# FILED July 22, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF AP PEALS OF TENNESSEE AT JACKSON

JAMES DAVID GATLIN, ) ) Plaintiff/Appella

nt, ) Gibson Chancery No. H-2254

) vs. ) ) DEANNA E. GATLIN, ) Appeal No. 02A01-9710-CH-00267 ) Defendant/Appellee. )

APPEAL FROM THE CIRCUIT COURT OF GI BSON COUNTY AT HUMBOLDT, TENNESSEE

THE HONORABLE GEORGE R. ELL IS, JUDGE

For the Plaintiff/Appellant : For the Defendant /Appellee : David M. Livingston Deanna E. Gatlin , Pro Se Brownsville, Tennessee Trenton, Tennessee For the Minor Child, William James Nathan Melton : Jerald M. Campbell, Jr. Trenton, Tennessee

AFFIRMED

HOLLY KIRBY L

ILLARD, JUDGE

CONCUR: W. FRANK CRAWFORD, P. J., W.S. ALAN E. HIGHERS, J.1 This statute has been amended, and no longer includes the phrase, “at the initial

proceeding.” Be

cause the trial c

ourt’s order wa

s entered prior t

o the effective

date of this amendment, the amended statute is not applicable in this case. OPINION This is a paternity case. The mother and father married after the child was born, and later divorced. In the divorce de cree, the fathe

r was ordered to

pay child support. The father later

sought to set aside the order of child support and requested parentage testing. The trial court denied t he father’s petitio

n, and he appeale

d. We affirm. On December 17, 1986, William James Nathan Melton (“William”) was born to Deanna Melton, the defendant-appellee in this case. Deanna Melton was living with James David Gatlin

at the time of the child’s birth. Melton and Gatlin married on July 1, 1989. Gatlin (“Husband”) subsequently filed for divorce aga

inst Melton (“Wife

”). In his divorce complaint, Husband averred that William was his child, and sought custody. By decree dated March 27, 1991 , the Chancery Court of Gibson County granted the parties a divorce and awarded joint custody of William to Husband and Wife, with primary cu stody to Wif e. The trial cour

t also ordered Husband to pay child support of $25 per week, and to pay all medical expenses for William. On November 9, 1995, Husband filed a petition to set aside the March 27, 1991 order, on the grounds that William was not his child. Husband also requested parentage testing. The trial court deniedthe petition and issued a finding of fact

that Husband “believed the said minor child, William James Nathan Melton, was his child after the conception of the said minor child; during the marriage of the parties; and after

the divorce while the parties had resumed living together.” The trial court also found Husband $4,736.61 in arrears in his child support obligation. Husband appealed. Tennessee Code Annotated § 24-7-112 governs a party’s right to demand parentage testing. 1 Subsections (a)( 1) and (a)(2) a ddress the conditi

ons under which a

court may order s

uch a test: (a)(1) In the trial of any civil or criminal proc eedi ng in which the question of parentagearises, the court before whom the matter may be brought, upon the motion of either party at the initial appearance, shall order that all necessary parties submit to any tests and comparisons which have been developed and adapted for purposes of establishing or disproving parentage. Tests for determining paternity may include any blood, genetic, or DNA test utilized by an accredited laboratory. Failure to make a timely motion for su

bmissio n to such tests and comparisons shall constitute a waiver and shall not be grounds for a c ontinuance. The results of such tests and comparisons,

including the statistical likelihood of the alleged pare

nt's parentage,

if available, may be admitted into evidence as provided in subsection (b). (2) During any civil proceeding in which the question of parentage a

rises, upon the motion of either party or on the court's own motion, the court shall, at such time as it deems equitable,

order all neces sary parties to su bmit to any tests and comparisons2

which have been

developed and adapted for purposes of establishing or disproving parentage. Tests for determining paternity may include any blood, genetic, or DNA test utilized by an accredited laboratory. Failure of either party to make a motion for submission to such tests and comparisons shall constitute a waiver and shall not be grounds for a continuance. The results of such te

sts and comparisons, including the statistical likelihood of

the alleged parent's parentage, if available, may be admitted into evidence as provided in subsection (b). Under section (a)(1), testing is required if one of the parties raises the issue of parentage in the initial pleading. If the issue is raised after the initial pleading, (a)(2) gives the trial court the discretion to de t ermine whether to permit the testing. See Davis v. Davi s , No. 03A01-9509-CH-00327, 1996 WL 12584, at *1 (Jan. 1 1, 1996); State ex rel Scot t v. Brown , 937 S.W.2d 934, 937 (Tenn. App. 1996); Williams v. Campbell, No. 02A01-9408-JV-00177, 1995 WL 429265, at *2 (Tenn. App. J uly 21, 1995); Steioff v. Steioff , 833 S.W.2d 94 (Tenn. App. 1992). The party requesting parentage testi ng must make the re

quest in his initial appearance in the proceeding in which the issue of parentage is raised. Tenn. Code Ann. § 24-7-112(a)(1). In this case, Husband filed a complaint f or divorce in

which he sought custody of William. In the divorce decree, signed by Husband, Wife was awarded custody “of the parties' mino r child” an d Husband was ordered to pay $25 per wee

k in child support. H

usband’s petiti

on to set aside the orde

r for child support arose out of the divorce and custody proceeding. He failed to request paren

tage testing in his “initial appearance” in the proceeding in which parentage was an issue. See Steioff v. Steioff , 833 S.W.2d 94, 96 (Tenn. App. 1992). Indeed, Husband sought parentage testing four years after the divorce was fina

l. Parentage testing was therefore not required in this case under Section 24-7- 112(a)(1). Id. at 96. Husband argues that the trial court abused its di scretion in denyin

g his request for parentage testing. In his brief, Husband asserts that it was not until eighteen months after the divorce that Wife informedhim thathe may not be the father of the child. Because the divorce was granted in March, 1991, Wife’s alleged statement occurred in August 1992. However, Wife not es that the parties continued to live together un til Septembe r 1994, and that Husband has maintained a father-son relationship

with William. The petition for parentage testing w as not filed until November 1995. Under these circumstances, the trialcourt did not abuse its discretion in denying Husband’s petition for parentage t

esting. Tenn. Code

Ann. § 24-7-112(a

)(2); see State ex rel Duc k v. Williams , No.3

02A01-9604-JV-00084, 1997 WL 675459 , at *3 (Tenn. App. Oct. 29, 1997); Davis v. Davis , No. 03A01-9509-CH-00327, 1996 WL 12584, at *2 (Tenn. App. Jan. 11, 1996). The decision of the tr

ial court is

aff irmed. Costs are assessed against the Appellant, for which execution may issue, if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRANK CRAW

FORD, P. J., W.

S.

ALAN E. HIGHERS, J.