Armond Budish

 

 

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DNA proves he's not dad, but he still owes support  

04/27/03

Special to The Plain Dealer

Only the parent of a child would ever be required to pay child support, right? You'd probably never imagine that a person could be forced to pay child support for someone else's child. Yet in a shocking opinion, an Ohio court recently required a man to do just that. Let's look at this case and the far-reaching effects it may have.

Terry and Victor Poskarbiewicz were married in March 1975, but remained together only seven months. While the divorce proceedings were pending, Terry had a daughter born in May 1976. Victor claimed the child was not his. Their divorce was finalized in 1978.

The law presumes that a child born during a marriage is the child of both the husband and wife, and the Lucas County Domestic Relations Court determined that Victor did not provide sufficient evidence to prove that he was not the father. So the court ordered him to pay child support.

In 1994, Victor again went to court to contest his paternity. Again he lost. This time the court based its ruling on the legal doctrine of "res judicata," which says that judgments cannot be tried over and over because the legal system places a premium on finality of court orders.

In 1999, Victor and his daughter submitted DNA samples for analysis. The results indicated that there was no chance that Victor was the father.

Armed with this new evidence, Victor went back to court to ask that the previous child support order be set aside, that back support he had not paid be expunged and that moneys intercepted by the Internal Revenue Service from tax refunds to pay the support be returned to him.

You might think this would be an easy case. But in a decision last month, the 6th Ohio District Court of Appeals (Lucas County) ruled that Victor would have to pay child support because a court had previously decided that Victor was the child's father, even though new evidence proved that decision to be wrong.

The court explained: "While we are mindful of the occasional situation in which an individual may be ordered to pay support for a genetically unrelated child, the need for stability and repose in child support and paternity actions far outweighs the harm of disturbing long-standing court orders."

In a somewhat troubling conclusion, the court stated, "The courts are in the best position to look out for the best interests of a child. The best interests are not automatically served by severing a parent-child relationship just be cause the parent and child were mistaken about their joint genetic heritage."

This case rewards a person for successfully hiding or covering up the facts of a disputed issue. Terry Poskarbiewicz knew or should have known that Victor may not be the father, yet she failed to raise that possibility during the initial trial.

The court acknowledged that, given the unrefuted results of genetic testing, Terry must have known that there was at least a possibility that Victor was not the father of the child. Yet she presented no testimony to that effect during the paternity adjudication. It also acknowledged that from a fairness standpoint it would seem that the case should be decided in Victor's favor because he has paid support over nearly two decades for a child who was not his.

The appeals court decision may have ramifications far beyond the Poskarbiewicz case, and even beyond child-support cases generally. Let's say, for example, that you buy a house, then two weeks later the basement floods. You sue the seller for fraud, to rescind the deal. But the seller claims he never had a flooding problem and you can't prove otherwise. So you lose.

Then, years later you meet a former neighbor who says that the fellow who sold you the home had constant water problems. In fact, he specifically told the neighbors, "I'll be glad to get rid of this basement pond to some unsuspecting victim."

Under the rationale of the court in the Poskarbiewicz case, the need for finality in judicial decisions outweighs the benefits of undoing an unjust ruling. A party may be rewarded for hiding the facts and deceiving his opponent.

Budish is a partner in the law firm of Budish & Solomon in Pepper Pike.

To reach Armond Budish:

info@budishandsolomon.com

© 2003 The Plain Dealer. Used with permission.