By Richmond Eustis
Although the Georgia courts haven’t recognized what he considers a man’s right not to support a child he didn’t father, Decatur resident Carnell A. Smith hopes the U.S. Supreme Court will do so.
For 10 years Smith believed his former girlfriend, Toni W. Odom, when she said that he was the man who fathered her daughter. From 1989 to 1998 he voluntarily paid $375 a month in support of the girl. However, in 2000 Smith acted on a hunch and got a DNA test. It showed he was not the child’s father.
He unsuccessfully sought a new trial from DeKalb Superior Court Judge Edward A. Wheeler, who had presided over a paternity suit Odom brought. The state Court of Appeals denied his petition for discretionary appeal. Then the state Supreme Court denied him certiorari. But Smith said he won’t stop until he has done everything he can to resolve what he considers the rulings’ injustice.
“They forced me to declare war on this child support system,” he said. “They’re telling me ‘It’s your fault for trusting her,’ ” he said.
Divorce lawyer Randall M. Kessler, of Kessler/Schwartz, said he thinks Smith has a legitimate shot at persuading the court to hear his case. Kessler represented Smith at the trial level, and though Smith drafted his petition to the high court pro se, Kessler said he will represent him pro bono if the court grants cert.
“I think the Supreme Court is probably more inclined to look at national trends than the state courts,” Kessler said. “This is something they can set a bright-line rule for.”
Lack of Jurisdiction Cited
Part of what makes Smith’s case interesting, Kessler said, is the way he couched his challenge-basing it on the lower court’s lack of subject matter jurisdiction in the case.
“I think it’s pretty clever,” Kessler said. “I think that is the hook.”
According to Smith’s petition, O.C.G.A. ‘ 19-7-40 grants superior courts the power to force a child’s father to pay child support. The statute, however, does not extend to non-parents, Smith wrote.
“Since petitioner is not a biological parent of the subject child, the Paternity Statutes do not vest the Superior Court with subject matter jurisdiction to order the non-parent Petitioner to pay child support,” he wrote. “The Court of Appeals or State Supreme Court should not be permitted to sub silentio ratify the trial court’s jurisdictionally defective exercise of power to continue application of a mistaken child support order against a non-father.”
Once he demonstrated to the court that he was not the child’s father, Smith argued, the court should have been forced to admit it did not have subject matter jurisdiction over the case.
“Granting a new trial is not discretionary in such circumstances, to rectify the mistaken previous judgments and orders; it is necessary in the interests of justice,” Smith wrote.
Consent Order Signed
Though Smith paid child support voluntarily for nearly 10 years, in 1998 the girl’s mother filed the paternity action in Judge Wheeler’s court to increase the monthly amount. A year later, Smith and Odom signed a consent order legitimating the child and declaring Smith the legal father. In 2000, the court increased the monthly support payment to $750 a month.
That’s when Smith, an engineer at Scientific Atlanta, decided to take a DNA test. The results showed no possibility that he was the father of the child. Smith then moved for a new trial. Accusing Odum of fraud, Smith asked the court to set aside the child support order and to award him the approximately $40,000 he had paid in support over the last 10 years. Odum v. Smith, No. CV98127449 (DeKalb Super. Dec. 17, 1998).
In response, the woman’s lawyer, DeKalb County Assistant Public Defender Corinne M. Mull, argued that her client had no idea that the child wasn’t Smith’s. Without knowledge of the lie, she wrote, there’s no fraud. She also noted that Smith had missed his chance to challenge the girl’s paternity. Smith had acknowledged in court that he was the child’s father. Smith could have asked for a blood test when he moved for legitimation and named himself the child’s father, Mull said, but he didn’t (Daily Report, March 8, 2001.)
Smith relied heavily on Smith v. Ga. Department of Human Resources, 226 Ga. App. 491, 493 (1997), in which the Court of Appeals allowed a man to challenge a child support consent order by showing that he was not the child’s biological father. The man had signed a consent order affirming that he was the father of two children conceived while he and his girlfriend were living together. Years later a DNA test showed he was not the father of one of the children.
Writing for the court, Judge G. Alan Blackburn noted, “The law should not punish a purported father for failing to insist on a paternity test when he has no reason to believe that he is not the father.”
Mull cited Ghrist v. Fricks, 219 Ga. App. 415 (1995), in which the court refused to terminate William Ghrist’s parental rights to the son born during his marriage to Gina Fricks, but whom Matthew Fricks fathered.
“Public policy will not permit a mother and an alleged father to enlist the aid of the courts to disturb the emotional ties existing between a child and his legal father after sitting on their rights for the first three years of the child’s life,” Judge Edward H. Johnson wrote for the court.
In Smith’s case, Mull noted, he took no action for 12 years.
Lack of Due Diligence Cited
Judge Wheeler denied Smith’s motion May 14, 2001, saying Smith’s lack of due diligence was one of the reasons he didn’t find out the girl’s parentage until after the court’s order. Therefore, Wheeler, reasoned, Smith did not meet the threshold for an extraordinary motion for a new trial based on new evidence. The Court of Appeals declined to hear the case on discretionary appeal, Smith v. Odom, No. A01D0340 (Ct. App. Ga. petition denied July 10, 2001), and six months later the state Supreme Court denied cert. Smith v. Odom, No. S01C1628 (Sup. Ct. Ga. cert. denied Jan. 9, 2002).
Kessler and Smith said this kind of ruling is routine, in which courts decline to hear scientific evidence that certainly would have affected the outcome of the earlier proceeding had anyone been aware of it. Often courts simply refuse to reopen the issue. In his petition, Smith argued that the practice hurts the man who has been fooled as well as the child.
14th Amendment Cited
“[T]he maintenance of a manifest fiction in order to perpetuate a financial obligation and avoid ‘delegitimization’ of a child violates the 14th Amendment rights not only of the non-father, but also the substantive rights of the child,” he wrote.
It also encourages men not to trust partners who claim they fathered a child, Smith said.
“We’re effectively saying there’s no reason for a guy ever to believe the mother,” he said.
In another Georgia case, Department of Human Resources v. Pinter, 241 GA. App. 10; 525 S.E. 2nd 715 (1999), Blackburn addressed that issue, remarking on “the absurdity of the present state of the law that requires a putative father to pay child support after he has scientifically proven he is not the father.”
“Not only has the putative father been cuckolded, the law adds injury to insult by requiring him to pay child support even after he establishes that he is not the biological father,” he wrote. “To create a fiction in this matter does not make the male the biological father of the child; it simply makes him a victim of the law. It also makes an ass of the law.”
“The legislature should address this issue,” he concluded.
New Legislative Act
The Legislature addressed the issue during its last session by passing HB 369, setting out the procedure for someone like Smith to use conclusive scientific evidence to challenge a legal finding of paternity. The bill, which would become O.C.G.A. ‘ 19-7-53, directs the courts to grant petitioners relief “if genetic testing conclusively shows that the alleged father is not the biological father of the child and certain other conditions are met.”
Those conditions include ensuring that the alleged father hasn’t adopted the child, married the child’s mother, or assumed responsibility for the child with the knowledge that he is not the child’s biological father. If, as in Smith’s case, a supposed father had no reason to disbelieve the child’s mother, failure to challenge the legal finding won’t bar him from reopening the case later if a DNA test contradicts her.
The bill passed the House 163-0, and the Senate 45-5. The House sent the amended bill to Gov. Roy E. Barnes April 15. The governor has taken no action on the bill, and his spokeswoman wouldn’t say if the governor will sign it.
Smith, who is married and has a 2-year-old daughter, said the new statute won’t help him, though it may give others in his situation some relief. He’s hoping the U.S. Supreme Court ensures that men in his situation nationwide can get help from the courts.
“We certainly raised the issue that it’s not an isolated case,” he said. “It’s not a Carnell issue. Carnell just happens to be one of the guys.”