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Paternity Fraud In Tennessee

This post deals with a developing area of law in Tennessee, sometimes called paternity fraud. The Supreme Court of Tennessee in 2012 recognized that a common law action for damages may be maintained under some circumstances where a man has been paying child support as the result of a woman’s false representation that the child for whose benefit the support is ordered is that of the child support obligor.[i] This is a developing area of law, and some questions remain as yet unanswered.

Tennessee law favors biological parents supporting biological children. There are several circumstances, outlined by statute, in which a man is presumed to be the father of a child, and a child support obligation will be imposed in the absence of evidence to the contrary. This presumption may be rebutted or overcome by a preponderance of evidence[ii] – a showing that more likely than not the presumption is incorrect.

Under Tennessee Code Annotated § 36-3-304(a) man is rebuttably presumed to be the father of a child if:

  • The man and the child’s mother are married or have been married to each other and the child is born during the marriage or within three hundred (300) days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
  • Before the child’s birth, the man and the mother have attempted to marry each other in compliance with the law, although the attempted marriage is or could be declared illegal, void and voidable;
  • After the child’s birth, the man and the mother have married or attempted to marry each other in compliance with the law although such marriage is or could be declared illegal, void, or voidable; and:
    • The man has acknowledged his paternity of the child in a writing filed under the putative father registry established by the department of children services, pursuant to § 36-2-318;
    • The man has consented in writing to be named the child’s father on the birth certificate; or
    • The man is obligated to support the child under a written voluntary promise or by court order;
  • While the child is under the age of majority, the man receives the child into the man’s home and openly holds the child out as the man’s natural child; or
  • Genetic tests have been administered as provided in § 24-7-112, an exclusion has not occurred, and the test results show a statistical probability of parentage of ninety-five percent (95%) or greater.

The presumption created by § 36-3-304(a) is, as noted, rebuttable. Under some circumstances, a married man may not know at the time of a child’s birth that the biological father of the child is in fact another man. The Tennessee Supreme Court has opined that “Cases based on a mother’s misrepresentations regarding the identity of a child’s biological father present difficult and intractable problems that are ‘much more complicated than a bad girl, good guy scenario.’” Hodge v. Craig, 382 S.W.3d 325, 338 (Tenn. 2012)[iii] (footnotes omitted). Such a case “implicates the interests of the family, the putative biological father, the mother, the child, the actual biological father, and the State.” Id., at 338.

Misrepresentation is a tort. McCroskey v. Bryant Air Conditioning Co., 524 S.W.2d 487, 491 fn.6 (Tenn. 1975). Misrepresentations to a prospective spouse that he is an unborn child’s biological father go to the essence of the marital relationship. Accordingly, public policy of this State does not prevent the former spouse of a child’s mother from pursuing common-law damage claims against the child’s mother based on her intentional misrepresentations regarding the identity of the child’s biological father. Hodge, supra, at 341.

The action recognized in Hodge v. Craig is a common law action in tort for money damages for intentional misrepresentation, which is sometimes called fraud or fraudulent misrepresentation. This action is the successor to the common law tort action for deceit. Hodge, supra, at 342. The Supreme Court there described the essential elements of the cause of action as follows:

To recover for intentional misrepresentation, a plaintiff must prove: (1) that the defendant made a representation of a present or past fact; (2) that the representation was false when it was made; (3) that the representation involved a material fact; (4) that the defendant either knew that the representation was false or did not believe it to be true or that the defendant made the representation recklessly without knowing whether it was true or false; (5) that the plaintiff did not know that the representation was false when made and was justified in relying on the truth of the representation; and (6) that the plaintiff sustained damages as a result of the representation.

382 S.W.3d at 343. The Court explained how the lower court record in Hodge supported each of the six elements:

. . . When Ms. Hodge discovered she was pregnant, she represented to Mr. Craig that he was the child’s biological father and that no one else could be. This representation was false when it was made, and Ms. Hodge made this representation recklessly without knowing whether it was true or false. She knew that she had had sexual relations with Mr. Hay. Mr. Craig had no reason to know that Ms. Hodge’s representation that he was the child’s biological father was false, and he was justified in relying on the truth of Ms. Hodge’s representation. Mr. Craig was damaged as a result of his belief that Ms. Hodge had told him the truth when she told him that he was the biological father of her child. Putting aside his decision to marry Ms. Hodge, Mr. Craig sustained monetary damages, not the least of which was his court-ordered obligation to pay child support and his payments for the child’s medical expenses and insurance premiums following his divorce from Ms. Hodge.

382 S.W.3d at 343-44.

The Court explained the limits of its holding. Negligent misrepresentations are not actionable, in that the tort of negligent misrepresentation in Tennessee has previously been limited to false statements made in the course of business or commercial transactions. 382 S.W.3d at 344-46. The Court also limited its decision to the factual circumstances before it -- a lawsuit filed by the former spouse of a child’s biological mother seeking damages for intentional misrepresentation of the child’s parentage. The Court expressly declined to address some other circumstances, including similar disputes between persons who were never married or persons who are separated but not divorced. Id., at 344, fn.31. Answers in those areas will await cases in which such facts are presented. Ibid.

With DNA paternity testing in its present state of high reliability, a former husband who has been DNA-excluded as the father of a child in question begins litigation with a substantial head start. Even so, this is a tort claim seeking money from the mother, and the burden of pleading and proving every element of the tort is on the putative father. There are multiple issues which the Tennessee Supreme Court has not had occasion to address in this developing area.

Counsel representing a mother accused of intentional misrepresentation should parse the pleadings carefully to see whether every element of the cause of action has been adequately pled. While a complaint in a tort action need not contain in minute detail the facts that give rise to the claim, it either must contain direct allegations on every material point necessary to sustain a recovery on any legal theory, even though it may not be the theory suggested by the pleader, or contain allegations from which an inference may fairly be drawn that evidence on these material points will be introduced at trial. Leach v. Taylor, 124 S.W.3d 87, 92 (Tenn. 2004); Donaldson v. Donaldson, 557 S.W.2d 60, 61 (Tenn. 1977). There is no duty on the part of the court tocreatea claim that the pleader does not spell out in his complaint. Donaldson, at 62; Trau-Med of America, Inc. v. Allstate Insurance Co., 71 S.W.3d 691, 704 (Tenn. 2002).

Does the complaint allege that the mother made any representation as to parentage at all? If the former husband was merely cuckolded, and the wife remained silent as to her other sexual activity, the first element of the tort fails.[iv] Does the complaint allege that any false statement made by the mother was of a then-existing, present or past fact? There is quite a difference between saying while not yet pregnant, “Let’s have a baby” – a reference to a hypothetical future event – and saying “I am pregnant and you are the father.” Recall that in Hodge Mr. Craig asked about paternity before getting married, and Ms. Hodge responded that she was sure that he was the child’s father and that the child could be no one else’s.

Does the complaint allege that the mother made any particular false representation? Rule 9.02 of the Tennessee Rules of Civil Procedure requires that “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” See, Black v. Black, 166 S.W.3d 699, 705 (Tenn. 2005). Rule 9(b) of the Federal Rules of Civil Procedure, which corresponds to Tennessee’s Rule 9.02, requires a plaintiff: (1) to specify the allegedly fraudulent statements; (2) to identify the speaker; (3) to plead when and where the statements were made; and (4) to explain what made the statements fraudulent. Republic Bank & Trust Co. v. Bear Stearns & Co., Inc., 683 F.3d 239, 247 (6th Cir. 2012). A plaintiff must, at a minimum, allege the time, place and contents of the misrepresentations upon which he relied. “In other words, Plaintiffs must allege the who, what, when, where, and how of the fraud.” In re Prison Realty Securities Litigation, 117 F.Supp.2d 681, 686 (M.D. Tenn. 2000), quotingCity of Painesville, Ohio v. First Montauk Financial Corp.,178 F.R.D. 180, 188 (N.D. Ohio 1998).

Does the complaint allege that the mother then knew what she said was false, or made the statement(s) recklessly without knowing whether it/they were true or false, and that she intended to defraud the putative father? For purposes of tort law in Tennessee, a person acts intentionally when it is the person’s conscious objective or desire to engage in the conduct or cause the result at issue. A person acts fraudulently when (1) the person intentionally misrepresents an existing, material fact or produces a false impression, in order to mislead another or to obtain an undue advantage, and (2) another is injured because of reasonable reliance upon that representation.A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances. S.C. Toof & Co. v. Hodges, 833 S.W.2d 896, 901 (Tenn. 1992). If the mother made inaccurate statements regarding paternity while under the mistaken belief that she was being truthful, the putative father should not recover.

What, if anything, does the putative father allege that he did in reliance upon the false representation(s)? Was that reliance reasonable? Justifiable reliance is a necessary elementin a cause of action based upon fraudulent misrepresentation. McNeil v. Nofal, 185 S.W.3d 402, 409 (Tenn.App. 2005). See also, Brown v. Birman Managed Care, Inc.,42 S.W.3d 62, 66–67 (Tenn. 2001).

What damages does the husband claim to have sustained as a result of the false representation(s)? The categories of damages upheld by the Tennessee Supreme Court in Hodge v. Craig included the child support, medical expenses, and insurance premiums Mr. Craig paid following the divorce, and the Supreme Court remanded to the trial court for whatever other proceedings consistent with the opinion may be required. 382 S.W.3d at 348. The trial court had also awarded damages for emotional distress and attorney fees; however, the intermediate appellate court had reversed damages for emotional distress and attorney fees[v] and had declined to address whether an award for compensatory damages for pecuniary loss not related to child support could be awarded or whether Mr. Craig would have been entitled to compensatory damages for emotional distress had he asserted a claim for intentional infliction of emotional distress. The Supreme Court ruled for procedural reasons that these issues were not properly before the Court. Id., at 333-36.

One issue not addressed in Hodge is when such a tort action needs to be brought. Intentional misrepresentation is a property tort for which an action is untimely unless it is commenced within three years of when the cause of action accrues.[vi] Under long-standing Tennessee law, a cause of action in tort predicated upon misrepresentation accrues and the statute of limitations commences to run when the injury occurs or is discovered, or when in the exercise of reasonable care and diligence, it should have been discovered. McCroskey v. Bryant Air Conditioning Co., 524 S.W.2d 487, 491 (Tenn. 1975). The application of these principles to misrepresentations of paternity will almost certainly be addressed by Tennessee courts.

As noted above, a DNA test showing the impossibility of a husband’s or former husband’s paternity confers a huge advantage on a prospective plaintiff. That obstacle may or may not be surmountable. As the maxim goes, every tub must stand on its own bottom.[vii]

[i] Hodge v. Craig, 382 S.W.3d 325 (Tenn. 2012).

[ii] Tennessee Code Annotated § 36-2-304(b)(3).

[iii] Quoting Melanie B. Jacobs, When Daddy Doesn’t Want to Be Daddy Anymore: An Argument Against Paternity Fraud Claims, 16 Yale J.L. & Feminism 193, 196 (2004).

[iv] Michael Connally’s fictional criminal defense lawyer, Mickey Haller, had a wide-mouthed fish mounted on the wall of his office with the inscription, “If I had just kept my mouth shut, I wouldn’t be here.”

[v] The author of this blog post is unaware of any statute or recognized ground of equity that would support an award of attorney fees in a common law tort case for misrepresentation.

[vi] Tenn. Code Ann. § 28-3-105.

[vii] See, Farris v. State, 535 S.W.2d 608, 622 (Henry, J., on rehearing).

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