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The following US Supreme Court Petition for Certiorari was
entirely researched and written by Robert A. Hirschfeld, JD,
on behalf of the self-representing Petitioner, Carnell Smith.
It is Hirschfeld's eleventh Supreme Court Petition. His
prior US Supreme Court work includes two Petitions for
Writ of Habeas Corpus seeking release of the Cuban Boy,
Elian Gonzales, to the boy's Cuban father. Hirschfeld, who
was for ten years a prominent Father's Rights attorney,
is available on contract to draft Federal and State
Appellate and Supreme Court briefs at:
Robert Hirschfeld, JD, PO Box 696, Lukeville AZ 85341 or
Email: ***@nolawyer.com
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(ascii version: Cites at end instead of page bottoms)
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No. 01-1520 (Filed 4/9/02)
IN THE SUPREME COURT
OF THE UNITED STATES
_________________________
October Term, 2001
_________________________
CARNELL A. SMITH
Petitioner
v.
TONI W. ODUM
Respondent
______________________________________________
On Petition for a Writ of Certiorari to the
Supreme Court of the State of Georgia
______________________________________________
PETITION FOR WRIT OF CERTIORARI
______________________________________________
CARNELL A. SMITH
(address and phone redacted)
Petitioner, Pro Se
April 9, 2002
QUESTIONS PRESENTED
1. Is every cognizant State Court, when
presented with uncontroverted, credible
genetic testing evidence of non-paternity,
required to render void for want of subject
matter jurisdiction, the previous, underlying,
judgment of paternity?
2. Upon a finding by the cognizant State Court
that a previous judgment of paternity is void,
must that Court Order the refund to the
newly-proven non-father, of all child support,
whether court ordered or voluntarily paid
while under mistaken belief of paternity,
collection expenses, and court expenses?
LIST OF PARTIES
Petitioner Carnell A. Smith, is a resident and citizen of
the State of Georgia and of the United States of America.
Respondent Real Party in Interest Toni W. Odum was
at all pertinent times, a resident and citizen of the State of
Georgia and of the United States of America.
TABLE OF CONTENTS
QUESTIONS PRESENTED i
LIST OF PARTIES ii
TABLE OF CONTENTS iii
TABLE OF AUTHORITIES iv
TABLE OF STATUTES AND ACTS OF vi
CONGRESS ...
OPINIONS BELOW 2
JURISDICTION 2
STATUTORY PROVISIONS INVOLVED 2
STATEMENT OF THE CASE 2
STANDARD OF REVIEW 5
STATEMENT OF FACTS 5
REASONS FOR GRANTING THE WRIT 7
I. Every cognizant State Court, when presented with 7
uncontroverted, credible genetic testing evidence of non-
paternity, is required to render void for want of subject
matter jurisdiction, the previous, underlying, judgment of
paternity.
II. Upon a finding by the cognizant State Court that a 11
previous judgment of paternity is void, that Court must
Order the refund to the newly-proven non-father, of all child
support, whether court ordered or voluntarily paid while
under mistaken belief of paternity, collection expenses, and
court expenses.
CONCLUSION 16
Georgia Supreme Court Order Appendix A
Court of Appeals Order Appendix B
Superior Court Order Appendix C
TABLE OF AUTHORITIES
AG Edwards & Son v. Norwest Rlty Co.,340 NW2d 15
187,189 (S.D.1983)
Allenberg Cotton Co. v. Pittman, 419 U.S. 20 (1974) 17
American Fire & Casualty Co. v. Finn, 341 U.S. 6, 12
17-18 (1951);
Barret v. Independent Order of Foresters, 625 F.2d 73 10
(5th Cir. 1980).
Capron v. Van Noorden, 2 Cranch 126, 127 (1804) 12
Clements v. Phillips, 235 Ga.App. 588, 510 S.E.2d 12,14
311 (Ga.App. 12/03/1998)
De Filippis v. United States, 567 Fed.2d 341, 343-44 15
(7th Cir. 1977)
Department of Medical Assistance v. Presbyterian 11
Home, Inc. 200 Ga.App. 885, 887.
Dixon v. Punchy, 979 P.2d 520, 526 (Alaska 1999) 15
Freytag v. Commissioner, 501 U.S. 868 (1991) 12,13
Gary v. E. Frank Miller Construction Co., Inc., 208 10
Ga.App. 73 (1993)
Georgia Department of Human Resources v. Pinter, 14
241 Ga.App. 10, 525 S.E.2d 715 (Ga.App. 11/18/1999)
Haynes v. Fincher, 241 Ga.App. 179 (1999).
Human Resources v. Browning, 210 Ga.App 546, 547 7
(1993)
In re Ashmore, 163 Ga. App. 194, 195 (1) 14
(293 SE2d 457) (1982)
Jenkins v. MAB and JB, 723 So.2d 649 (Ala. 7/17/98) 15
Kohl v. Amundson, 620 NW2d 606 (S.D. 1/3/2001) 15
Langston v. Riffe v. Langston, Daniel R. v. Tyrone W. 15
359 Md 396, 754 A.2d 389 (June 28, 2000)
Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985 (1983) 15
Libro v. Walls, 103 Nev. 540, 543, 746 P.2d 632, 634 15
(Nev. 1987)
Love v. Love, 114 Nev. 572, 959 P.2d 523 (Nev. 5/19/98) 15
Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 12
82 (1884)
Morton v. W.T. Tharpe & Co., 41 Ga.App 788 (1930). 11
Price v. Mitchell, 154 Ga.App. 523 (1980) 11
Roddenberry v. Roddenberry, 255 Ga. 715, (1986) 7
Smith v. Department of Human Resources, 8,14
226 Ga. App. 491, 493 (487 SE2d 94) (1997)
United States v. Swift & Co., 286 U.S. 106, 114-15 , 15
52 S.Ct 460 (1932)
White v. Armstrong, 1999 WL 33085 (Tenn. Ct. 15
App 1/27/99)
Wise v. Fryar, Petition for Writ of Certiorari, U.S. 15
Supreme Court No. 01-562, cert.den. (Current Term, 2002)
WY. Dept. of Fam. Serv.,MJJ v.PAG & MJA, 15
934 P.2d 1257 (Wy.1977)
TABLE OF STATUTES AND ACTS OF CONGRESS
O.C.G.A. 19-7-40 (Georgia Paternity, Child Support) passim
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IN THE SUPREME COURT
OF THE UNITED STATES
_________________________
October Term, 2001
_________________________
CARNELL A. SMITH
Petitioner
and
TONI W. ODUM
Respondent
______________________________________________
On Petition for a Writ of Certiorari to the
Supreme Court of the State of Georgia
______________________________________________
PETITION FOR WRIT OF CERTIORARI
______________________________________________
CARNELL A. SMITH
(Address and phone redacted)
Petitioner, Pro Se
______________________________________________
Petitioner respectfully prays that a writ of certiorari issue to
review the Decision entered herein by the Supreme Court of
the State of Georgia on January 9, 2002.
OPINIONS BELOW
The 1/9/02 Memorandum Decision of the Supreme
Court of the State of Georgia appears as Appendix A. The
decision of the Georgia Court of Appeals dated 7/10/01
appears as Appendix B. The Decision of the Superior Court
of DeKalb County, Georgia in Civil Action No. 98-12744-9
dated 5/14/01 appears as Appendix C.
JURISDICTION
The judgment of the Georgia Supreme Court was
entered on January 9, 2002. This petition for certiorari is
being filed within 90 days of that date. Jurisdiction is
invoked under 28 U.S.C. ยง1254(1).
STATUTORY PROVISIONS INVOLVED
None specifically invoked.
STATEMENT OF THE CASE
A large, well defined, class of civil cases exists
across the United States in which some Courts routinely
persist in failing their fundamental duty to do justice. In
these cases, the court rules that a status of paternity exists,
and when later confronted with credible, conclusive
scientific evidence of non-paternity, by way of the relatively
new, reliable "DNA Test", refuses by artifice and avoidance,
to reopen the matter, release the erroneously implicated
"non-father" from financial liability, and further refuses to
reimburse the "non-father" for sometimes huge past child
support assessments having no lawful basis.
A civil state court acquires subject matter jurisdiction
over the financial duties of a "putative father" only if that
man is in fact the biological or adoptive father of the subject
child. Releasing such a man from the financial duties of
fatherhood is not discretionary, when, not being an adoptive
parent, that man is demonstrated by the clear result of DNA
testing not to be the biological father. Such demonstration
finally and without recourse constitutes ab initio lack of the
court's subject matter jurisdiction over the subject of the
demonstrated non-father's duty of financial support.
Lack of subject matter jurisdiction may be raised at
any time, for it goes to the most crucial connection by which
a court acquires the right and obligation to exert that court's
power over the affected non-father. The subterfuge of
refusing to deal with wrongful paternity adjudications by
claiming "laches", or excessive passage of time, cannot
lawfully be applied to matters later shown to lack ab initio
subject matter jurisdiction.
Nor may the fiction of paternity be maintained in
light of wrongful conduct by any party, for subject matter
jurisdiction is a fundamental litigative necessity which is
neither created nor destroyed by litigative action; rather, it
either exists as a factual basis, or it does not.
A court, upon finding that it lacks ab initio subject
matter jurisdiction, has a very high duty to expeditiously
declare its lack of such jurisdiction, and to restore the status
quo ante, that is, to declare that the erroneously declared
father is not, and never was, the actual father, and further,
that any child support paid by him under the false impression
of his paternity, or by court order, be wholly refunded to
him.
Petitioner Carnell A. Smith, representing himself,
hereby petitions that a Writ of Certiorari issue to the Georgia
Supreme Court regarding the denial by that Court on January
9, 2002 of leave to appeal from the Order of the Honorable
Edward A. Wheeler, Senior Judge, Stone Mountain Judicial
Circuit , Superior Court, DeKalb County, dated May 14, 2001.
Petitioner respectfully submits that the Superior
Court of DeKalb County committed fundamental error at
law, in denying to Petitioner a new trial, sought on August
28, 2000 (less than three years from entry of the Superior
Court's Consent Legitimation Order dated July 28, 1999, and
its March 2, 2000 Visitation and Child Support Order) based
upon newly discovered DNA evidence of non-paternity.
Further, that each of the involved Georgia Appellate Courts
failed to abide by their respective mandatory duty to examine
a claimed lack of Subject Matter Jurisdiction, by refusing to
grant Petitioner's Applications for Discretionary review.
Petitioner further submits that the Superior Court of
DeKalb County committed fundamental error at law, in
denying retrial of an order of legitimization originally based
upon application and consent of the de-facto non-father
before he suspected Plaintiff/Respondent's fraudulent
concealment.
The Application to the Court of Appeals urged, and
the subsequent State Supreme Court Petition for Certiorari,
or alternatively, Application for Discretionary Appeal
necessarily re-urged, that lack of de-facto biological
paternity deprives the Superior Court ab initio of subject
matter jurisdiction to assess statutory child support from the
non-father, or to enter or perpetuate an order of
legitimization as to the non-father.
Since lack of subject matter jurisdiction may be
raised at any time, it would, if recognized herein, establish
precedent broadly applicable in every State, to all defrauded
biological non-fathers who are wrongfully refused cessation
of child support orders and reimbursement for formal or
informal past payments of child support arising from a
mistaken belief in their paternity status.
Wrongful perpetuation of Georgia Court Orders
assessing child support when the parties and the courts
become aware that Jurisdiction for such orders is lacking
(because the man so ordered is not the biological father
intended by the legislature) rises to constitutional
dimensions, and is a crucial matter of nationwide
importance, justifying this court's resolution by
establishment of a nationwide precedent. No United States
Supreme Court precedent specifically prohibits such a
miscarriage of justice.
This Application is the ideal vehicle for reaching a
precedent upon which all paternity litigants may rely, and is
therefore a matter of national public interest. Public trust and
confidence in our court system is shaken so long as the
fiction which perpetuates the child support order below, is,
along with similar cases, the continuing subject of public
outrage and media attention.
Petitioner was led to believe, during pregnancy of his
former intimate, Respondent Toni W. Odum, that the child
she carried was his. She concealed from him for about a
decade, the possibility that he was not the father. Relying
thereon, Petitioner paid voluntary child support, and later, in
the caption-referenced Paternity matter, paid court ordered
support. By counterclaim, Petitioner in good faith secured
the child's legitimization and court-ordered custodial and
visitation rights.
Only thereafter did Petitioner first become aware of
the possibility of his non-paternity. Two DNA tests have
each conclusively excluded him as father. The Superior
Court on May 14, 2001, denied Petitioner's motion for new
trial, based upon his not having earlier availed himself of
DNA testing before he had reason to suspect he might not be
the father.
STANDARD OF REVIEW
The question of subject matter jurisdiction is not
discretionary, but is rather a matter of law which may be
raised at any time.
STATEMENT OF FACTS
The parties resided together and had a sexual
relationship, which ended when they separated. Shortly after
such separation, Respondent/mother informed Petitioner of
her pregnancy, and claimed that he was the father. She
deliberately concealed the fact that she contemporaneously
had had sexual relations with another man. Thus deceived,
Petitioner acted as father by developing a relationship with
the child and paying voluntary child support. Eventually, the
parties disagreed as to the amount of a mother-demanded
increase in child support, and she on January 28, 1999, filed
the paternity/support action to which this petition pertains.
Petitioner counterclaimed and was granted court-ordered
custodial and visitation rights, as well as an Order of
Legitimization.
Only thereafter was Petitioner advised by third
parties of the possibility that he was not the father. He
secured a DNA test, and his non-paternity was confirmed.
Mother then demanded a second, independent DNA test,
which resulted in the same outcome. She and her counsel
stipulated to temporary cessation of child support, but when
Petitioner refused to absolve her of reimbursement of the
approximately $40,000 he had already paid for a child that
was not his, she and her counsel resisted the entire new-trial
procedure. The order, to which this Petition pertains,
perpetuates the de-facto baseless child support order and
legitimization.
REASONS FOR GRANTING THE WRIT
INTRODUCTION
The Superior Court of DeKalb County committed
fundamental error at law, in denying to Applicant, based
upon purported lack of "due diligence" a new trial of Child
Support and Legitimization based upon newly discovered
DNA evidence of non-paternity.
Lack of de-facto biological paternity deprives the
Superior Court ab initio of subject matter jurisdiction to
assess statutory child support from the non-father, or to enter
or perpetuate an order of legitimization as to the non-father.
The Court of Appeals and the State Supreme Court both
committed fundamental error at law, in denying the
Application for Discretionary Appeal, founded on lack of
subject matter jurisdiction, thereby creating a sub silentio
ratification and perpetuation of the trial court's exercise of
non-existent subject matter jurisdiction.
1.
Every cognizant State Court, when presented with
uncontroverted, credible genetic testing evidence of non-
paternity, is required to render void for want of subject
matter jurisdiction, the previous, underlying, judgment of
paternity.
The Petitioner should have been routinely, and
mandatorily, allowed to proceed with his motion for new
trial because it attacked a previous final judgment which
dealt with paternity and child support, and was based on
evidence which was discovered after the Superior Court's
Final Order. (FN1,2.)
Footnote 1: See Roddenberry v. Roddenberry, 255 Ga. 715, (1986)
Footnote 2: "On an extraordinary motion for a new trial based on newly
discovered evidence, it is incumbent on the movant to satisfy the court: (1)
that the newly discovered evidence had come to his knowledge since the
trial; (2)that want of due diligence was not the reason that the evidence
was not
acquired sooner; (3) that the evidence was so material that it would
probably produce a different verdict; (4) that it is not cumulative only;
(5) that the affidavit of the witness is attached to the motion or its
absence accounted for; and (6) that the new evidence does not operate
solely to impeach the credit of a witness." Human Resources v.
Browning, 210 Ga.App 546, 547 (1993).
The trial court wrongfully denied the new trial, by
finding that Petitioner had failed to exercise due diligence.
More specifically, lack of due diligence was attributed by the
Trial Court to Petitioner's failure to earlier avail himself of a
DNA test on litigative occasions when Petitioner earnestly
and in good faith believed himself to be the biological father,
in reliance upon Mother's fraudulent withholding from him
of information to the contrary.
Petitioner had no reason to believe that he was not
the father of the minor child since the Mother repeatedly
assured him that he was in fact the biological father.
Therefore his duty of "due diligence" did not begin until
after he had first been alerted by third parties that he might
not be the only male to have been sexually active with the
Mother during the period when the child could have been
conceived. Petitioner initiated a DNA test promptly after
being so alerted. (FN3)
Footnote 3: "Where a purported father has no reason to suspect the fidelity
of the mother, it may not be unreasonable, and in fact may be admirable, for
him to acknowledge his paternity without further proof thereof. 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. A contrary
rule would invite suspicion and distrust, and essentially require all
purported fathers, upon divorce or separation to accuse their spouses or
partners of infidelity by demanding proof of paternity." Smith v.
Department of Human Resources, 226 Ga.App 491, 493 (1997).
The trial court extrapolated that the mere fact of
separation of the parties gave to Petitioner "... knowledge, at
the time he was informed of the pregnancy, that the parties
were no longer in a monogamous relationship and therefore
he was on notice that he might not be the father". Order,
Appendix C, p.3 (original numbering), lines 19-22. Nothing
in the trial record supports such judicial extrapolation. It is a
non-sequitur. This court should take judicial notice that
cohabiting couples, married or not, are not necessarily
behaving monogamously, and further, that couples who
separate are not necessarily thrust into a libertine lifestyle.
Such judicial extrapolation should be deemed an abuse of
discretion.
The Petitioner was repeatedly assured by the Mother
that he was the biological father of the minor child. The
Mother voluntarily withheld information that would have
caused the Petitioner to doubt the fact that he was the father
of the minor child.
The admitted fact that the Mother required assistance
of a physician to "determine" (without contemporaneous
DNA or any blood testing) that "Mr. Smith was the Father",
including the counting of days relative to missed
menstruation, is probative of the Mother, Toni Odum
knowing from the very beginning of her pregnancy that there
were two potential fathers. Her "physician's assistance" in
her "determination" would have been unnecessary had
Petitioner been the only man with whom she had
contemporaneously engaged in intercourse, casting doubt
upon her professed certainty as to actual paternity.
Provided with the information that he was not the father
of the child, Petitioner would never have been ordered by the
Superior Court to pay child support and he would never had
agreed to voluntarily pay child support for more than ten
(10) years. The evidence of non-paternity would have
prevented the Mother from obtaining child support from the
Petitioner.
The Mother committed fraud against the Superior
Court in several respects:
First, by failing to disclose the possibility of another
father, she created an omission from the record of the final
hearing.
Second, the Petitioner innocently relied on this
omission to his detriment. For more than ten (10) years,
based upon false pretenses advocated by the Mother, the
Petitioner provided the Mother with over forty thousand
dollars ($40,000.00) in child support. (FN4)
Footnote 4: See Gary v. E. Frank Miller Construction Co., Inc.,
208 Ga.App. 73 (1993).
Third, the Petitioner reasonably relied on the
Mother's assertion that he was the biological father of the
minor child. The Petitioner had no reason to believe that he
was not the father of the minor child, and the Mother never
informed him of the possibility that he may not be the father
of said child. (FN5)
Footnote 5: See Barret v. Independent Order of Foresters,
625 F.2d 73 (5th Cir. 1980).
Throughout the proceedings below, Petitioner
persisted in misinterpreting the claimed "advice by
Petitioner's Counsel" to "secure a DNA test". Nowhere does
the Mother show such purported attorney advice to arise
from any factually-based suspicion of non-paternity. The
Court may take judicial notice that a proposal to seek DNA
evidence is nowadays likely to be a routine procedural
suggestion made by every attorney defending his client
against child support obligation in any paternity case.
To become aware of the public availability of DNA
testing, from a billboard or by suggestion by counsel, is not
the onset of a duty of due diligence. It is the realization, for
the first time, that facts exist probative f a different man
being the father, that should be the trigger for a fresh duty of
due diligence.
II.
Upon a finding by the cognizant State Court that a previous
judgment of paternity is void, that Court must Order the
refund to the newly-proven non-father, of all child support,
whether court ordered or voluntarily paid while under
mistaken belief of paternity, collection expenses, and court
expenses.
As a direct result of the fraud, the Plaintiff was forced
to relinquish a very substantial amount of money to the
Mother, which has inflicted a grave financial harm to him. (FN 6,7)
Footnote 6: See Haynes v. Fincher, 241 Ga.App. 179 (1999).
Footnote 7: "It is a well recognized principle that one may not retain
money or
goods which have come into (her) hands through mistake and which
(she) is not, in good conscience, entitled to retain." Department of
Medical Assistance v. Presbyterian Home, Inc. 200 Ga.App. 885, 887.
The Plaintiff fraudulently obtained over forty
thousand dollars ($40,000.00) from the Defendant through
deceit. When misrepresentation of a material fact has
occurred by one of the parties, then legal fraud has occurred
and the party can recover damages based on that fraud. (FN 8)
Footnote 8: See Morton v. W.T. Tharpe & Co., 41 Ga.App 788 (1930).
Therefore, the Plaintiff should not be allowed to profit from
the fraud she perpetrated against the Court and the Defendant
should be allowed to recover from the Plaintiff the damages
he incurred due to her fraud. (FN 9)
Footnote 9: See Price v. Mitchell, 154 Ga.App. 523 (1980).
Lack of de-facto biological paternity deprives the
Superior Court ab initio of subject matter jurisdiction to
assess statutory child support from the non-father, or to enter
or perpetuate an order of legitimization as to the non-father.
The trial court found, at Order, Appendix C, p.3,
lines 14-18, that:
"... the Consent Order of Legitimization and Child
Custody established paternity and legitimated the
child of these parties."
That cannot be so. Legitimization can only be
accomplished by the biological father. Petitioner is
absolutely not that person. (FN 10)
Footnote 10: See Clements v. Phillips, 235 Ga.App. 588,
510 S.E.2d 311 (Ga.App. 12/03/1998)
There is no doubt that the DeKalb County Court
acquired personal jurisdiction over the Mother by her filing
of the paternity action, and over Petitioner, by service of
process. But personal jurisdiction does not form a foundation
for subject matter jurisdiction. 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, nor does that court have subject matter jurisdiction
to order a "Legitimation" regarding, or initiated erroneously
by, a non-parent.
The Superior Court's subject matter jurisdiction to
assess child support against an "unwed father" does not exist
when such a defendant is not the de-facto biological father.
The Georgia legislature granted power to the Superior Court
in paternity cases to determine contested paternity, but did
not grant power (subject matter jurisdiction) to make any
child-related paternity orders impinging upon a non-parent.
Subject matter jurisdiction cannot be created where it
does not exist, nor is it created by agreement or waiver. (FN 11)
Footnote 11: "...Must a judgment already rendered be set aside because of an
alleged structural error to which the losing party did not properly object?
There is no reason in principle why that should always be so. It will
sometimes be so - not, however, because the error was structural, but
because, whether structural or not, it deprived the [federal] court of its
requisite subject-matter jurisdiction. Such an error may be raised by a
party, and indeed must be noticed sua sponte by a court, at all points in
the litigation, see, e. g., American Fire & Casualty Co. v. Finn, 341
U.S. 6, 17-18 (1951); Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S.
379, 382 (1884); Capron v. Van Noorden, 2 Cranch 126, 127 (1804)."
Freytag v. Commissioner, 501 U.S. 868 (1991) JUSTICE SCALIA, with
whom JUSTICE O'CONNOR, JUSTICE KENNEDY, and JUSTICE
SOUTER join, concurring in part and concurring in the judgment.
(emphasis supplied)
As the U.S. Supreme Court indicated in Freytag, id.,
the issue of Subject Matter Jurisdiction not only may be
raised at any time, all courts have an affirmative duty to
examine the issue when it is raised by a party, or sua sponte.
Purported lack of "due diligence" by a litigant does not
affect that affirmative duty. 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.
Indeed, the Court of Appeals and State Supreme
Court lack power to so ratify on a theory that Petitioner
Carnell Smith "waived" by purported lack of "due diligence"
his right to seek the setting aside of the manifestly baseless
child support order. (FN12)
Footnote 12: "Since such a jurisdictional defect deprives not only the
initial court but also the appellate court of its power over the case or
controversy, to
permit the appellate court to ignore it because of waiver would be to give
the waiver legitimating, as opposed to merely remedial, effect, i. e., the
effect of approving, ex ante, unlawful action by the appellate court
itself." Freytag v. Commissioner, 501 U.S. 868 (1991), id. JUSTICE
SCALIA, with whom JUSTICE O'CONNOR, JUSTICE KENNEDY,
and JUSTICE SOUTER join, concurring in part and concurring in the
judgment.
When paternity is declared, legitimization is ordered,
or child support is imposed, and the Court becomes aware of
dispositive evidence of biological non-paternity, a decision
such as that herein, denying retrial on the basis of alleged
lack of due diligence, violates the court's duty of
jurisdictional self-examination. Just as the execution of a
criminal defendant known before the execution to be
innocent is an affront to our Constitution, the maintenance of
a manifest fiction in order to perpetuate a financial obligation
and avoid "delegitimization" of a child violates the
Fourteenth Amendment rights not only of the non-father, but
also the substantive rights of the child. (FN13)
Footnote 13: "It goes without saying that a child has an interest in not
being
legitimated by someone who is not his father. See, e.g., In re Ashmore,
163 Ga. App. 194, 195 (1) (293 SE2d 457) (1982) (any interested party
may file objection to legitimization petition). The fact that the mother
was a participant in a fraudulent scheme to have the child wrongfully
legitimated does not lessen this interest. Legitimation is not a game, and
the child is not the prize." Clements v. Phillips, id. 235 Ga.App. 588, 510
S.E.2d 311 (Ga.App. 12/03/1998)
Although there was initially an assumption herein by the
Superior Court that it had acquired Subject Matter
Jurisdiction by virtue of the Petitioner's voluntary agreement
to such a declaration of status, once proof of non-paternity is
presented, the Superior Court must, however reluctantly,
admit that it never actually had subject matter jurisdiction.
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. (FN 14)
Footnote 14: "...I write separately to point out the
absurdity of the present state of
the law that requires a putative father to pay child support after he has
scientifically proven that he is not the biological father. As I stated in
Smith v. Department of Human Resources, 226 Ga. App. 491, 493 (487
SE2d 94) (1997), '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.' 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. Once non-paternity is
scientifically established, courts cannot ignore such fact by relying on
policies developed when no such proof was possible. To create a fiction
in this matter does not make the male the biological father of the child; it
simply makes him the victim of the law. It also makes an ass of the
law....While the courts may preach their false policy, they lose the
respect of any citizen with common sense" Georgia Department of
Human Resources v. Pinter, 241 Ga.App. 10, 525 S.E.2d 715 (Ga.App.
11/18/1999) BLACKBURN, Presiding Judge, specially Concurring.
O.C.G.A. 19-7-40 clearly provides that the Superior
Court and the state courts have jurisdiction of paternity and
child support. But once there is proof of non-paternity of the
non-father, neither the Superior Court nor the state appellate
courts remain vested with Subject Matter Jurisdiction
regarding him to require, assess, or perpetuate child support.
The United States Supreme Court, earlier in the
present 2001-2002 term, denied Certiorari in a Texas-based
case wherein review solely invoking the Fourteenth
Amendment to the United States Constitution had been
denied to a divorced man. He had discovered, via post
divorce health-related blood testing, that he was not the
biological father of multiple children born during the
marriage. While the divorced man did not, as herein, raise
lack of subject matter jurisdiction in his Certiorari Petition,
he recited a number of valuable cases showing proper post-
decree reversal of paternity findings and monetary
consequences in States other than Texas. (FN 15)
Footnote 15: Wise v. Fryar, Petition for Writ of Certiorari, U.S. Supreme
Court No. 01-562, cert.den., which cited, among others, the following cases:
White v. Armstrong, 1999 WL 33085 (Tenn. Ct.App 1/27/99);
De Filippis v. United States, 567 Fed.2d 341, 343-44 (7th Cir. 1977);
United States v. Swift & Co., 286 U.S. 106, 114-15 , 52 S.Ct 460 (1932;
Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985 (1983);
WY. Dept. of Fam. Serv.,MJJ v.PAG & MJA,934 P.2d 1257 (Wy.1977);
Kohl v. Amundson, 620 NW2d 606 (S.D. 1/3/2001);
AG Edwards & Son v. Norwest Rlty Co.,340 NW2d187,189 (S.D.1983);
Love v. Love, 114 Nev. 572, 959 P.2d 523 (Nev. 5/19/98);
Libro v. Walls, 103 Nev. 540, 543, 746 P.2d 632, 634 (Nev. 1987);
Langston v. Riffe v. Langston, Daniel R. v. Tyrone W., 359 Md 396,
754 A.2d 389 (June 28, 2000);
Jenkins v. MAB and JB, 723 So.2d 649 (Ala. 7/17/98)
Dixon v. Punchy, 979 P.2d 520, 526 (Alaska 1999)
The Orders herein sought to be vacated are arguably
void ab initio. That does not mean that the court does not
still have a task to perform in rectifying its previous error.
While the Superior Court manifestly lacks Subject Matter
Jurisdiction over matters of current or future support
regarding Petitioner in this case, it retains personal
jurisdiction over the Mother, for having caused Petitioner to
be damaged through jurisdictionally defective invocation of
the Court's power.
CONCLUSION
Petitioner, having been subjected to provably void
Subject Matter Jurisdiction, has standing to raise a facial
challenge against that exercise. Invalidation on constitutional
grounds goes directly to the power of a Court to hear, try,
and adjudicate a matter wholly based upon an ab initio lack
of the necessary biological relationship by which a de facto
father is constitutionally made a party to a paternity action.
Petitioner lacks the capacity to "forfeit" the question of
subject matter jurisdiction. He can, and has, properly and
expeditiously raised the issue for the first time in the trial
court, and at every appellate level thereafter. He could have
raised it for the first time in seeking Certiorari.
For the foregoing reasons, Petitioner should not have
been denied re-opening of the Paternity, Support and
Legitimation case.
The United States Supreme Court should choose
whichever of the remedies sought herein it deems
appropriate, and either grant Certiorari and then upon
briefing and argument, reverse the Georgia Supreme Court's
denial of Discretionary Appeal, or more directly use its own
original discretion to grant a Discretionary Appeal.
Upon recognition of the jurisdictional principles
argued herein, this Court may short circuit any extended
appellate proceedings and fashion such direct remedies it
deems reasonable, including but not limited to directly
ordering the Superior Court to reopen proceedings so as to
stop the child support order, and order that
Petitioner/Applicant be fully compensated for the more than
$40,000 fraudulently received by Mother , plus costs.
Respectfully submitted this 9th. day of April, 2002.
___________________________
Carnell A. Smith
In Propria Persona
(Address and phone redacted)
----------------------------------------------------
Appendix A
SUPREME COURT OF THE STATE OF GEORGIA
CLERK'S OFFICE
ATLANTA
DATE: January 09, 2002
Carnell A. Smith
(Address and phone redacted)
Case No. S01C1628
CARNELL A. SMITH V. TONI W. ODOM
COURT OF APPEALS CASE NO: A01D0340
The Supreme Court today denied the petition for
certiorari in this case.
All the justices concur.
Sherie M. Welch, Clerk
Appendix B
Court of Appeals
of the State of Georgia
ATLANTA, JULY 10, 2001
The Court of Appeals hereby passes the following order:
Upon consideration of the Application for Discretionary
Appeal, it is ordered that it be hereby DENIED.
90029
98127449
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta Jul. 10, 2001
I certify that the above is a true extract
from the minutes of the Court of Appeals
of Georgia.
Witness my signature and the seal of said
Court hereto affixed the day and year last
above written.
Clerk
/S/ Walter Z. Martin, III
Appendix C
IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA
TONI W. ODUM )
Plaintiff ) CIVIL ACTION
vs. )
CARNELL A. SMITH ) FILE NO. 98-12744-9
Defendant )
O R D E R
The above-styled case came before the Court for a
hearing on April 16, 2001 on Defendant's "extraordinary
Motion and Brief for New Trial to Set Aside Child Support
and Grant Defendant Relief Based on the Plaintiff's
Perpetrating Fraud Upon the Court band Defendant" as
amended. Both parties were present and represented by
counsel. The Court has considered and reviewed the file, the
motion and response, and has heard evidence and argument
of counsel.
Procedural History
On December 17, 1998, Plaintiff filed a verified
Complaint to Establish Paternity and Set Child Support
pro se, although she later retained counsel. On January 28,
1999, Defendant, represented by counsel, filed a verified
Answer and Counterclaim for Legitimation. The parties
presented the Court with a Consent Order of Legitimation
and Child Custody signed by both parties and their
respective counsel, which the Court signed and filed on July
29, 1999. That same day, the Court signed and filed a second
order for temporary child support and visitation. On
February 29, 2000, the case came for trial on the issues of
child support and visitation; after a lengthy bench trial at
which both parties testified, the Court signed and filed an
order on March 2, 2000 setting visitation and ordering child
support of $750.00 per month. On March 31, 2000,
Defendant, the father, filed "Defendant's Motion to Modify
or in the Alternative Motion for reconsideration of the Final
Order" asking the Court to allow him more visitation with
the child. A hearing on that motion was scheduled but
canceled at Defendant's request. On August 28, 2000,
Defendant filed the motion now before the Court and
informally requested time for the parties to undergo genetic
testing to determine the paternity of the child.
Findings of Fact
It is undisputed that the history of the relationship is
as follows: the parties, who were dating but not living
together, considered themselves to be in a monogamous
relationship until Defendant told Plaintiff that he wanted to
date other women; after some time had passed and the
parties were no longer dating, Plaintiff informed Defendant
that she was pregnant with his child. It is undisputed that the
child was born in December 1988.
At the hearing, Plaintiff testified that she always
considered Defendant to be the father of the child because
she had physical indications of possible pregnancy
immediately after the parties had stopped seeing each other,
before she was intimate with anyone else. Plaintiff testified
that she did not know until she received the results of the
paternity test in the year 2000 that Defendant was not and
could not be the father of this child. Defendant testified that
Plaintiff told him she was pregnant and he was the father of
the child some time after the parties stopped dating each
other, at a time when he considered himself free to date other
women and he considered Plaintiff to be free to date other
men. Defendant testified that, when he retained an attorney
to represent him at the onset of this paternity action, that
attorney advised him to take a paternity test and he said no.
The Court finds that the Consent Order of
Legitimation and Child Custody established paternity and
legitimated the child of these parties. The Court finds that
Defendant has abandoned his Motion to Modify regarding
additional visitation, as he is now asking this Court to relieve
him of the duties of fatherhood.
The Court finds Defendant had knowledge, at the
time he was informed of the pregnancy, that the parties were
no longer in a monogamous relationship and therefore
Defendant was on notice that he might not be the father. The
Court finds that Defendant knew he could request a paternity
test before he counterclaimed to legitimate this child, but did
not do so. The Court finds that Defendant did not exercise
due diligence in ascertaining paternity of the child and that
Defendant's want of due diligence was the reason the newly
discovered evidence of paternity was not known to him
sooner.
Legal Standard
The Georgia Supreme Court held that extraordinary
motions for a new trial on the basis of newly available
evidence are not favored: The requirements for granting an
extraordinary motion for a new trial are clear. On an
extraordinary motion for a new trial based on newly
discovered evidence, it is incumbent that the movant satisfy
the court: (1) that the newly discovered evidence has come to
his knowledge since the trial; (2) that want of due diligence
was not the reason that the evidence was not acquired
sooner; (3) that the evidence was so material that it would
probably produce a different verdict; (4) that it is not
cumulative onlt; (5) that the affidavit of the witness is
attached to the motion or its absence accounted for; and (6)
that the new evidence does not operate solely to impeach the
credit of a witness. [Cits. and punctuation omitted] Patterson
v. Whitehead, 224 Ga. App. 636, 638(3) (1997), citing
Roddenberry v. Roddenberry, 255 Ga. 715, 717 (1986).
Conclusions of Law
Defendant has not proven, by a preponderance of
evidence, that Plaintiff perpetrated fraud upon him or this
Court. Defendant is not entitled to a grant of a new trial
based on newly discovered evidence because he failed to
exercise due diligence in acquiring such evidence timely.
Roddenberry, supra. Therefore Defendant's "Extraordinary
Motion and Brief for New Trial to Set Aside Child Support
and Grant Defendant Relief Based on the Plaintiff
Perpetrating Fraud Upon this Court and Defendant":, as
amended, is DENIED.
SO ORDERED this 14 day of May, 2001.
/s/ Edward A. Wheeler
Stone Mountain Judicial Circuit
Senior Judge
Cc: Corinne M. Mull, Esq.
Randall M. Kessler, Esq.
(Sealed by deputy clerk 12th day of June, 2001,
signature of clerk illegible)
Filed in DeKalb County Court May 14 2001
----------------------------------------------------------
End verbatim copy.
----------------------------------------------------------
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(ascii version: Cites at end instead of page bottoms)
-------------------------------------------------------
No. 01-1520 (Filed 4/9/02)
IN THE SUPREME COURT
OF THE UNITED STATES
_________________________
October Term, 2001
_________________________
CARNELL A. SMITH
Petitioner
v.
TONI W. ODUM
Respondent
______________________________________________
On Petition for a Writ of Certiorari to the
Supreme Court of the State of Georgia
______________________________________________
PETITION FOR WRIT OF CERTIORARI
______________________________________________
CARNELL A. SMITH
(address and phone redacted)
Petitioner, Pro Se
April 9, 2002
QUESTIONS PRESENTED
1. Is every cognizant State Court, when
presented with uncontroverted, credible
genetic testing evidence of non-paternity,
required to render void for want of subject
matter jurisdiction, the previous, underlying,
judgment of paternity?
2. Upon a finding by the cognizant State Court
that a previous judgment of paternity is void,
must that Court Order the refund to the
newly-proven non-father, of all child support,
whether court ordered or voluntarily paid
while under mistaken belief of paternity,
collection expenses, and court expenses?
LIST OF PARTIES
Petitioner Carnell A. Smith, is a resident and citizen of
the State of Georgia and of the United States of America.
Respondent Real Party in Interest Toni W. Odum was
at all pertinent times, a resident and citizen of the State of
Georgia and of the United States of America.
TABLE OF CONTENTS
QUESTIONS PRESENTED i
LIST OF PARTIES ii
TABLE OF CONTENTS iii
TABLE OF AUTHORITIES iv
TABLE OF STATUTES AND ACTS OF vi
CONGRESS ...
OPINIONS BELOW 2
JURISDICTION 2
STATUTORY PROVISIONS INVOLVED 2
STATEMENT OF THE CASE 2
STANDARD OF REVIEW 5
STATEMENT OF FACTS 5
REASONS FOR GRANTING THE WRIT 7
I. Every cognizant State Court, when presented with 7
uncontroverted, credible genetic testing evidence of non-
paternity, is required to render void for want of subject
matter jurisdiction, the previous, underlying, judgment of
paternity.
II. Upon a finding by the cognizant State Court that a 11
previous judgment of paternity is void, that Court must
Order the refund to the newly-proven non-father, of all child
support, whether court ordered or voluntarily paid while
under mistaken belief of paternity, collection expenses, and
court expenses.
CONCLUSION 16
Georgia Supreme Court Order Appendix A
Court of Appeals Order Appendix B
Superior Court Order Appendix C
TABLE OF AUTHORITIES
AG Edwards & Son v. Norwest Rlty Co.,340 NW2d 15
187,189 (S.D.1983)
Allenberg Cotton Co. v. Pittman, 419 U.S. 20 (1974) 17
American Fire & Casualty Co. v. Finn, 341 U.S. 6, 12
17-18 (1951);
Barret v. Independent Order of Foresters, 625 F.2d 73 10
(5th Cir. 1980).
Capron v. Van Noorden, 2 Cranch 126, 127 (1804) 12
Clements v. Phillips, 235 Ga.App. 588, 510 S.E.2d 12,14
311 (Ga.App. 12/03/1998)
De Filippis v. United States, 567 Fed.2d 341, 343-44 15
(7th Cir. 1977)
Department of Medical Assistance v. Presbyterian 11
Home, Inc. 200 Ga.App. 885, 887.
Dixon v. Punchy, 979 P.2d 520, 526 (Alaska 1999) 15
Freytag v. Commissioner, 501 U.S. 868 (1991) 12,13
Gary v. E. Frank Miller Construction Co., Inc., 208 10
Ga.App. 73 (1993)
Georgia Department of Human Resources v. Pinter, 14
241 Ga.App. 10, 525 S.E.2d 715 (Ga.App. 11/18/1999)
Haynes v. Fincher, 241 Ga.App. 179 (1999).
Human Resources v. Browning, 210 Ga.App 546, 547 7
(1993)
In re Ashmore, 163 Ga. App. 194, 195 (1) 14
(293 SE2d 457) (1982)
Jenkins v. MAB and JB, 723 So.2d 649 (Ala. 7/17/98) 15
Kohl v. Amundson, 620 NW2d 606 (S.D. 1/3/2001) 15
Langston v. Riffe v. Langston, Daniel R. v. Tyrone W. 15
359 Md 396, 754 A.2d 389 (June 28, 2000)
Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985 (1983) 15
Libro v. Walls, 103 Nev. 540, 543, 746 P.2d 632, 634 15
(Nev. 1987)
Love v. Love, 114 Nev. 572, 959 P.2d 523 (Nev. 5/19/98) 15
Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 12
82 (1884)
Morton v. W.T. Tharpe & Co., 41 Ga.App 788 (1930). 11
Price v. Mitchell, 154 Ga.App. 523 (1980) 11
Roddenberry v. Roddenberry, 255 Ga. 715, (1986) 7
Smith v. Department of Human Resources, 8,14
226 Ga. App. 491, 493 (487 SE2d 94) (1997)
United States v. Swift & Co., 286 U.S. 106, 114-15 , 15
52 S.Ct 460 (1932)
White v. Armstrong, 1999 WL 33085 (Tenn. Ct. 15
App 1/27/99)
Wise v. Fryar, Petition for Writ of Certiorari, U.S. 15
Supreme Court No. 01-562, cert.den. (Current Term, 2002)
WY. Dept. of Fam. Serv.,MJJ v.PAG & MJA, 15
934 P.2d 1257 (Wy.1977)
TABLE OF STATUTES AND ACTS OF CONGRESS
O.C.G.A. 19-7-40 (Georgia Paternity, Child Support) passim
------------------------------------------------------------
IN THE SUPREME COURT
OF THE UNITED STATES
_________________________
October Term, 2001
_________________________
CARNELL A. SMITH
Petitioner
and
TONI W. ODUM
Respondent
______________________________________________
On Petition for a Writ of Certiorari to the
Supreme Court of the State of Georgia
______________________________________________
PETITION FOR WRIT OF CERTIORARI
______________________________________________
CARNELL A. SMITH
(Address and phone redacted)
Petitioner, Pro Se
______________________________________________
Petitioner respectfully prays that a writ of certiorari issue to
review the Decision entered herein by the Supreme Court of
the State of Georgia on January 9, 2002.
OPINIONS BELOW
The 1/9/02 Memorandum Decision of the Supreme
Court of the State of Georgia appears as Appendix A. The
decision of the Georgia Court of Appeals dated 7/10/01
appears as Appendix B. The Decision of the Superior Court
of DeKalb County, Georgia in Civil Action No. 98-12744-9
dated 5/14/01 appears as Appendix C.
JURISDICTION
The judgment of the Georgia Supreme Court was
entered on January 9, 2002. This petition for certiorari is
being filed within 90 days of that date. Jurisdiction is
invoked under 28 U.S.C. ยง1254(1).
STATUTORY PROVISIONS INVOLVED
None specifically invoked.
STATEMENT OF THE CASE
A large, well defined, class of civil cases exists
across the United States in which some Courts routinely
persist in failing their fundamental duty to do justice. In
these cases, the court rules that a status of paternity exists,
and when later confronted with credible, conclusive
scientific evidence of non-paternity, by way of the relatively
new, reliable "DNA Test", refuses by artifice and avoidance,
to reopen the matter, release the erroneously implicated
"non-father" from financial liability, and further refuses to
reimburse the "non-father" for sometimes huge past child
support assessments having no lawful basis.
A civil state court acquires subject matter jurisdiction
over the financial duties of a "putative father" only if that
man is in fact the biological or adoptive father of the subject
child. Releasing such a man from the financial duties of
fatherhood is not discretionary, when, not being an adoptive
parent, that man is demonstrated by the clear result of DNA
testing not to be the biological father. Such demonstration
finally and without recourse constitutes ab initio lack of the
court's subject matter jurisdiction over the subject of the
demonstrated non-father's duty of financial support.
Lack of subject matter jurisdiction may be raised at
any time, for it goes to the most crucial connection by which
a court acquires the right and obligation to exert that court's
power over the affected non-father. The subterfuge of
refusing to deal with wrongful paternity adjudications by
claiming "laches", or excessive passage of time, cannot
lawfully be applied to matters later shown to lack ab initio
subject matter jurisdiction.
Nor may the fiction of paternity be maintained in
light of wrongful conduct by any party, for subject matter
jurisdiction is a fundamental litigative necessity which is
neither created nor destroyed by litigative action; rather, it
either exists as a factual basis, or it does not.
A court, upon finding that it lacks ab initio subject
matter jurisdiction, has a very high duty to expeditiously
declare its lack of such jurisdiction, and to restore the status
quo ante, that is, to declare that the erroneously declared
father is not, and never was, the actual father, and further,
that any child support paid by him under the false impression
of his paternity, or by court order, be wholly refunded to
him.
Petitioner Carnell A. Smith, representing himself,
hereby petitions that a Writ of Certiorari issue to the Georgia
Supreme Court regarding the denial by that Court on January
9, 2002 of leave to appeal from the Order of the Honorable
Edward A. Wheeler, Senior Judge, Stone Mountain Judicial
Circuit , Superior Court, DeKalb County, dated May 14, 2001.
Petitioner respectfully submits that the Superior
Court of DeKalb County committed fundamental error at
law, in denying to Petitioner a new trial, sought on August
28, 2000 (less than three years from entry of the Superior
Court's Consent Legitimation Order dated July 28, 1999, and
its March 2, 2000 Visitation and Child Support Order) based
upon newly discovered DNA evidence of non-paternity.
Further, that each of the involved Georgia Appellate Courts
failed to abide by their respective mandatory duty to examine
a claimed lack of Subject Matter Jurisdiction, by refusing to
grant Petitioner's Applications for Discretionary review.
Petitioner further submits that the Superior Court of
DeKalb County committed fundamental error at law, in
denying retrial of an order of legitimization originally based
upon application and consent of the de-facto non-father
before he suspected Plaintiff/Respondent's fraudulent
concealment.
The Application to the Court of Appeals urged, and
the subsequent State Supreme Court Petition for Certiorari,
or alternatively, Application for Discretionary Appeal
necessarily re-urged, that lack of de-facto biological
paternity deprives the Superior Court ab initio of subject
matter jurisdiction to assess statutory child support from the
non-father, or to enter or perpetuate an order of
legitimization as to the non-father.
Since lack of subject matter jurisdiction may be
raised at any time, it would, if recognized herein, establish
precedent broadly applicable in every State, to all defrauded
biological non-fathers who are wrongfully refused cessation
of child support orders and reimbursement for formal or
informal past payments of child support arising from a
mistaken belief in their paternity status.
Wrongful perpetuation of Georgia Court Orders
assessing child support when the parties and the courts
become aware that Jurisdiction for such orders is lacking
(because the man so ordered is not the biological father
intended by the legislature) rises to constitutional
dimensions, and is a crucial matter of nationwide
importance, justifying this court's resolution by
establishment of a nationwide precedent. No United States
Supreme Court precedent specifically prohibits such a
miscarriage of justice.
This Application is the ideal vehicle for reaching a
precedent upon which all paternity litigants may rely, and is
therefore a matter of national public interest. Public trust and
confidence in our court system is shaken so long as the
fiction which perpetuates the child support order below, is,
along with similar cases, the continuing subject of public
outrage and media attention.
Petitioner was led to believe, during pregnancy of his
former intimate, Respondent Toni W. Odum, that the child
she carried was his. She concealed from him for about a
decade, the possibility that he was not the father. Relying
thereon, Petitioner paid voluntary child support, and later, in
the caption-referenced Paternity matter, paid court ordered
support. By counterclaim, Petitioner in good faith secured
the child's legitimization and court-ordered custodial and
visitation rights.
Only thereafter did Petitioner first become aware of
the possibility of his non-paternity. Two DNA tests have
each conclusively excluded him as father. The Superior
Court on May 14, 2001, denied Petitioner's motion for new
trial, based upon his not having earlier availed himself of
DNA testing before he had reason to suspect he might not be
the father.
STANDARD OF REVIEW
The question of subject matter jurisdiction is not
discretionary, but is rather a matter of law which may be
raised at any time.
STATEMENT OF FACTS
The parties resided together and had a sexual
relationship, which ended when they separated. Shortly after
such separation, Respondent/mother informed Petitioner of
her pregnancy, and claimed that he was the father. She
deliberately concealed the fact that she contemporaneously
had had sexual relations with another man. Thus deceived,
Petitioner acted as father by developing a relationship with
the child and paying voluntary child support. Eventually, the
parties disagreed as to the amount of a mother-demanded
increase in child support, and she on January 28, 1999, filed
the paternity/support action to which this petition pertains.
Petitioner counterclaimed and was granted court-ordered
custodial and visitation rights, as well as an Order of
Legitimization.
Only thereafter was Petitioner advised by third
parties of the possibility that he was not the father. He
secured a DNA test, and his non-paternity was confirmed.
Mother then demanded a second, independent DNA test,
which resulted in the same outcome. She and her counsel
stipulated to temporary cessation of child support, but when
Petitioner refused to absolve her of reimbursement of the
approximately $40,000 he had already paid for a child that
was not his, she and her counsel resisted the entire new-trial
procedure. The order, to which this Petition pertains,
perpetuates the de-facto baseless child support order and
legitimization.
REASONS FOR GRANTING THE WRIT
INTRODUCTION
The Superior Court of DeKalb County committed
fundamental error at law, in denying to Applicant, based
upon purported lack of "due diligence" a new trial of Child
Support and Legitimization based upon newly discovered
DNA evidence of non-paternity.
Lack of de-facto biological paternity deprives the
Superior Court ab initio of subject matter jurisdiction to
assess statutory child support from the non-father, or to enter
or perpetuate an order of legitimization as to the non-father.
The Court of Appeals and the State Supreme Court both
committed fundamental error at law, in denying the
Application for Discretionary Appeal, founded on lack of
subject matter jurisdiction, thereby creating a sub silentio
ratification and perpetuation of the trial court's exercise of
non-existent subject matter jurisdiction.
1.
Every cognizant State Court, when presented with
uncontroverted, credible genetic testing evidence of non-
paternity, is required to render void for want of subject
matter jurisdiction, the previous, underlying, judgment of
paternity.
The Petitioner should have been routinely, and
mandatorily, allowed to proceed with his motion for new
trial because it attacked a previous final judgment which
dealt with paternity and child support, and was based on
evidence which was discovered after the Superior Court's
Final Order. (FN1,2.)
Footnote 1: See Roddenberry v. Roddenberry, 255 Ga. 715, (1986)
Footnote 2: "On an extraordinary motion for a new trial based on newly
discovered evidence, it is incumbent on the movant to satisfy the court: (1)
that the newly discovered evidence had come to his knowledge since the
trial; (2)that want of due diligence was not the reason that the evidence
was not
acquired sooner; (3) that the evidence was so material that it would
probably produce a different verdict; (4) that it is not cumulative only;
(5) that the affidavit of the witness is attached to the motion or its
absence accounted for; and (6) that the new evidence does not operate
solely to impeach the credit of a witness." Human Resources v.
Browning, 210 Ga.App 546, 547 (1993).
The trial court wrongfully denied the new trial, by
finding that Petitioner had failed to exercise due diligence.
More specifically, lack of due diligence was attributed by the
Trial Court to Petitioner's failure to earlier avail himself of a
DNA test on litigative occasions when Petitioner earnestly
and in good faith believed himself to be the biological father,
in reliance upon Mother's fraudulent withholding from him
of information to the contrary.
Petitioner had no reason to believe that he was not
the father of the minor child since the Mother repeatedly
assured him that he was in fact the biological father.
Therefore his duty of "due diligence" did not begin until
after he had first been alerted by third parties that he might
not be the only male to have been sexually active with the
Mother during the period when the child could have been
conceived. Petitioner initiated a DNA test promptly after
being so alerted. (FN3)
Footnote 3: "Where a purported father has no reason to suspect the fidelity
of the mother, it may not be unreasonable, and in fact may be admirable, for
him to acknowledge his paternity without further proof thereof. 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. A contrary
rule would invite suspicion and distrust, and essentially require all
purported fathers, upon divorce or separation to accuse their spouses or
partners of infidelity by demanding proof of paternity." Smith v.
Department of Human Resources, 226 Ga.App 491, 493 (1997).
The trial court extrapolated that the mere fact of
separation of the parties gave to Petitioner "... knowledge, at
the time he was informed of the pregnancy, that the parties
were no longer in a monogamous relationship and therefore
he was on notice that he might not be the father". Order,
Appendix C, p.3 (original numbering), lines 19-22. Nothing
in the trial record supports such judicial extrapolation. It is a
non-sequitur. This court should take judicial notice that
cohabiting couples, married or not, are not necessarily
behaving monogamously, and further, that couples who
separate are not necessarily thrust into a libertine lifestyle.
Such judicial extrapolation should be deemed an abuse of
discretion.
The Petitioner was repeatedly assured by the Mother
that he was the biological father of the minor child. The
Mother voluntarily withheld information that would have
caused the Petitioner to doubt the fact that he was the father
of the minor child.
The admitted fact that the Mother required assistance
of a physician to "determine" (without contemporaneous
DNA or any blood testing) that "Mr. Smith was the Father",
including the counting of days relative to missed
menstruation, is probative of the Mother, Toni Odum
knowing from the very beginning of her pregnancy that there
were two potential fathers. Her "physician's assistance" in
her "determination" would have been unnecessary had
Petitioner been the only man with whom she had
contemporaneously engaged in intercourse, casting doubt
upon her professed certainty as to actual paternity.
Provided with the information that he was not the father
of the child, Petitioner would never have been ordered by the
Superior Court to pay child support and he would never had
agreed to voluntarily pay child support for more than ten
(10) years. The evidence of non-paternity would have
prevented the Mother from obtaining child support from the
Petitioner.
The Mother committed fraud against the Superior
Court in several respects:
First, by failing to disclose the possibility of another
father, she created an omission from the record of the final
hearing.
Second, the Petitioner innocently relied on this
omission to his detriment. For more than ten (10) years,
based upon false pretenses advocated by the Mother, the
Petitioner provided the Mother with over forty thousand
dollars ($40,000.00) in child support. (FN4)
Footnote 4: See Gary v. E. Frank Miller Construction Co., Inc.,
208 Ga.App. 73 (1993).
Third, the Petitioner reasonably relied on the
Mother's assertion that he was the biological father of the
minor child. The Petitioner had no reason to believe that he
was not the father of the minor child, and the Mother never
informed him of the possibility that he may not be the father
of said child. (FN5)
Footnote 5: See Barret v. Independent Order of Foresters,
625 F.2d 73 (5th Cir. 1980).
Throughout the proceedings below, Petitioner
persisted in misinterpreting the claimed "advice by
Petitioner's Counsel" to "secure a DNA test". Nowhere does
the Mother show such purported attorney advice to arise
from any factually-based suspicion of non-paternity. The
Court may take judicial notice that a proposal to seek DNA
evidence is nowadays likely to be a routine procedural
suggestion made by every attorney defending his client
against child support obligation in any paternity case.
To become aware of the public availability of DNA
testing, from a billboard or by suggestion by counsel, is not
the onset of a duty of due diligence. It is the realization, for
the first time, that facts exist probative f a different man
being the father, that should be the trigger for a fresh duty of
due diligence.
II.
Upon a finding by the cognizant State Court that a previous
judgment of paternity is void, that Court must Order the
refund to the newly-proven non-father, of all child support,
whether court ordered or voluntarily paid while under
mistaken belief of paternity, collection expenses, and court
expenses.
As a direct result of the fraud, the Plaintiff was forced
to relinquish a very substantial amount of money to the
Mother, which has inflicted a grave financial harm to him. (FN 6,7)
Footnote 6: See Haynes v. Fincher, 241 Ga.App. 179 (1999).
Footnote 7: "It is a well recognized principle that one may not retain
money or
goods which have come into (her) hands through mistake and which
(she) is not, in good conscience, entitled to retain." Department of
Medical Assistance v. Presbyterian Home, Inc. 200 Ga.App. 885, 887.
The Plaintiff fraudulently obtained over forty
thousand dollars ($40,000.00) from the Defendant through
deceit. When misrepresentation of a material fact has
occurred by one of the parties, then legal fraud has occurred
and the party can recover damages based on that fraud. (FN 8)
Footnote 8: See Morton v. W.T. Tharpe & Co., 41 Ga.App 788 (1930).
Therefore, the Plaintiff should not be allowed to profit from
the fraud she perpetrated against the Court and the Defendant
should be allowed to recover from the Plaintiff the damages
he incurred due to her fraud. (FN 9)
Footnote 9: See Price v. Mitchell, 154 Ga.App. 523 (1980).
Lack of de-facto biological paternity deprives the
Superior Court ab initio of subject matter jurisdiction to
assess statutory child support from the non-father, or to enter
or perpetuate an order of legitimization as to the non-father.
The trial court found, at Order, Appendix C, p.3,
lines 14-18, that:
"... the Consent Order of Legitimization and Child
Custody established paternity and legitimated the
child of these parties."
That cannot be so. Legitimization can only be
accomplished by the biological father. Petitioner is
absolutely not that person. (FN 10)
Footnote 10: See Clements v. Phillips, 235 Ga.App. 588,
510 S.E.2d 311 (Ga.App. 12/03/1998)
There is no doubt that the DeKalb County Court
acquired personal jurisdiction over the Mother by her filing
of the paternity action, and over Petitioner, by service of
process. But personal jurisdiction does not form a foundation
for subject matter jurisdiction. 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, nor does that court have subject matter jurisdiction
to order a "Legitimation" regarding, or initiated erroneously
by, a non-parent.
The Superior Court's subject matter jurisdiction to
assess child support against an "unwed father" does not exist
when such a defendant is not the de-facto biological father.
The Georgia legislature granted power to the Superior Court
in paternity cases to determine contested paternity, but did
not grant power (subject matter jurisdiction) to make any
child-related paternity orders impinging upon a non-parent.
Subject matter jurisdiction cannot be created where it
does not exist, nor is it created by agreement or waiver. (FN 11)
Footnote 11: "...Must a judgment already rendered be set aside because of an
alleged structural error to which the losing party did not properly object?
There is no reason in principle why that should always be so. It will
sometimes be so - not, however, because the error was structural, but
because, whether structural or not, it deprived the [federal] court of its
requisite subject-matter jurisdiction. Such an error may be raised by a
party, and indeed must be noticed sua sponte by a court, at all points in
the litigation, see, e. g., American Fire & Casualty Co. v. Finn, 341
U.S. 6, 17-18 (1951); Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S.
379, 382 (1884); Capron v. Van Noorden, 2 Cranch 126, 127 (1804)."
Freytag v. Commissioner, 501 U.S. 868 (1991) JUSTICE SCALIA, with
whom JUSTICE O'CONNOR, JUSTICE KENNEDY, and JUSTICE
SOUTER join, concurring in part and concurring in the judgment.
(emphasis supplied)
As the U.S. Supreme Court indicated in Freytag, id.,
the issue of Subject Matter Jurisdiction not only may be
raised at any time, all courts have an affirmative duty to
examine the issue when it is raised by a party, or sua sponte.
Purported lack of "due diligence" by a litigant does not
affect that affirmative duty. 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.
Indeed, the Court of Appeals and State Supreme
Court lack power to so ratify on a theory that Petitioner
Carnell Smith "waived" by purported lack of "due diligence"
his right to seek the setting aside of the manifestly baseless
child support order. (FN12)
Footnote 12: "Since such a jurisdictional defect deprives not only the
initial court but also the appellate court of its power over the case or
controversy, to
permit the appellate court to ignore it because of waiver would be to give
the waiver legitimating, as opposed to merely remedial, effect, i. e., the
effect of approving, ex ante, unlawful action by the appellate court
itself." Freytag v. Commissioner, 501 U.S. 868 (1991), id. JUSTICE
SCALIA, with whom JUSTICE O'CONNOR, JUSTICE KENNEDY,
and JUSTICE SOUTER join, concurring in part and concurring in the
judgment.
When paternity is declared, legitimization is ordered,
or child support is imposed, and the Court becomes aware of
dispositive evidence of biological non-paternity, a decision
such as that herein, denying retrial on the basis of alleged
lack of due diligence, violates the court's duty of
jurisdictional self-examination. Just as the execution of a
criminal defendant known before the execution to be
innocent is an affront to our Constitution, the maintenance of
a manifest fiction in order to perpetuate a financial obligation
and avoid "delegitimization" of a child violates the
Fourteenth Amendment rights not only of the non-father, but
also the substantive rights of the child. (FN13)
Footnote 13: "It goes without saying that a child has an interest in not
being
legitimated by someone who is not his father. See, e.g., In re Ashmore,
163 Ga. App. 194, 195 (1) (293 SE2d 457) (1982) (any interested party
may file objection to legitimization petition). The fact that the mother
was a participant in a fraudulent scheme to have the child wrongfully
legitimated does not lessen this interest. Legitimation is not a game, and
the child is not the prize." Clements v. Phillips, id. 235 Ga.App. 588, 510
S.E.2d 311 (Ga.App. 12/03/1998)
Although there was initially an assumption herein by the
Superior Court that it had acquired Subject Matter
Jurisdiction by virtue of the Petitioner's voluntary agreement
to such a declaration of status, once proof of non-paternity is
presented, the Superior Court must, however reluctantly,
admit that it never actually had subject matter jurisdiction.
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. (FN 14)
Footnote 14: "...I write separately to point out the
absurdity of the present state of
the law that requires a putative father to pay child support after he has
scientifically proven that he is not the biological father. As I stated in
Smith v. Department of Human Resources, 226 Ga. App. 491, 493 (487
SE2d 94) (1997), '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.' 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. Once non-paternity is
scientifically established, courts cannot ignore such fact by relying on
policies developed when no such proof was possible. To create a fiction
in this matter does not make the male the biological father of the child; it
simply makes him the victim of the law. It also makes an ass of the
law....While the courts may preach their false policy, they lose the
respect of any citizen with common sense" Georgia Department of
Human Resources v. Pinter, 241 Ga.App. 10, 525 S.E.2d 715 (Ga.App.
11/18/1999) BLACKBURN, Presiding Judge, specially Concurring.
O.C.G.A. 19-7-40 clearly provides that the Superior
Court and the state courts have jurisdiction of paternity and
child support. But once there is proof of non-paternity of the
non-father, neither the Superior Court nor the state appellate
courts remain vested with Subject Matter Jurisdiction
regarding him to require, assess, or perpetuate child support.
The United States Supreme Court, earlier in the
present 2001-2002 term, denied Certiorari in a Texas-based
case wherein review solely invoking the Fourteenth
Amendment to the United States Constitution had been
denied to a divorced man. He had discovered, via post
divorce health-related blood testing, that he was not the
biological father of multiple children born during the
marriage. While the divorced man did not, as herein, raise
lack of subject matter jurisdiction in his Certiorari Petition,
he recited a number of valuable cases showing proper post-
decree reversal of paternity findings and monetary
consequences in States other than Texas. (FN 15)
Footnote 15: Wise v. Fryar, Petition for Writ of Certiorari, U.S. Supreme
Court No. 01-562, cert.den., which cited, among others, the following cases:
White v. Armstrong, 1999 WL 33085 (Tenn. Ct.App 1/27/99);
De Filippis v. United States, 567 Fed.2d 341, 343-44 (7th Cir. 1977);
United States v. Swift & Co., 286 U.S. 106, 114-15 , 52 S.Ct 460 (1932;
Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985 (1983);
WY. Dept. of Fam. Serv.,MJJ v.PAG & MJA,934 P.2d 1257 (Wy.1977);
Kohl v. Amundson, 620 NW2d 606 (S.D. 1/3/2001);
AG Edwards & Son v. Norwest Rlty Co.,340 NW2d187,189 (S.D.1983);
Love v. Love, 114 Nev. 572, 959 P.2d 523 (Nev. 5/19/98);
Libro v. Walls, 103 Nev. 540, 543, 746 P.2d 632, 634 (Nev. 1987);
Langston v. Riffe v. Langston, Daniel R. v. Tyrone W., 359 Md 396,
754 A.2d 389 (June 28, 2000);
Jenkins v. MAB and JB, 723 So.2d 649 (Ala. 7/17/98)
Dixon v. Punchy, 979 P.2d 520, 526 (Alaska 1999)
The Orders herein sought to be vacated are arguably
void ab initio. That does not mean that the court does not
still have a task to perform in rectifying its previous error.
While the Superior Court manifestly lacks Subject Matter
Jurisdiction over matters of current or future support
regarding Petitioner in this case, it retains personal
jurisdiction over the Mother, for having caused Petitioner to
be damaged through jurisdictionally defective invocation of
the Court's power.
CONCLUSION
Petitioner, having been subjected to provably void
Subject Matter Jurisdiction, has standing to raise a facial
challenge against that exercise. Invalidation on constitutional
grounds goes directly to the power of a Court to hear, try,
and adjudicate a matter wholly based upon an ab initio lack
of the necessary biological relationship by which a de facto
father is constitutionally made a party to a paternity action.
Petitioner lacks the capacity to "forfeit" the question of
subject matter jurisdiction. He can, and has, properly and
expeditiously raised the issue for the first time in the trial
court, and at every appellate level thereafter. He could have
raised it for the first time in seeking Certiorari.
For the foregoing reasons, Petitioner should not have
been denied re-opening of the Paternity, Support and
Legitimation case.
The United States Supreme Court should choose
whichever of the remedies sought herein it deems
appropriate, and either grant Certiorari and then upon
briefing and argument, reverse the Georgia Supreme Court's
denial of Discretionary Appeal, or more directly use its own
original discretion to grant a Discretionary Appeal.
Upon recognition of the jurisdictional principles
argued herein, this Court may short circuit any extended
appellate proceedings and fashion such direct remedies it
deems reasonable, including but not limited to directly
ordering the Superior Court to reopen proceedings so as to
stop the child support order, and order that
Petitioner/Applicant be fully compensated for the more than
$40,000 fraudulently received by Mother , plus costs.
Respectfully submitted this 9th. day of April, 2002.
___________________________
Carnell A. Smith
In Propria Persona
(Address and phone redacted)
----------------------------------------------------
Appendix A
SUPREME COURT OF THE STATE OF GEORGIA
CLERK'S OFFICE
ATLANTA
DATE: January 09, 2002
Carnell A. Smith
(Address and phone redacted)
Case No. S01C1628
CARNELL A. SMITH V. TONI W. ODOM
COURT OF APPEALS CASE NO: A01D0340
The Supreme Court today denied the petition for
certiorari in this case.
All the justices concur.
Sherie M. Welch, Clerk
Appendix B
Court of Appeals
of the State of Georgia
ATLANTA, JULY 10, 2001
The Court of Appeals hereby passes the following order:
Upon consideration of the Application for Discretionary
Appeal, it is ordered that it be hereby DENIED.
90029
98127449
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta Jul. 10, 2001
I certify that the above is a true extract
from the minutes of the Court of Appeals
of Georgia.
Witness my signature and the seal of said
Court hereto affixed the day and year last
above written.
Clerk
/S/ Walter Z. Martin, III
Appendix C
IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA
TONI W. ODUM )
Plaintiff ) CIVIL ACTION
vs. )
CARNELL A. SMITH ) FILE NO. 98-12744-9
Defendant )
O R D E R
The above-styled case came before the Court for a
hearing on April 16, 2001 on Defendant's "extraordinary
Motion and Brief for New Trial to Set Aside Child Support
and Grant Defendant Relief Based on the Plaintiff's
Perpetrating Fraud Upon the Court band Defendant" as
amended. Both parties were present and represented by
counsel. The Court has considered and reviewed the file, the
motion and response, and has heard evidence and argument
of counsel.
Procedural History
On December 17, 1998, Plaintiff filed a verified
Complaint to Establish Paternity and Set Child Support
pro se, although she later retained counsel. On January 28,
1999, Defendant, represented by counsel, filed a verified
Answer and Counterclaim for Legitimation. The parties
presented the Court with a Consent Order of Legitimation
and Child Custody signed by both parties and their
respective counsel, which the Court signed and filed on July
29, 1999. That same day, the Court signed and filed a second
order for temporary child support and visitation. On
February 29, 2000, the case came for trial on the issues of
child support and visitation; after a lengthy bench trial at
which both parties testified, the Court signed and filed an
order on March 2, 2000 setting visitation and ordering child
support of $750.00 per month. On March 31, 2000,
Defendant, the father, filed "Defendant's Motion to Modify
or in the Alternative Motion for reconsideration of the Final
Order" asking the Court to allow him more visitation with
the child. A hearing on that motion was scheduled but
canceled at Defendant's request. On August 28, 2000,
Defendant filed the motion now before the Court and
informally requested time for the parties to undergo genetic
testing to determine the paternity of the child.
Findings of Fact
It is undisputed that the history of the relationship is
as follows: the parties, who were dating but not living
together, considered themselves to be in a monogamous
relationship until Defendant told Plaintiff that he wanted to
date other women; after some time had passed and the
parties were no longer dating, Plaintiff informed Defendant
that she was pregnant with his child. It is undisputed that the
child was born in December 1988.
At the hearing, Plaintiff testified that she always
considered Defendant to be the father of the child because
she had physical indications of possible pregnancy
immediately after the parties had stopped seeing each other,
before she was intimate with anyone else. Plaintiff testified
that she did not know until she received the results of the
paternity test in the year 2000 that Defendant was not and
could not be the father of this child. Defendant testified that
Plaintiff told him she was pregnant and he was the father of
the child some time after the parties stopped dating each
other, at a time when he considered himself free to date other
women and he considered Plaintiff to be free to date other
men. Defendant testified that, when he retained an attorney
to represent him at the onset of this paternity action, that
attorney advised him to take a paternity test and he said no.
The Court finds that the Consent Order of
Legitimation and Child Custody established paternity and
legitimated the child of these parties. The Court finds that
Defendant has abandoned his Motion to Modify regarding
additional visitation, as he is now asking this Court to relieve
him of the duties of fatherhood.
The Court finds Defendant had knowledge, at the
time he was informed of the pregnancy, that the parties were
no longer in a monogamous relationship and therefore
Defendant was on notice that he might not be the father. The
Court finds that Defendant knew he could request a paternity
test before he counterclaimed to legitimate this child, but did
not do so. The Court finds that Defendant did not exercise
due diligence in ascertaining paternity of the child and that
Defendant's want of due diligence was the reason the newly
discovered evidence of paternity was not known to him
sooner.
Legal Standard
The Georgia Supreme Court held that extraordinary
motions for a new trial on the basis of newly available
evidence are not favored: The requirements for granting an
extraordinary motion for a new trial are clear. On an
extraordinary motion for a new trial based on newly
discovered evidence, it is incumbent that the movant satisfy
the court: (1) that the newly discovered evidence has come to
his knowledge since the trial; (2) that want of due diligence
was not the reason that the evidence was not acquired
sooner; (3) that the evidence was so material that it would
probably produce a different verdict; (4) that it is not
cumulative onlt; (5) that the affidavit of the witness is
attached to the motion or its absence accounted for; and (6)
that the new evidence does not operate solely to impeach the
credit of a witness. [Cits. and punctuation omitted] Patterson
v. Whitehead, 224 Ga. App. 636, 638(3) (1997), citing
Roddenberry v. Roddenberry, 255 Ga. 715, 717 (1986).
Conclusions of Law
Defendant has not proven, by a preponderance of
evidence, that Plaintiff perpetrated fraud upon him or this
Court. Defendant is not entitled to a grant of a new trial
based on newly discovered evidence because he failed to
exercise due diligence in acquiring such evidence timely.
Roddenberry, supra. Therefore Defendant's "Extraordinary
Motion and Brief for New Trial to Set Aside Child Support
and Grant Defendant Relief Based on the Plaintiff
Perpetrating Fraud Upon this Court and Defendant":, as
amended, is DENIED.
SO ORDERED this 14 day of May, 2001.
/s/ Edward A. Wheeler
Stone Mountain Judicial Circuit
Senior Judge
Cc: Corinne M. Mull, Esq.
Randall M. Kessler, Esq.
(Sealed by deputy clerk 12th day of June, 2001,
signature of clerk illegible)
Filed in DeKalb County Court May 14 2001
----------------------------------------------------------
End verbatim copy.
----------------------------------------------------------
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