Armond Budish
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:
© 2003 The
Plain Dealer. Used with permission.