Tod HALL v. Doug FREEMAN
96-179
Supreme Court of Arkansas
February 3, 1997
Petition for rehearing denied March 24, 1997
936 S.W.2d 761
Affirmed.
THORNTON, J., not participating.
Melinda R. Gilbert, for appellant.
Randell Templeton, for appellee Doug C. Freeman.
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 (thеn 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. Freemаn 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 thе 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 Chancel-
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 710 (W.Va. 1995). 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.
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 pаternity 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 fаther 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 оne 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
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 suсh children illegitimate are not and should not be made easy.
Belief in that principle is so great that we have created a legal presumptiоn 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 сhild born during marriage. We can only assume that presumption is the one to which reference is made in
Reversed and remanded.
BROWN, J., dissents.
ROBERT L. BROWN, Justice, dissenting. The decision today forces the child, S.F., now age 9, to live a lie for the remainder of his lifе 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 tо determine who is his natural father. See
Under these facts, the standing requirements of the paternity statute were satisfied in my judgment, and the determination of paternity could prоceed. 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 biologicаl 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 оf 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
In short, I believe that Doug Freeman had sufficient standing to file the paternity action, аs 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.