Matthews v. Dukes

314 Ga.App. 782

726 S.E.2d 95

12 FCDR 1006

MATTHEWS

v.DUKES et al.,

Dukes

v.Matthews.

Nos. A11A2264, A11A2265.

Court of Appeals of Georgia.

March 14, 2012.

Capers, Dunbar, Sanders, Bruckner & Bellotti, Amanda M. Bellotti, Augusta, for Matthews.

James M. Spence, Martinez, Lisa L. Clarke, Augusta, for Dukes et al.

BOGGS, Judge.

We granted these discretionary applications to consider the trial court's rulings in this legitimation action. The trial court did not err in denying appellant Kevin Matthews' legitimation petition, determining that Matthews had lost his opportunity interest in becoming the child's legal father, and finding that legitimation was not in the best interest of the child. The trial court also did not abuse its discretion in entering a no-contact order with respect to Matthews. We therefore affirm in part. The trial court erred, however, in ordering Matthews to pay child support, and we therefore reverse that portion of the court's order.

The facts as found by the trial court show that immediately after Amy Dukes (“the wife”) married James Dukes (“the husband”) in 2003, she began an affair with Matthews, who was also married to another.¹ In 2005, the wife became pregnant, and suspected that Matthews might be the father. She informed the husband, but falsely told him “that she'd had a one-time sexual encounter with him and that it was over.” The husband testified, and the trial court found that the husband “has provided for all the child's needs” and the husband, wife and child “have lived together as a family continuously since the birth of the child.”

The wife testified that, after the child was born, she and Matthews arranged for a DNA test—under false names—and discovered that Matthews was the child's biological father.² They did not, however, inform the husband. Matthews did not take any legal steps at that time to acknowledge or legitimate the child. Instead, Matthews saw the child when the wife met him secretly at the marital residence, Matthews' home, and other places where they believed they would not be recognized. These meetings included sex in the marital home while the child was there. Matthews also brought the child of his own marriage along to meetings outside the marital residence. Matthews testified that he gave the wife cash and purchased some toys and clothes for the child over a period of five years. He provided receipts for approximately $250 worth of clothes and toys. He believed that he had also purchased “a few more pull-ups and a few cans of formula” although he had no receipts, and he let her borrow some used clothing and equipment that his daughter had used. He acknowledged that he had not provided any substantial support for the child.

In 2010, the husband discovered that Matthews was seeing the child when the child complained that Matthews had pushed him down and hurt his arm. Suspicious of the wife's behavior while she was on the family computer, the husband investigated and found numerous e-mail exchanges between the wife and Matthews that revealed their years-long affair. He instructed his wife to stop Matthews' contact with the child; she did not immediately comply, but eventually the visits ceased. Only then did Matthews bring this action seeking to legitimate the child. As the trial court found, neither the husband nor the wife expressed an intent to end the marriage.

The trial court held a hearing at which all parties presented evidence and testimony. After the hearing, the trial court entered an order denying the petition to legitimate, finding that Matthews had lost his opportunity interest in becoming the father of the child and that it was not in the best interest of the child for Matthews to become the legal father. In addition, the court ordered Matthews to stay 500 yards away from the child unless he obtained written permission from the father and ordered Matthews to pay child support in the amount of $538 per month until the child was 18 years old, “unless earlier emancipated.” In Case No. A11A2264, Matthews appeals from the trial court's order, asserting six enumerations of error. In Case No. A11A2265, the wife appeals from the trial court's order, asserting two enumerations of error.

Case No. A11A2264

1. We first consider whether the trial court erred in denying Matthews' petition for legitimation under OCGA § 19–7–22. Most legitimation cases apply an “opportunity interest” test derived from the Supreme Court of Georgia decision in In re Baby Girl Eason, 257 Ga. 292, 358 S.E.2d 459 (1987).

Before granting a petition to legitimate, the court must initially determine whether the father has abandoned his opportunity interest to develop a relationship with the child. Then, depending on the nature of the putative father's relationship with the child and other surrounding circumstances, the standard for evaluating whether legitimationis appropriate is either a test of his fitness as a parent or the best interest of the child.

A biological father's opportunity interest begins at conception and may endure through the minority of the child, but it may be abandoned by the unwed father if not timely pursued. On the other hand it is an interest which an unwed father has a right to pursue through his commitment to becoming a father in a true relational sense as well as in a biological sense. Factors which may support a finding of abandonment include, without limitation, a biological father's inaction during pregnancy and at birth, a delay in filing a legitimation petition, and a lack of contact with the child.

(Citations, punctuation and footnotes omitted.) Morris v. Morris, 309 Ga.App. 387, 388–389(2), 710 S.E.2d 601 (2011). “If the trial court concludes that the father has abandoned his opportunity interest, that finding is sufficient to end the court's inquiry and justifies the denial of the legitimation petition.” (Citation and punctuation omitted.) Id. at 389(2), n. 5, 710 S.E.2d 601.

But a different standard applies where, as here, a petitioner is not attempting to legitimate a fatherless child as against unrelated third parties, such as the potential adoptive parents in Eason, but rather seeks to delegitimate the presumptively legitimate child of a marriage and thus to destroy an existing, legal parent-child relationship, as in Baker v. Baker, 276 Ga. 778, 781, 582 S.E.2d 102 (2003). There, the Supreme Court relied upon Davis v. LaBrec, 274 Ga. 5, 7–8, 549 S.E.2d 76 (2001), in which the child had been legitimated pursuant to OCGA § 19–7–22, and Ghrist v. Fricks, 219 Ga.App. 415, 420–421(1), 465 S.E.2d 501 (1995), in which the child was, as in Baker, the presumptively legitimate offspring of a marriage. These cases are distinct from Eason and its progeny because in Baker,Davis, and Ghrist, the child had a legal father and a “legally recognized family unit already in existence.” (Citation, punctuation and footnote omitted.) Baker, supra, 276 Ga. at 780(2), 582 S.E.2d 102. Such cases involve the strong public interest in supporting marriage and the family, as well as the presumption of legitimacy found in OCGA § 19–7–20(a).

The public policy of this state favoring the institution of marriage and the legitimacy of children born during a marriage is the strongest public policy recognized by law. This court's holding ... that all children born in wedlock or within the usual period of gestation thereafter are legitimate,but the legitimacy of such a child may be disputed; where possibility of access exists, the strong presumption is in favor of legitimacy and the proof must be clear to establish the contrary, citing OCGA § 19–7–20(a) and (b), is but one of the latest of a long series of decisions rendered by the appellate courts of Georgia recognizing this public policy and evincing the commitment of Georgia's courts to enforcing it. This presumption of legitimacy is one of the strongest and most persuasive known to our law. Moreover, this statutory presumption is a firmly-established principle of law, evincing a strong state policy favoring marriage and legitimacy.

(Citations and punctuation omitted; emphasis in original.) Ghrist, supra, 219 Ga.App. at 418(1), 465 S.E.2d 501.

In such a situation, our Supreme Court has declared that the “best interests of the child” standard should apply to any attempt to attack the presumption of legitimacy:

[W]e believe it is not contradictory to say that although the Code provides the means for the presumption of legitimacy to be rebutted, the trial court should consider the child's best interests when deciding whether to permit the legal father's status to be challenged by a rebuttal of the presumption of legitimacy. The law allowing the presumption of legitimacy to be rebutted was never intended to sever a child's ties with his or her legal father. In fact, the Code sections ... were primarily intended to provide for the establishment rather than the dissolution of legitimacy and paternity. Moreover, our public policy will not permit a [petitioner] to enlist the aid of the courts to disturb the emotional ties existing between a child and his legal father after sitting on [his] rights for the first phase of the child's life.

(Citations, punctuation and footnotes omitted.) Baker, supra, 276 Ga. at 782(3), 582 S.E.2d 102. Here, “[i]t is undisputed that [the husband] and the child have formed deep familial and psychological bonds that stem from the emotional attachments that derive from the intimacy of daily association.” (Citations and punctuation omitted.) Davis, supra, 274 Ga. at 7, 549 S.E.2d 76.

Put another way, cases such as these can be seen as concluding that the public policy of our state forbids the assertion of an Eason “opportunity interest” by a third party whose adulterous conduct has resulted in a presumptively legitimate child being born within an existing family—at least when that third party knowingly and fraudulently conceals his involvement from the legal father and takes no steps to claim the...