If a man acknowledges paternity of a child based on the mother's assurance that no one else could be the father, then discovers, after a divorce and order for child support, that he is not the child's biological father, is he entitled to damages? The Supreme Court of Tennessee, in Hodge v. Craig, addressed the question of whether the person acknowledged as the father could pursue a claim for fraud or intentional or negligent misrepresentation against the mother. The trial court awarded the man over $100,000 in damages for child support and other payments made pursuant to the divorce decree. An appellate court reversed the order, but the state Supreme Court reinstated the judgment with a modified damage amount.
Chadwick Craig and Tina Marie Hodge met in high school, when they were both sixteen years old and began dating. Hodge reportedly had a daughter who was almost one year old at the time. They briefly separated in October 1991, and Hodge had sexual relations with another person. When she got back together with Craig, she never told him about this encounter. She learned she was pregnant the following month and told Craig that he was the father. The two were married in December 1991. Hodge gave birth to a son in June 1992. Craig also adopted Hodge's older child. He had a vasectomy in 1999 when he and Hodge decided they did not want more children.
After nine years of marriage, Craig and Hodge separated in October 2000, and their divorce became final in February 2001. Craig was ordered to provide health insurance for both children and pay child support. Hodge remarried in 2002. Craig moved to Georgia in 2003 and remarried. His son, who was in his early teens at that point, came to live with Craig in 2005. Based on a suspicion that he was not the biological father of the child, Craig obtained a DNA sample from the boy while he slept. A test confirmed Craig was not the biological father.
After Craig confronted Hodge with this discovery, she petitioned for modification of the child custody order. A judge returned the child to her custody and terminated Craig’s child support obligation in 2007. Craig filed a counter-petition in February 2008 claiming fraud and negligent or intentional misrepresentation and requesting $150,000 in compensatory damages for child support and other payments. He also requested $150,000 in punitive damages. Craig alleged that Hodge assured him no one else could be the father, and that he would not have married Hodge, adopted her other child, or had a vasectomy but for his belief that he was the child’s father. The trial court entered a judgment for about $26,000 in compensatory damages, $100,000 for emotional distress, and about $8,500 for Craig’s attorney’s fees.
The appellate court reversed the trial court’s judgment, holding that the compensatory damages constituted a retroactive child support modification barred by state law. It also reversed the judgment for emotional distress and attorney’s fees, and it declined to recognize Craig’s claim for “paternity fraud.”
The Supreme Court considered two issues in Craig's appeal: (1) whether Craig could assert a claim for common-law fraud or intentional or negligent misrepresentation for Hodge’s statements about her child’s paternity; and (2) whether the damage award based on child support and medical support amounts constituted an unlawful retroactive modification. The court viewed the question of the fraud or misrepresentation claim as one of public policy. It concluded that the Tennessee Constitution and its legislative history would allow such a claim to apply in this case. It also noted that courts in at least five other states have recognized a cause of action for “paternity fraud.”
The court found that Craig had proved his claim of common-law intentional misrepresentation against Hodge. In reviewing the law prohibiting retroactive child support modification, the court found that the legislative intent was to limit courts’ ability to forgive arearages. Because the evidence showed the Craig never had a serious arrearage on child support, and because the underlying validity of the original child support order was in question, the court concluded that the compensatory damage award was not a modification of child support. It affirmed the trial court’s order, but remanded the case to recalculate the amount of compensatory damages.
Thomas Huguenor is a divorce and child custody lawyer certified by the State of California. For more than 35 years, he has represented people in San Diego finding their way through the California divorce process. Contact us today online or at (858) 458-9500 to schedule a free and confidential consultation.
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