McIntosh v. Dep't of Human Serv.
| Docket Number: | 2003-CA-02138-SCT Linked Case(s): 2003-CA-02138-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 09-16-2004 Opinion Author: Graves, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Contempt - Child support - Additional paternity testing - Section 93-9-21(1)(c) - Section 93-9-23(3) Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley, Carlson, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 09-17-2003 Appealed from: Kemper County Chancery Court Judge: Edward C. Prisock Disposition: Entered a judgment adjudicating paternity. Case Number: 9033 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Gerald W. McIntosh |
LAUREL G. WEIR |
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| Appellee: | Department of Human Services | DAVID LEE LOVE DARRELL CLAYTON BAUGHN JAMES JASON BAYLES |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Contempt - Child support - Additional paternity testing - Section 93-9-21(1)(c) - Section 93-9-23(3) |
| Summary of the Facts: | The Mississippi Department of Human Services filed a complaint against Gerald McIntosh to determine the paternity of Deshun McDade, who had been born to Bobbie McDade. The chancellor entered an order compelling McIntosh, Bobbie, and Deshun to submit to blood testing. When the paternity evaluation report indicated there was a 99.96% probability that McIntosh was Deshun’s father, the court entered a judgment adjudicating McIntosh to be the father of Deshun. Ten years later, the court entered a child support order ordering McIntosh to pay $112 per month. McIntosh failed to comply, and DHS filed a complaint seeking the delinquent funds and seeking to have McIntosh held in contempt. The court found McIntosh to be in contempt and ordered his incarceration, with the condition that jail time would be suspended if McIntosh paid $500 on the back payments within 30 days. McIntosh appeals. |
| Summary of Opinion Analysis: | Issue 1: Additional paternity testing McIntosh argues that additional paternity testing should have been granted based upon section 93-9-21(1)(c). While the statute provides a mechanism for recoupment of costs when additional testing is needed, it does not detail the procedure to challenge the validity of genetic testing. That process is addressed in section 93-9-23(3), which provides that if the court, in its discretion, finds cause to order additional testing, then it may do so using the same or another laboratory or expert. McIntosh never supplied the court with any expert testimony that would show good cause why additional paternity testing was warranted. Without such evidence, the court did not abuse its discretion in not allowing additional testing. In addition, McIntosh’s request for additional paternity testing was made roughly nine years from the issuance of the original paternity evaluation. Any challenge to the paternity test or motion for additional paternity testing grossly exceeded the thirty days under section 93-9-23(2)&(3). Issue 2: Contempt McIntosh argues he should not have been held in contempt because the burden of proof was on DHS to prove by a preponderance of the evidence that he was not able to pay the judgment and DHS failed to meet this burden. In contempt actions involving unpaid child support, a prima facie case of contempt has been established when the party entitled to receive support introduces evidence that the party required to pay the support has failed to do so. The burden then shifts to the paying party to show an inability to pay or other defense by clear and convincing proof. Here, DHS established a prima facie case of contempt. McIntosh provided no evidence of his inability to pay but merely described in general terms that he had no income or assets. Therefore, the court did not err in finding McIntosh in contempt. |
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