sexual relations. The testimony
revealed that they had sex in some unusual places and did not always use a condom.
Nevertheless, the majority infers that use of condoms would prevent conception. Indeed, the
majority fails to recognize that condoms are one of the lesser effective birth control devices.
See Planned Parenthood website, www.plannedparenthood.org/health-topics/birthcontrol/birth-control-effectiveness-chart-22710.htm. As for condoms, Planned Parenthood
states: “Each year, 2 out of 100 women whose partners use condoms will become pregnant
if they always use condoms correctly. Each year, 15 out of 100 women whose partners use
condoms will become pregnant if they don't always use condoms correctly.”
www.plannedparenthood.org/health-topics/birth-control/condom-10187.html#effective.
Certainly, the majority recognizes that conception may occur even if the parties properly use
condoms, and that condoms are not an absolute or failsafe birth control device.
23
more than if I didn’t sign those papers they was [sic] going to have the sheriff pick me up.”
Later, when asked why he signed the petition agreeing to pay child support, he stated that
he had been told that “if I didn’t sign I was going to jail.” Clearly there was a question as
to exactly what the DHS case worker told him and why he signed the petition.
¶54.
The majority has accurately cited selected portions of Ray’s testimony. However, I
disagree with the characterization of the evidence used by the majority. It was clearly
contrary to the chancellor’s review and analysis of the evidence. Indeed, Ray had a doubt
as to whether he was the father. However, the only testimony of what the DHS case worker
said at the meeting was from Ray. Ray testified that DHS threatened him and coerced him
to signing the documents. Certainly, Ray’s testimony casts serious doubt on whether DHS
adequately and properly informed Ray of his right to a blood test. The chancellor certainly
considered this evidence in Ray’s favor. I am of the opinion that the chancellor, as the finder
of fact and the person who observed the parties’ demeanor, made a decision that was
supported by substantial evidence.
¶55.
The chancellor was correct in finding that Murphy committed fraud and should be
held liable for the child support payments Ray paid in the amount of $23,183.10. The facts
show that Murphy deceived Ray into believing that he was the father, and she should be held
accountable for her actions.
Therefore, I respectfully dissent and would affirm the
chancellor’s ruling.
¶56.
However, I cannot agree with the judgment against DHS. DHS is a pass-through
24
agency for child support collections. DHS had the right to rely on Murphy to fulfill its
statutory duties. I cannot find that DHS committed a fraud against Ray. Further, it is my
understanding that DHS would only retain, at most, a small portion of the child support
payments made by Ray. Therefore, I would reverse and remand as to the judgment against
DHS for further proceedings by the chancellor to determine the actual amount of Ray’s child
support payments that were retained by DHS. DHS should have to reimburse Ray for any
amounts that it retained.
MYERS, P.J., CHANDLER AND ISHEE, JJ., JOIN THIS SEPARATE
OPINION.
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