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JULIE DENISE BAKER, AN UNMARRIED MINOR WHO SUES BY HER ADULT NEXT FRIEND AND MOTHER, CAROLINE A. WILLIAMS v. CHARLES W. WILLIAMS & LELAND CARROLL BAKER

FEBRUARY 18, 1987

JULIE DENISE BAKER, AN UNMARRIED MINOR WHO SUES BY HER ADULT NEXT FRIEND AND MOTHER, CAROLINE A. WILLIAMS
v.
CHARLES W. WILLIAMS & LELAND CARROLL BAKER



EN BANC

PRATHER, JUSTICE, FOR THE COURT:

This appeal raises the question to what extent children who are not formal parties to a divorce action are bound by some aspects of the decree of divorce. More specifically, this case questions whether a child's prospective right to establish paternity is barred by the adjudication of paternity in a divorce decree. This Court answers in the negative.

Julie Denise Baker, an eleven year old minor child, suing by her mother Mrs. Caroline A. Williams as her next friend, filed a paternity suit against her presumed natural father, Leland Carroll Baker, and her step-father, Charles W. Williams, defendants, in the Chancery Court of Union County.

 On motion the chancellor dismissed the complaint with prejudice sustaining the father's affirmative defenses of estoppel, laches and res judicata without a hearing on the merits. Aggrieved as to this ruling, Julie Denise Baker appeals assigning as error that the trial court erred in sustaining defendant-appellee Leland Baker's ore tenus motion to dismiss the complaint.

 To the marriage of Leland Carroll Baker and Caroline M. Baker (now Williams), two children were born, one of which was the minor female child involved here, Julie Denise Baker. A divorce was granted to Caroline Baker, together with custody of the two children and child support. The presumed natural father, Leland Carroll Baker, paid all support payments and exercised visitation rights with the minor child for some eleven years.

 At some point in time, Caroline Baker (Williams) married Charles W. Williams, and the minor resided with her mother and stepfather. Adoption of Julie was sought by Charles W. Williams, but reserving the maternal rights in the natural mother. That adoption was opposed by the natural father, and the proceeding was dismissed without prejudice. Subsequently, the minor, by her mother as her next friend, filed a petition to establish paternity under Miss. Code Ann. 93-9-1 et seq. (1972), the Mississippi Uniform Law on Paternity, against her presumed natural father and her stepfather. The allegations of the petition charge the minor in fact to be the issue of the mother and stepfather, rather than the

 mother and presumed natural father. It was further alleged that blood testing of the minor, mother, and stepfather indicated a ninety-nine percent probability that the stepfather was in fact the father. The petition requested a court ordered blood testing of the presumed natural father.

 Relying upon the strong presumption of the legitimacy of a child born in wedlock, the chancellor granted the motion to dismiss on three grounds that: (1) the prior adjudication of paternity in the divorce decree was res judicata, (2) the mother's representations on the minor's birth certificate and in the divorce proceedings estopped her present contrary assertions, and (3) the mother's eleven year delay after receipt of child support constituted laches. The appellant's position here is that the affirmative defenses relied upon by the court cannot be asserted against a minor.

 Throughout our legal history, laws have been enacted to support and protect those moral concepts and institutions deemed by society to be sacred. The most fundamental institution of society is the family unit, and legislation promoting legitimate family relationships has beer. promulgated. The mores of society have sought to strengthen the family unit by rejecting and shunning illicit relationships.

 But equally important in the development of our jurisprudence is another fundamental concept of attaining fairness, justice, and equality. It is in this endeavor, to afford fairness and equal protection of the law for illegitimate children, that these two basic principles collide. The resulting conflict was addressed by the United States Supreme Court in Trimble v. Gordon, 97 S. Ct. 1459, 430 U.S. 762, 52 L.Ed.2d 31 (1977). The Supreme Court acknowledged that prior legislation seeking to deter illegitimate relationships of parents had not been effective for that purpose. Further, the Trimble Court recognized that illegitimate children were penalized by denyiny to them inheritance rights from their parents. With that decision and its progeny, an entire new jurisprudence has developed regarding illegitimate children's rights and, to some extent, a change in social attitudes. This case, however, represents a case illustrating those two conflicting basic principles in a unique situation where a legitimate child challenges her paternity.

 III.

 This proceeding is a paternity suit by a legitimate minor child against her presumed natural father and her stepfather under authority of Miss. Code Ann. 93-9-9 (1972), which in pertinent part provides:" Paternity may be determined

 upon the petition of the mother, the child, or any public authority chargeable by law with the support of the child . . . . "

 Since the effective date of this statute, July 1, 1962, antedated the Trimble decision of 1977, it can be determined that the legislative intent for its passage was to provide a method for determining paternity of illegitimate children in order to enforce support. However, the Court can find no prohibition for a presumed legitimate child's use of the statute to establish the fact of paternity when, as here, (1) the child is properly before the Court through her next friend and (2) alleges facts to support her claim. Palmer v. Mangum, 338 So. 2d 1002 (Miss. 1976) (the status of the mother as next friend is not prohibited under the statute). Likewise, this Court has held that a minor may maintain an action against her father for child support under this statute after the minor has attained the age of one year. Palmer, supra. Putative fathers also have the right to file a petition for filiation. Grimsley v. Tyner, 454 So. 2d 482 (Miss. 1984). Thus, this Court holds that a minor child, legitimate or illegitimate, may sue under this statute by next friend. This may be a case for legislative discussion.

 A.

 Our attention does not end here, but consideration of the identity of the parties is important since the mother appears in the capacity of next friend. The real party in interest here is the child, not the mother, and it is presumed that the mother, as a natural guardian of her child, Miss. Code Ann. 93-13-1 (1972), acts in the best interest of the child. Here, however, the certified birth certificate of Julie Denise Baker representing the father of the minor child to be Leland Carroll Baker was signed by Caroline Williams, the mother. In the divorce proceedings filed on April 25, 1974, Caroline Williams stated under oath that Julie Denise Baker was" born of this marriage ". The chancellor in the divorce decree awarded custody of the minor child to Caroline Williams and ordered the appellee, Leland Carroll Baker, to pay the sum of $40.00 per week as child support for that minor child, as well as one additional minor child born to that marriage. Leland Carroll Baker was further awarded certain visitation ...


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