State, Department of Human Services ex rel. Martin v. Neilson

771 S.W.2d 128, 1989 Tenn. App. LEXIS 6
CourtCourt of Appeals of Tennessee
DecidedJanuary 12, 1989
StatusPublished
Cited by9 cases

This text of 771 S.W.2d 128 (State, Department of Human Services ex rel. Martin v. Neilson) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State, Department of Human Services ex rel. Martin v. Neilson, 771 S.W.2d 128, 1989 Tenn. App. LEXIS 6 (Tenn. Ct. App. 1989).

Opinion

HIGHERS, Judge.

The defendant, Franchot Neilson, appeals a jury finding in this paternity action that he is the father of Stephanie Pearson. The appeal is based primarily on Neilson’s assertions that the Madison County Circuit Court improperly admitted a deposition which failed to comply with T.R.Civ.P. 30 and 31.

Neilson and Dorothy Martin slept together at least once in 1973. In December of 1973, Martin gave birth to Pearson. In 1986, the State of Tennessee, on the ground that Pearson “is, or is in danger of becoming a public charge,” filed a petition in General Sessions Court on behalf of Martin alleging that Neilson was the natural father of Pearson. Neilson answered, denying paternity.

Neilson later filed a motion to dismiss on the grounds that the petition was not authorized at law and that the accompanying affidavit was insufficient. Upon his request for a jury trial, the case was transferred to Circuit Court. After the transfer, Neilson renewed his motion for dismissal which was not addressed in General Sessions. That motion was denied.

In February of 1988, after a default judgment was set aside for lack of notice, trial was held. During the trial, Neilson raised two objections to the admission of the deposition of Dr. Jerry Lynn Morrisey who testified regarding blood tests as a [130]*130proof of paternity. The objections were based on non-compliance with T.R.Civ.P. 30 and 31 and on the assertion that the deposition contained inadmissible hearsay. These objections were overruled.

At the conclusion of the trial, the jury found that the petition was well taken and that Neilson was in fact the true and natural father of Stephanie Pearson, and the trial court entered an order in accordance with the finding. After the trial court denied Neilson’s motion for a new trial, Neil-son appealed to this Court asserting that the trial court erred in denying his motion for dismissal, in overruling his objections to the deposition and in affirming the finding of the jury.

The first issue is whether the court erred in denying Neilson’s Motion to Dismiss. That motion was based on Neilson’s assertion that the petition was not authorized under the relevant statute because the affidavit was insufficient. The statute in question is T.C.A. § 36-2-103(d) (Supp.1988), which provides that petitions to establish paternity “shall be verified by affidavit.”

An affidavit is an oath reduced to writing. Grove v. Campbell, 17 Tenn. (9 Yer.) 7 (1836). An affidavit on information and belief is an affidavit which is obviously not based on the personal knowledge of the affiant, but is based on the good faith belief by the affiant that the information is true. See generally Black’s Law Dictionary, 5th Ed. 701. Such affidavits are limited as to the oath they make — the affi-ant is not swearing the facts as averred are true to the best of his personal knowledge; rather he is swearing that he makes the averments “in good faith upon his best information and his bona fide belief.” 2A C.J.S. Affidavits, § 49 (1972). Such affidavits are generally insufficient except when authorized expressly or impliedly by statute, or where those matters sworn to are of necessity opinions or conclusions of law. Affidavits on information and belief are particularly inadequate where the affidavit is addressed to the substantive truth of the facts stated. 3 Am.Jur.2d, Affidavits, § 23 (1986).

Early Tennessee statutes required that the mother appear before a Justice of the Peace and make an oath as to the identity of the father. See Farrar v. State, 2 Tenn.Civ.App. (Higgins) 307 (1911). If the Justice of the Peace was aware of a birth out of wedlock, he could summon the mother before him to make the oath, Shannon’s Code 7332, and if she refused, she was required to post a bond for support of the child or go to jail until she made oath. Shannon’s Code 7333. Once she made the oath, that father was subject to criminal and civil sanctions. Shannon’s Code 7334. Oath of the mother was required and only oath of the mother would suffice.

T.C.A. § 36-2-103(a)(l) expressly provides that the petition to establish paternity may be brought by the mother, or her personal representative, or, if the child is likely to become a public charge by the state department of human services. Under section (a)(3) of the statute, it is provided that the action may be brought even after the death of the mother by the child acting through a guardian or next friend. It is noteworthy that the statute does not require the personal representative, the departmental representative, or other such person to be one having personal knowledge. It is obvious from these provisions that a petition may be brought upon information and belief by one not having personal knowledge, but that it must be brought in good faith and upon the basis of reliable information possessed by the person or persons acting in behalf of the child.

In the case at bar, the notarized petition is by Jack Wilson, a child enforcement administrator with the state. Wilson asserts in his petition that Pearson is the daughter of Martin and Neilson, was born out of wedlock, is currently in the custody of Neilson, and is or is in danger of becoming a public charge. This oath is sufficient under our statute to bring the matter before the court. The first issue, therefore, is without merit.

The next issue raised on appeal is whether the court erred in admitting the deposition of Dr. Jerry Lynn Morrisey over the objections of Neilson. The deposition is [131]*131challenged for its alleged failure to comply with the T.R.Civ.P.

Notaries public are among other things authorized by statute to administer oaths and take depositions. T.C.A. § 8-16-302 (1988). See also T.R.Civ.P. 28.-01. The deposition of Dr. Morrisey was taken before Brenda Bush Nichols, Notary Public at Large, in and for the State of Tennessee. T.R.Civ.P. 30.06(1) requires that after certifying the oath and deposition of the witness, the officer “shall then securely seal the deposition in an envelope endorsed with the title of the action and marked ‘Deposition of (here inset name of witness)’ and shall promptly file it with the court in which the action is pending or send it by registered or certified mail to the clerk thereof for filing.” T.R.Civ.P. 30.-06(3) requires the party taking the deposition to give prompt notice of its filing to all other parties.

It is not disputed that the technical requirements of Rule 30.06 were not met. These technical requirements may properly be avoided by order of the trial court, T.R. Civ.P. 30.06(1), or by written stipulation of the parties, T.R.Civ.P. 29. The record contains no court order regarding the deposition and there is no written stipulation. To the contrary, the deposition states on its face that “[c]ounsel made no stipulations or agreements and the reading and signing of the completed transcript by the Doctor were not waived.” There being no exception to the rule, it is incumbent on the party taking the deposition to see that the rules are complied with.

If there are errors in a deposition. T.R. Civ.P. 32.04 is triggered. Pertinent to this case is T.R.Civ.P.

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Cite This Page — Counsel Stack

Bluebook (online)
771 S.W.2d 128, 1989 Tenn. App. LEXIS 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-department-of-human-services-ex-rel-martin-v-neilson-tennctapp-1989.