IN THE COURT OF APPEALS

OF THE

STATE OF MISSISSIPPI

NO. 97-CA-00739-COA

LISA MARIE FRY PERKINS RAFFERTY APPELLANT

v.

VERNON WAYNE PERKINS, JR. AND GERALD F. EASTER APPELLEES

DATE OF JUDGMENT: 04/07/1997

TRIAL JUDGE: HON. PERCY LEE LYNCHARD

COURT FROM WHICH APPEALED: DESOTO COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANT: GERALD W. CHATHAM SR.

ATTORNEYS FOR APPELLEES: JACK R. JONES III

RONALD LOUIS TAYLOR

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

TRIAL COURT DISPOSITION: JUDGMENT IN FAVOR OF VERNON WAYNE PERKINS

ADJUDICATING HIM TO BE THE BIOLOGICAL FATHER

OF JUSTIN PATRICK PERKINS

DISPOSITION: REVERSED AND REMANDED - 05/18/99

MOTION FOR REHEARING FILED: 6/1/99; denied 08/17/99

CERTIORARI FILED: 09/02/99; granted 10/21/99

MANDATE ISSUED:

EN BANC.

McMILLIN, C.J., FOR THE COURT:

¶1. This case is an appeal prosecuted in the name of Lisa Marie Perkins Rafferty as next friend for her

minor child, Justin Patrick Perkins. The issue on appeal is whether a jury verdict on the question of the

child's paternity may be permitted to stand. We will assume for the moment, but only for purposes of

discussion, that this child has a legitimate interest in further pursuing a legal determination of his biological

paternity. Based on that temporary assumption, which we otherwise leave as an open question to be

addressed on remand, we reverse the jury verdict as being against the weight of the evidence. We remand

for such further proceedings as may be appropriate after all the issues discussed in this opinion have been

resolved with the view of advancing the best interest of the child at every step.
I.

Facts

¶2. Vernon Wayne Perkins, Jr. and Lisa Marie Fry Perkins Rafferty were married and living in Desoto

County. Mrs. Rafferty, at the age of nineteen, began working as a receptionist in a Memphis law firm and

became involved in an on-again off-again sexual relationship with Mike Rafferty, an attorney in the firm. Mr.

Rafferty was also married at the time this relationship began. During the course of the relationship, Mrs.

Rafferty became pregnant. Although she suspected that Mr. Rafferty was the father of the child, she did

nothing to make her suspicions known. Rather, she remained in the marital relationship with Mr. Perkins

and, when the child, Justin Perkins, was born, she had Mr. Perkins listed as the father on the child's birth

certificate. Mr. Perkins and Mrs. Rafferty were later divorced. In that proceeding, both parties represented

to the chancellor under oath that Justin Perkins was their child, born in wedlock. The parties agreed to

share joint legal custody of the child and Mr. Perkins committed to paying periodic child support, which,

insofar as the record indicates, he has paid faithfully and Mrs. Rafferty has accepted just as faithfully.

¶3. After Mrs. Rafferty's divorce from Mr. Perkins, Mr. Rafferty also obtained a divorce and the two were

married. At some point, Mrs. Rafferty determined to have scientific blood testing done to establish that Mr.

Rafferty was, in fact, the biological father of the child, Justin Perkins. To her apparent surprise, this turned

out not to be the case. As a result, Mrs. Rafferty began to explore the possibility that her pregnancy may

have arisen out of a one-time extramarital sexual encounter with another Memphis attorney, Gerald Easter.

When confronted with the possibility of his paternity of the child, Mr. Easter agreed to undergo paternity

testing, the results of which indicated a greater than 99% probability that he was Justin Perkins's biological

father.

¶4. Mrs. Rafferty, possessed of this information, commenced an action in her own name and as next friend

for her minor son in the Desoto County Chancery Court against her former husband, Mr. Perkins, asking

that Mr. Easter be declared the true biological father of the child. On its face, the complaint was not

intended to derive any benefit for the child from this adjudication of paternity. Mrs. Rafferty sought no

support from Mr. Easter for the benefit of her son and did not ask that her son be declared a legal heir of

Mr. Easter. To the contrary, Mrs. Rafferty alleged quite openly that the purpose of the litigation was to have

her child "declared not to be the child of Vernon Wayne Perkins" so that her present husband, Mike

Rafferty, could adopt the child, the anticipated adoption proceeding to "be joined in by the child's biological

father, Gerald Easter, and filed immediately upon this Court's determination of paternity."

¶5. After much procedural wrangling, the details of which have little to do with our decision, the matter

wound up with Mrs. Rafferty withdrawing as a plaintiff in her own name, but remaining in the litigation solely

as next friend of her child. A guardian ad litem was appointed for the child, but the guardian took no active

part in the conduct of the litigation beyond filing two brief letters. The first letter stated, without further

explanation, that he, "having met with the parties and pertinent individuals believe[d] it to be in the best

interest of the child that the Motion For Blood Testing of Vernon Wayne Perkins, Jr. be granted." The

second letter indicated that the guardian thought it was in the child's best interest for his "true lineage" to be

determined (a) for possible future medical needs and (b) so that the child could be told about this lineage "at

the appropriate time in his future, if he so desires to know . . . ." Beyond those perfunctory efforts, there is

no indication that the child's guardian ad litem played any significant role in the litigation. Rather, the actual

management of the litigation, from the plaintiff's standpoint, remained under the control of Mrs. Rafferty and
her attorney.

¶6. Ultimately, the putative biological father, Gerald Easter, was added as a defendant. Mr. Easter

voluntarily appeared in the case by joining in the motion to add him as a defendant. Mr. Easter never filed

an answer, was not represented by counsel, and took no part in the trial beyond testifying as a witness.

¶7. The case was tried first in Desoto County Court to a jury that returned a verdict adjudicating Mr. Easter

to be the biological father. However, the trial judge set aside that verdict and ordered a new trial on two

grounds. First, he determined that he should not have permitted the case to proceed in the child's name at

the sole insistence of the mother at a time when the mother and presumed father had joint legal custody of

the child and there was no evidence that the father had consented to the suit or that the chancellor had

approved the litigation after hearing any objection that the father might have. Secondly, he determined that

he had erred in admitting evidence of blood testing that had not been obtained pursuant to the provisions of

Section 93-9-23 of the Mississippi Code. After setting aside the judgment entered on the jury's verdict, the

judge also ordered the case transferred to Desoto County Chancery Court.

¶8. The case was ultimately retried before a jury in the chancery court. That jury returned a verdict in

the following form: "We, the jury, find in favor of Defendant Vernon Wayne Perkins, Jr." The

chancellor entered a judgment on the verdict that stated that "Vernon Wayne Perkins, Jr. is the

biological father of the child, Justin Patrick Perkins, and Gerald Easter is not the biological father of

the child, Justin Patrick Perkins."

¶9. The chancellor denied the plaintiff's motions for a JNOV or, alternatively, a new trial, and this appeal

was perfected.

¶10. Among other issues, Mrs. Rafferty, purporting to act as next friend of Justin Perkins, urges that the

county court verdict was correct and ought to be reinstated. Alternatively, she urges that the chancellor

erred in not granting a JNOV after the jury in that proceeding returned its verdict. Should we determine

either of these issues to have merit, we would be required to reverse and render a judgment adjudicating

Gerald Easter to be the biological father.

¶11. In the event we find it inappropriate to reverse and render a judgment to that effect, Mrs. Rafferty

alternatively urges that we ought to order a new trial on the ground that the chancery jury's verdict was

against the weight of the evidence. It is this final issue that we find to have merit.

II.

The Weight of the Evidence

¶12. Mrs. Rafferty argues that the results of the scientific blood testing were so compelling on the question

of Mr. Easter's paternity of her child that the jury's decision to disregard those test results was against the

weight of the evidence. She claims that there is not enough evidence in the record indicating that Mr.

Perkins (or anyone else, for that matter) was the biological father to overcome the overwhelming scientific

evidence brought to bear on the question.

¶13. Mr. Perkins counters with the argument that the presumption that he is the child's father, based on the

uncontradicted fact that the child was born during his marriage to Mrs. Rafferty is one of the strongest

presumptions recognized in the law. See, e.g., Baker v. Williams, 503 So. 2d 249, 253 (Miss. 1987);
Stone v. Stone, 210 So. 2d 672, 674 (Miss. 1968). He points out that the statute regarding introduction of

scientific paternity testing unequivocally says that, even when genetic testing demonstrates a probability of

paternity in excess of ninety-eight percent, the testing still creates only a "rebuttable presumption, affecting

the burden of proof . . . ." Miss. Code Ann. § 93-9-27(2) (Rev. 1994). Lastly, Mr. Perkins points out that

he testified that, during the period of the child's conception, he and Mrs. Rafferty were having normal

marital sexual relations, so that non-access of the father to the mother was not shown. Mr. Perkins urges

that the combination of these factors provide a sufficient undergirding to support the jury's verdict against

Mr. Easter's paternity.

¶14. As the Mississippi Supreme Court indicated in Karenina v. Presley, this Court cannot turn a blind eye

to scientific advancement. Karenina v. Presley, 526 So. 2d 518, 524 (Miss. 1988). Based on the premise

that it is, from a scientific standpoint, possible to absolutely exclude a person as being the father, we are

bound to accept the fact that the scientific testing in this case demonstrates beyond dispute that Mr. Perkins

is not the biological father of this child. We conclude that this seemingly-irrefutable evidence is sufficient to

overcome the common law presumption of paternity, though one of the strongest in the law, that arose by

virtue of the fact that the child was born during the marriage of Mr. Perkins and Mrs. Rafferty. In the

absence of the benefit of that presumption, we conclude that the scientific evidence of a 99.94% probability

of Easter's paternity invokes the statutory rebuttable presumption of paternity created by Section 93-9-

27(2). Finally, we determine that the remaining evidence in the record, even when viewed in the light most

favorable to upholding the verdict, was so inadequate as to lead us to conclude that the jury's verdict was

against the weight of the evidence and that the trial court erred in denying the new trial motion.

¶15. Nevertheless, on remand, before this case is retried, we conclude that certain matters must be

addressed to ensure that the best interests of this child are properly considered. We will now proceed to

discuss those matters.

III.

The Separate Interests of the Child in this Litigation

¶16. Chancellors, it has been rightly said, act as super guardian for minors who, for whatever reason, come

before the chancery courts of this state. Hill v. Smith, 558 So. 2d 854, 857 (Miss. 1990); Union

Chevrolet Co. v. Arrington, 162 Miss. 816, 138 So. 593, 595 (1932). This places a heightened duty on

the chancellor to be extraordinarily vigilant in seeing that the rights of these minors are protected when some

person, purporting to act as "next friend" of the minor seeks to assert some right in the child's name, even

when that "next friend" is a blood relation of the closest order of kinship. In the situation where the right

purportedly asserted for the benefit of the child, on closer inspection, appears to be primarily of benefit to

the minor's purported "friend," the need arises for the chancellor to be even more guarded in the course of

the proceedings.

¶17. On the face of this case, there can be little doubt that the litigation was commenced principally for the

benefit and convenience of Mrs. Rafferty and her new husband, Mr. Rafferty. Nowhere in the record or the

briefs is there an articulation as to why it was a matter of sufficient urgency to substantially and forever

disrupt the life of this seven-year-old child and tie up the limited judicial resources of this state to obtain a

formal adjudication that the child's biological father is a man who never had a meaningful relationship with

the child's mother and has no real intention of ever establishing any sort of relationship with the child.

Paternity suits, as any other litigation, ought to have some demonstrable beneficial purpose for the plaintiff,
especially when the plaintiff is a seven- year-old child. This Court has serious reservations that, viewed from

the best interest of this child - and not from the selfish standpoint of the child's mother and his new

stepfather (who, remarkably, does not even have sufficient standing to be a party to this proceeding) - there

was any prospect of advantage to this child by the commencement or continuation of this suit. It is difficult

to see that this litigation has any legitimate purpose beyond eliminating Mrs. Rafferty's former husband from

her child's life without any consideration by an objective person unconnected to the mother as to whether

that result would be in the best interest of the child. This view holds especially true on the particular facts of

this case, where paternity is not sought to be established to obtain some advantage for the child in terms of

monetary support, right of inheritance, or other benefit to be derived from the biological father. It is

essentially beyond dispute that the biological father has never expressed any interest in the child's welfare,

never offered any past support, never made any meaningful effort to form any emotional or familial bonds

with the child, and has not the slightest intention of doing so in the future. The biological father's sole role in

this litigation is to act as the necessary "straw man" to defeat Mr. Perkins's parental rights granted him under

long-standing and laudatory legal principles so that Mr. Perkins's place may be taken by Mr. Rafferty, who

enjoys no better biological claim to parenthood than does Mr. Perkins. This entire plan is a concoction of

the mother, the biological father, and the new husband, as evidenced by their pre-litigation pact of dubious

propriety regarding the subsequent adoption. It is an understatement, to say the least, to suggest that it is

difficult to discover how this scheme might be said to be advancing the child's best interest.

¶18. It is for this very reason that the Mississippi Supreme Court has suggested, in the strongest terms, that

a child in a situation such as this needs a guardian ad litem. Baker, 503 So. 2d at 253.

¶19. We observe that the chancellor in this case did appoint a guardian ad litem for the child. However, we

also observe that, based on our review of this record, it is evident that the guardian ad litem did not begin to

undertake his duties with the necessary independence that was so clearly indicated. When a guardian ad

litem is appointed for a child in a case which was commenced by an adult acting as "next friend," and when

that next friend clearly has an agenda in the litigation that may or may not run parallel with the best interests

of the child, we conclude that serving as a guardian ad litem means something more than undertaking to file

two brief letters with the court and leaving the primary management of the litigation to the next friend and the

attorney who is, beyond question, representing the next friend's interests and not necessarily those of the

child. Rather, it is our view that Baker contemplates the substitution of the disinterested guardian ad litem

for the conflicted next friend as nominal plaintiff. If the guardian ad litem is not an attorney, we conclude

further that the Baker decision contemplates that the guardian ad litem will retain counsel to represent the

child's interests that does not have the unavoidable conflict of interest that the former next friend's attorney

has. See Karenina v. Presley, 526 So. 2d at 520 (Biological father, who commenced suit, "withdrew as

next friend and Boris Badanov, Jr., an attorney, was appointed as guardian ad litem. . . .")

¶20. Having reached that stage in the matter, it can be seen that one of the fundamental duties of the

guardian ad litem is to give due consideration to the threshold question of whether it is in the child's best

interest to continue the litigation at all. There can be little doubt after the decision in Baker that the decision

as to whether to pursue the litigation, even if such a cause of action might exist, does not, in the final

analysis, lie with the mother. The mother, after a divorce in which she has represented to the court under

oath that the child is the product of the dissolving marriage and after she has reaped the benefits of that

representation through the receipt of child support, seems to be judicially estopped from actively pursuing,

in her own right, an adjudication that would have the effect of making a perjurer of herself. Ivy v.

Harrington, 644 So. 2d 1218, 1222 (Miss. 1994). To permit her to merely add her child's name to the
litigation, yet continue to actively control the course of the litigation, without any real inquiry as to whether

she were advancing the child's interest or her own selfish motives, would be to make a sham of the concept

of a minor as a distinct party in the litigation. This Court is not prepared to permit such an artful dodge to be

practiced on the judiciary of this state.

¶21. The child is the plaintiff in this suit - not the mother - and normally a plaintiff sues to gain some

advantage. There has been no showing as to how the true plaintiff would benefit from suing out this claim.

When the plaintiff, as in this case, is a child of tender years incapable of making informed decisions for

himself as to the advisability of pursuing a particular course of litigation, the law requires that the child's

interests be represented by a competent guardian ad litem, independently advancing the child's interests

even when those interests might prove antagonistic to a parent. It is the view of this Court that the guardian

ad litem appointed for the child failed utterly in considering the threshold question of whether this litigation

was advisable as advancing this child's welfare. Merely because a paternity suit can be brought does not

necessarily lead to the conclusion that it must be brought. In the only entry in the lengthy record of this case

where the guardian ad litem purported to address the advisability of continuing this litigation, the guardian

articulated only two reasons: (a) so that the child could be told about his parentage at some unspecified time

in the future if it turned out that the child himself wanted to know and (b) to meet any "future medical needs"

of the child. On the face of it, these considerations simply do not merit the continuation of this litigation.

Assuming that, at some time in the future, this child is interested in learning the identity of a biological father

whose sole interest in his life was to surrender him for adoption, then that information will be available

whether this litigation continues or not. As to the "future medical needs" claim, it must be assumed that the

guardian ad litem was addressing possible future medical problems that had a genetic component, so that

the treatment might depend on determining biological lineage. It is ludicrous on its face to suggest that, if this

child has some inherited genetic disorder, a doctor would decline to treat the child appropriately simply

because there was no court order adjudicating Easter to be his biological father.

¶22. It is certainly the case that there may be other legitimate reasons that it would advance the interests of

this child to continue to pursue an adjudication of his biological paternity. It is equally certain, however, that

if such reasons exist, they were not articulated by the guardian ad litem nor do they spring spontaneously to

the collective mind of this Court based on our review of this record. We do not, by our decision, foreclose

absolutely the possibility that the continued pursuit of this litigation would advance the child's interest, but

only observe that, until now, the basis for such a conclusion has not emerged.

¶23. The law, for obvious reasons, permits paternity actions when the determination of paternity is

somehow vital to the welfare of the child. The law, however, does not contemplate a "no paternity" action,

the sole purpose of which is to disprove the paternity of someone who enjoys the common law presumption

of paternity by virtue of his marriage to the mother at the time of conception. Evidence against the paternity

of a presumptive parent only becomes relevant when it would tend to establish paternity in another. This

case comes dangerously close to being merely an academic exercise in proving lack of paternity - an

exercise that ought not to be tolerated as being against public policy. The underlying purpose of the litigation

is clearly not to establish Mr. Easter's paternity for the purpose of gaining for the child those legal

advantages that would flow from such an adjudication. Mr. Easter, by his own admission, sits with pen in

hand ready to sign over his parental rights to Mr. Rafferty the moment the ink is dry on the judgment

establishing his parenthood.

¶24. Upon remand, before the case is retried on the merits, we direct that the following events occur:
1. That the issue of whether the child's mother is a necessary party be considered based on the fact that her

entitlement to future child support payments from Mr. Perkins hinges on the outcome of the litigation.

2. That an independent and fully-engaged guardian ad litem be appointed to represent the best interests of

this child in this litigation and that the costs of this representation be shared equally between Mrs. Rafferty

and Mr. Easter, and that the chancellor take reasonable measures to (a) inquire into the scope of the

representation that the guardian ad litem concludes will be necessary, (b) obtain a reasonable estimation of

the costs of that representation, and (c) make proper assurances, in advance, that both parties responsible

for paying these fees will unequivocally meet that responsibility so that the guardian ad litem may proceed to

fully represent the child's interests without the distracting concern of whether the guardian will be properly

compensated for this valuable service.

3. That present counsel of record for the child be removed from any further representation of the child's

interests because of the evident potential for conflict of interest that exists by virtue of the attorney's former

representation of the child's mother, individually.

4. That proper steps be taken to charge the guardian ad litem with making full inquiry into whether the

continued pursuit of an adjudication of Mr. Easter's paternity is in the child's best interest, when the sole

purpose of that litigation appears on its face to be, not to derive some positive benefit for the child from that

adjudication, but rather to merely cut off those paternal rights that are now granted to Mr. Perkins under the

law without any indication as to why such a determination would serve the child's interests. Such findings

and conclusions by the guardian ad litem, after full inquiry and consideration of all prospective benefits to

accrue to the child by an adjudication of paternity should be reduced to writing and filed with the clerk as a

part of the record of the case.

5. Assuming, for purposes of discussion only, that the guardian ad litem decides that the child's best interest

would be served by a continuation of this litigation, the chancellor should, nevertheless, in his role as super

guardian for this child, undertake his own inquiry into the reasoning of the guardian ad litem for continuing

the litigation to satisfy himself independently that there is some arguable basis for the notion that the child's,

and not the mother's, interest would be served by so doing.

¶25. In the event there is a determination made by the chancellor that this litigation does nothing to advance

the separate interests of the minor child, then this cause should be dismissed without prejudice; otherwise,

the matter would be subject to retrial on the merits upon the proper request of the guardian ad litem.

¶26. THE JUDGMENT OF THE CHANCERY COURT OF DESOTO COUNTY IS REVERSED

AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH

THIS OPINION. COSTS OF THIS APPEAL ARE DIVIDED EQUALLY BETWEEN LISA

RAFFERTY AND VERNON WAYNE PERKINS, JR.

SOUTHWICK, P.J., BRIDGES, COLEMAN, DIAZ, LEE, PAYNE, AND THOMAS, JJ.,

CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY

KING, P.J.
IRVING, J., DISSENTING:

¶27. With great deference to the collective wisdom of the majority, I must respectfully dissent from the

ultimate conclusion reached by my colleagues. I agree with the majority that this case must be reversed, but

since there is no basis for a retrial, I would simply reverse and remand to the trial court with directions to

enter an order adjudicating Gerald F. Easter the father of Justin Perkins and setting the appropriate amount

of child support. I am compelled to reach this conclusion because on the basis of this record, I find that

during the period when Justin Perkins was conceived, Lisa Marie had engaged in sexual relations with only

three persons, namely, Gerald F. Easter, Michael Rafferty, and Vernon Wayne Perkins, Jr. Rafferty and

Perkins have both been excluded as the biological father by DNA paternity testing. That leaves only Easter

whose probability of paternity was established at 99.94%.

¶28. This paternity case has its genesis in the Chancery Court of Desoto County where on September 23,

1993, Lisa Marie (Fry) Perkins Rafferty (Lisa Marie), individually and as next friend of Justin Patrick

Perkins, filed a paternity action against Vernon Wayne Perkins, Jr. (Vernon), her former husband. In her

petition, she alleged that while the parties were married she gave birth on March 3, 1992, to Justin Patrick

Perkins (Justin) and that subsequent to the divorce between her and Vernon, she had discovered through

scientifically-accepted tests that Vernon was not the natural father of Justin and that one Gerald F. Easter

(Gerald) was the biological father of Justin. A copy of the DNA test report was attached to the petition and

showed a 99.76% probability that Gerald was the biological father of Justin. A motion seeking to have

Vernon submit to a paternity blood test was filed contemporaneously with the petition for determination of

paternity.

¶29. Vernon answered the petition and denied the allegation that he was not the father of the child.

Additionally, he alleged that he was the presumptive father because Justin was born during the marriage and

that Mississippi law did not allow for blood testing of him.

¶30. On January 4, 1994, the chancellor overruled Lisa Marie's motion for blood testing of Vernon and

certified the issue to the Mississippi Supreme Court. The Supreme Court denied the interlocutory appeal on

June 2, 1994.

¶31. On December 29, 1994, the chancellor transferred the case to the County Court of Desoto County

pursuant to Lisa Marie's motion for transfer so as to allow a more speedy trial of the matter. On January

17, 1995, Lisa Marie sought a reconsideration of her motion to compel Vernon to submit to a blood test.(1)

On February 3, 1995, the county court judge appointed a guardian ad litem for Justin. On March 11, 1995,

the guardian ad litem advised the county court judge that it was in the best interest of Justin to have Vernon

blood tested. Thereafter, on May 9, 1995, the county court judge ordered Vernon to submit to a blood

test. On May 16, 1995, Vernon filed for an interlocutory appeal and stay of proceedings. On the same

date, the county court judge reversed himself as to requiring Vernon to submit to a blood test.(2)

¶32. On July 25, 1995, Lisa Marie filed a motion to join Gerald Easter as an additional plaintiff. Attached
to her motion was an affidavit executed by Gerald. In her motion she alleged, inter alia:

The plaintiff, Rafferty, would show that pursuant to Rule 19 M.R.C.P. that Gerald Easter is a party in real

interest in this case in that he is the biological natural father of the child, Justin Patrick Rafferty.

By joining in said motion the said Gerald Easter does hereby request that all relief requested in the Petition

to determine paternity of a minor be awarded to him and that said relief after hearing be afforded to him as

if it had been particularly prayed for in the original Petition.

Gerald Easter's affidavit, which was attached to the motion to join additional plaintiff, stated: I, Gerald

Easter, do hereby join in the Motion to be joined as an additional Plaintiff in the above styled and numbered

cause [as] my free and voluntary act and deed and for the purposes therein expressed and do hereby state

and affirm that the matters alleged in said motion are true and correct as therein stated.

¶33. On August 3, 1995, Vernon objected to the addition of Easter as a party plaintiff, alleging that Easter

was time barred by the general three-year statute of limitation. On November 22, 1995, the county court

judge overruled the motion to add Gerald as a party plaintiff on the basis that the three-year statute of

limitation barred such addition. On November 2, 1995, Vernon filed a motion to dismiss the paternity

action by Lisa Marie because same was alleged to be time barred by the one year statute of limitation. This

motion was overruled and the case set for jury trial on March 11 and 12, 1996. On December 13, 1995,

Vernon filed a motion to dismiss the paternity action, alleging, among other things, that he and Lisa Marie

had joint legal custody of Justin, that joint legal custody requires the parties to share equally in major

decisions, that Lisa Marie had pursued the paternity action without authorization from the chancery court.

This motion was also overruled. On March 8, 1996, Lisa Marie filed a motion to add Gerald as a defendant

and delete herself as a plaintiff. Additionally, she asked to be allowed to remain as the mother and next

friend of Justin. Attached to this motion was an affidavit of Gerald Easter wherein he swore, inter alia:

[T]hat he is an adult resident citizen of the State of Tennessee and does join in this Motion to be

added as a party Defendant realizing the legal consequences of said act and that he is a duly licensed

practicing attorney in and for the State of Tennessee and that he is fully aware of his rights, obligations

and responsibilities that may be attached to him as a result of joining in as a party Defendant in the

above styled and numbered cause and does hereby voluntarily appear in this cause of action as a

necessary party and does assent to being joined as a necessary party in order that complete justice

may be dispensed with regard to the minor child, Justin Patrick Perkins.

¶34. On March 11, 1996, Vernon filed a response to Lisa Marie's motion to delete herself individually and

add Gerald as a defendant. In his response, Vernon alleged:

Defendant, VERNON WAYNE PERKINS, JR,, has no objection to Plaintiff, LISA MARIE (FRY)

PERKINS RAFFERTY, removing herself as a Plaintiff in this case.

However, Defendant, Vernon Wayne Perkins, Jr., does object to the attempt by Lisa Marie (Fry) Perkins

Rafferty, under the guise of being the next friend of Justin Patrick Rafferty, to add Gerald Easter as a

defendant herein. First and foremost, in the Decree of Divorce filed between Vernon Wayne Perkins, Jr.

and Lisa Marie (Fry) Perkins, in cause number 92-4-532 in the Chancery Court of Desoto County,

Mississippi, the Chancellor ordered:

(2) That Plaintiff and Defendant are hereby awarded joint and physical legal custody and control of
the parties' minor child.

Since Vernon Wayne Perkins, Jr. has joint legal custody of Justin Patrick Perkins, Defendant

submits that Lisa Marie Fry Perkins Rafferty cannot unilaterally cause Justin Patrick Perkins

to bring an action for paternity against Gerald Easter. In fact, as Defendant has previously

argued, Lisa Marie (Fry) Perkins Rafferty did not have the authority to unilaterally file this

action against this Defendant, ostensibly on behalf of the minor child without the permission of

the joint custodian.

Thus Vernon Wayne Perkins submits that before the Court can even consider this latest motion of

Plaintiff or even proceed further with this action at law, the Court must dispose of the issue of whether

Lisa Marie (Fry) Perkins Rafferty has standing to pursue this action on behalf of the minor child, Justin

Patrick Perkins, without the permission of the joint custodian.

A second issue related to this motion is that Lisa Marie (Fry) Perkins Rafferty is also filing this Motion

to add Gerald Easter as a party without the benefit of the agreement of the guardian ad litem

appointed by this court for the sole purpose of determining the best interests of the child, Justin

Patrick Perkins. That is, even if this court could find that Lisa Marie (Fry) Perkins Rafferty had

the standing to file a paternity action against Gerald Easter without the agreement of Vernon

Wayne Perkins, that is not enough! The guardian at litem must also agree after a full

investigation into the matter that it is in the best interests of the minor child to file an action

for paternity against Gerald Easter. This is particularly crucial where the child recognizes

Defendant, Vernon Wayne Perkins, Jr. as his father; where Vernon Wayne Perkins, Jr. has provided

court ordered financial support to the child; where Vernon Wayne Perkins and the child especially

have very strongly bonded over the years since the child's birth; and where Defendant and

Defendant's parents are willing to retain and maintain that relationship regardless of who may be the

biological father.

On the other hand, Gerald Easter has apparently never had anything to do with this child, has not

supported him, has not bonded with him and there is no evidence that he intends to be a physical,

psychological and emotional "father" for the child. Given these circumstances, Defendant, Vernon

Wayne Perkins, Jr. submits that this Court should NOT grant the motion of Lisa Marie (Fry) Perkins

Rafferty, ostensibly as the next friend of Justin Patrick Perkins. Further, Defendant submits that the

Court should require the guardian ad litem to conduct a thorough investigation into the

physical and psychological benefits and detriments of continuing this cause of action.

Defendant further submits that the Court should then hold a full hearing concerning the

benefits and detriments as related to the best interests of the child. Any investigation by the

guardian ad litem should include extensive consultation with and testing by professionals in

the field of child psychology and child social relationships.

Wherefore, premises considered, Defendant, Vernon Wayne Perkins, Jr. respectfully moves the

Court to deny the Motion of Plaintiff, Lisa Marie (Fry) Perkins Rafferty ostensibly on behalf of the

minor child, Justin Patrick Perkins as not being in the child's best interest. (Emphasis added).

¶35. On March 11, 1996, the county court judge granted the motion to permit Lisa to withdraw in her

individual capacity and add Gerald as a party defendant. In the order permitting the amendment, the county

court judge ordered that the guardian ad litem be mailed a copy of the order and directed the guardian ad
litem to file any and all reports or responses that he deems necessary on or before March 19, 1996. On

March 19, 1996, the guardian ad litem filed, in letter form, the following report:

TO THE COURT:

The Guardian Ad Litem believes it to be in the best interest of the child that:

1. The true lineage of the child be determined.

2. That biological information be made readily available from the natural parents for any future

medical needs.

3. That the child be informed at the appropriate time in his future, if he so desires to know, as to the

truth of his natural lineage.

4. That whatever determination is made as to lineage, that the child be allowed reasonable visitation

and contact with the families, i.e. Perkins and Fry families to whom he has grown accustomed so long

as the environments of both families serve the best interest of the child's nurturing.

¶36. The case finally went to trial on April 30, 1996, and at the conclusion of the trial, the jury returned the

following verdict: "We the jury find that the defendant Gerald Easter is the biological father of the child,

Justin Patrick Perkins." The trial judge entered judgment accordingly. However, the county court judge

sustained a motion for new trial filed by Vernon. In granting Vernon's motion, the trial judge concluded: (1)

he had erred in allowing into evidence the results of the paternity blood tests taken by Gerald and Justin,

and (2) inasmuch as Lisa Marie and Vernon had joint legal custody of Justin, Lisa Marie should have

obtained the permission of the chancellor before proceeding with the paternity action. The trial judge held

that the blood tests were not performed in accordance with the statutory provisions of Miss. Code Ann.

§ 93-9-23 (Rev. 1994).(3) The county court judge then transferred the case back to the Chancery Court of

Desoto County with a recommendation that the chancellor appoint the existing guardian ad litem "to

continue to serve as guardian ad litem whose service will benefit the court and child as he is already most

familiar with this case."

¶37. On August 7, 1996, the chancellor, upon motion of Lisa Marie for blood tests pursuant to Miss. Code

Ann. § 93-9-21 (Rev. 1994), ordered Justin, Lisa Marie, Gerald and Vernon to submit to blood tests.

Pursuant to the court order, the tests were performed by Genetic Design, using DNA probe technology.

The results were: Vernon Wayne Perkins, Jr. was excluded as the biological father of Justin Patrick

Perkins, and Gerald Easter was given a 99.94% probability of being the biological father of Justin. The

results of these tests were admitted into evidence during the new trial held in the chancery court.

¶38. On March 21, 1997, the jury retired to consider its verdict and returned the following verdict: "We the

jury find in favor of Defendant Vernon Wayne Perkins, Jr." The chancellor entered judgment accordingly.

Justin, by and through Lisa Marie, filed a motion for a JNOV, or in the alternative, for a new trial. The

motion was overruled by the chancellor. It is from this ruling that this appeal emanates.

¶39. The following issues, taken verbatim from appellant's brief, are assigned on appeal:

ISSUE I.
The County Court erred in setting aside a jury verdict that Gerald F. Easter was the biological father of

Justin Patrick Perkins.

ISSUE II.

The Chancery Court erred by granting instructions D-2 and D-5 regarding the burden of proof which are in

conflict with P-3 and are prohibited by § 93-9-27 of Mississippi Code (As Amended) when the blood test

excluded Vernon Wayne Perkins as the biological father.

ISSUE III.

The Chancery Court erred by allowing the Defendant's attorneys to make arguments to the jury concerning

the method of blood test when Defendant, Vernon Wayne Perkins, did not challenge the method of the

blood test as provided by § 93-9-23 of the Mississippi Code (As Amended) and further erred by allowing

the defense counsel to make arguments concerning the absence of certain testimony of each and every

person who analyzed the blood pursuant to § 93-9-23 when such parties were available to the Defendant

to appear as witnesses pursuant to § 93-9-23.

ISSUE IV.

Defendant, Vernon Wayne Perkins, failed to rebut by a preponderance of the evidence the presumption of

paternity created by § 93-9-27 of the Mississippi Code (as amended) when the blood test presented a

99.94% probability that Gerald F. Easter was the father of Justin Patrick Perkins.

ISSUE V.

The verdict is against the overwhelming weight of the evidence and the Chancery Court erred by failing to

reinstate the original County Court verdict.

ISSUE VI.

The Chancery Court erred by failing to either grant a judgement notwithstanding the verdict or a new trial

because the verdict was against the overwhelming weight of the evidence.

¶40. The majority frames the issue on appeal as being "whether a jury verdict on the question of the child's
paternity may be permitted to stand." The majority then commences an expose on the personal life of Lisa

Marie which has little if anything to do with the real issues before the court. Who she slept with and why is

no business of this court, nor is the appropriateness of her moral code for this court to judge.

¶41. After implicitly frowning on the choices made by Lisa Marie, which led to the factual state of affairs

presented, the majority then, in the face of irrefutable scientific evidence, decides that this case should be

reversed but not rendered because the majority, in a very pious way, finds Lisa Marie's conduct

reprehensible, the guardian ad litem incompetent, and the attorney who represented Justin to be in conflict

because he previously represented Lisa Marie in her individual capacity.

¶42. One need not look beyond the matters which the majority orders must occur before the case is retried

to ascertain that the majority's real goal is to prevent the matter from ever being retried. None of the issues,

upon which the majority relies for its decision that the case should be remanded for further consideration,

were presented as an issue here. Further, the main basis for the majority's remanding the case is its

conviction that the interests of the child, Justin, were not served by the appointed guardian ad litem.

However, apparently, the chancellor found the guardian ad litem competent and that he rendered good and

valuable service. It would appear to me that the majority cannot, sua sponte, slam dunk the guardian ad

litem without first finding the chancellor in manifest error for appointing the guardian ad litem and accepting

the advice given by the guardian ad litem. Absolutely nothing in this record impugns either the integrity or

competency of the guardian ad litem. It should be pointed out that the county court judge recommended

that the chancellor appoint the same guardian ad litem for retrial of the case in chancery court who had

served the child's interest while the case was in county court. This, of course, is the same guardian ad litem

who the majority finds, by implication, rendered woefully inadequate service to the child.

¶43. What is equally indefensible to me is that the rationale adopted by the majority for reversing and

remanding for further consideration, incorporates the same argument made by Vernon in the court below in

his response to Lisa Marie's motion to delete herself individually and add Easter as a party defendant.

Vernon did not file a cross-appeal asserting any of the matters which form the cornerstone of the majority's

rationale for reversing for further consideration, even though he had raised those precise issues before the

court below. By what authority then does the majority, sua sponte, raise and then paternalistically instruct

on matters not raised by the parties? Could it be plain error? I think not. There is nothing so egregious, or

prejudicial to Justin, about a guardian ad litem having a different perspective than the majority about what is

in the best interest of the minor child.

¶44. The majority lambasts and depicts Lisa Marie and Gerald as co-conspirators involved in some

diabolical plot which could only be prejudicial to, and not in the best interest of, the minor child. I fail to see

the nexus in such a quantum leap in judgment. It is noteworthy that Justin, the minor child, has been in the

custody of Lisa Marie and her new husband, Michael Rafferty, since Justin was nine months old. It is true

that Vernon has had visitation with Justin on a regular basis since that time as well, but it takes more than the

majority's moral compass to convince me that it will be prejudicial to Justin's interest to allow an

adjudication as to his biological father because, as the majority says, the real purpose of such an

adjudication is to effectuate the adoption of Justin by Michael Rafferty, the stepfather. Well, as aforestated,

Michael has been with Justin since Justin was nine months old. What's the big deal? There is no allegation or

proof in this record that Michael would not be a suitable parent for Justin unless one accepts the not-sosubtle suggestion of the majority that because Lisa Marie and Michael had an adulterous relationship in a

former life, he is ipso factor declared persona non grata. Judging by this standard, many parties in second
marriages in this society would not be deemed suitable parents. Moreover, on the facts of this case, it is

beyond the judicial reach of this court to determine the propriety of whether Gerald should be permitted to

allow the adoption of his son, Justin, by Lisa Marie and Michael. In a paternity action, the issue is paternity,

not adoption. That Lisa Marie, in her petition for determination of paternity, stated that Gerald was

amenable to allowing Justin to be adopted after Gerald's paternity was established, does not change the

legal fact that adoption is not an issue in a paternity suit. Thus, this issue of adoption should be of no

concern to the court in resolving the true issue before it.

¶45. The majority focused much of its attention on the actions of Lisa Marie, the guardian ad litem and the

attorney representing Lisa Marie and Justin, and crafted a solution which the majority concludes, on

remand, will protect the interest of Justin, an interest which the majority strongly suspects has not been

protected thus far. While the evidence and issues before this court do not permit the majority to take the

liberty it has taken in crafting the resolution it has crafted, it appears to me that it could all be for naught

because like the plaintiff in Harrington, Gerald Easter alone could initiate a paternity action against Vernon

Wayne Perkins, Jr. In such a suit, neither Justin nor Lisa Marie would have to be a party, and the need for a

guardian ad litem would be eliminated. When Lisa Marie attempted to bring Gerald in as a plaintiff in the

present suit, Vernon's statute of limitation-based objection to Gerald's being brought in was sustained by the

county court judge. However, nothing in our statutes or case law prohibits a putative father from bringing a

paternity action more than three years after the birth of the child. Miss Code Ann. § 93-9-9 (Supp. 1998)

states in pertinent part as follows:

Paternity may be determined upon the petition of the mother, or father, the child or any public

authority....However, proceedings hereunder shall not be instituted by the Department of Human

Services after the child has reached the age of eighteen (18) years but proceedings may be instituted

by a private attorney at any time until such child attains the age of twenty-one (21) years unless the

child has been emancipated....

¶46. In Harrington, the putative father, Ivy, brought suit over five years after the mother of the children and

her husband had divorced. And what's more, the presumptive father, Phillip Harrington, had been granted

custody in the divorce proceeding of the two children alleged by Ivy to be Ivy's.

¶47. Further, I find no authority that even Lisa Marie was or is prohibited from bringing such a paternity

action in her individual capacity without first being authorized by the chancellor because of the custody

provision in the divorce decree. I am unconvinced that such a custody provision can override the clear

authority and privilege or right given in the above-quoted statute. I am mindful, however, of the argument

that would be made that Lisa Marie should be estopped from bringing such an action because of the recitals

contained in the divorce petition regarding the birth of the minor child. While a party seeking a divorce is

required to state in the petition or complaint whether minor children were born during the marriage, I would

not equate pleading a required allegation that a certain child or children were born during the marriage with

a declaration that the husband is the biological father of the child or children. And in this case, Lisa Marie

and Vernon resolved their marriage on the basis of irreconcilable differences. Parties to a divorce complaint

grounded on irreconcilable differences are not required to swear to any of the allegations in the complaint,

and even in a fault-based complaint, the party seeking the divorce is only required to swear that the

complaint "is not filed by collusion with the defendant for the purpose of obtaining a divorce, but that the

cause or causes for divorce stated in the complaint are true as stated." Miss. Code Ann. §93-5-7 (Rev.

1994). Hence, I can see no basis for a holding that Lisa Marie would be, or should have been, estopped
from bringing this action in her individual capacity.

CONCLUSION

¶48. Every impediment and subterfuge was utilized in the court below to prevent an adjudication of

paternity as to Justin Patrick Perkins, and in my humble opinion, I believe the majority continues the process

by its holding today. In the court below, there was first the attack that the case was not an action to

determine paternity but to terminate parental rights of the ex-husband. An effort was made to cure that

problem by bringing the putative father into the case as a party plaintiff. That effort was thwarted by the trial

judge in an erroneous reliance on an inapplicable statute of limitations and the exhorting of form over

substance. This is, in my opinion, plain error of which I would take note.(4) Next Lisa Marie was attacked

on the basis that she could not bring the action because she did not have the permission of the chancellor

who entered the custody order in the divorce decree. She moved to remedy this impediment, or more

appropriately put, this red herring, by moving to dismiss herself from the lawsuit in her individual capacity

and bring Gerald in as a party defendant. After this was done, the next hurdle was that she still could not

proceed because, even if she could proceed without a court order authorizing her to do so without

Vernon's consent, the assent of the guardian ad litem was necessary, and before the guardian ad litem could

render an opinion he needed to have a perfectly normal child pyschologically tested to determine if the child

would suffer some detriment as a result of these proceedings. The guardian ad litem made his report in favor

of the matter proceeding, presumably without subjecting the child to any psychological tests. Now this court

assails the guardian ad litem when that issue is not before the court.

¶49. All of this had taken place against a backdrop where the presumptive father has been absolutely

excluded as the father, and Gerald Easter has been given probabilities of 99.76% and 99.94%, in two

separate tests, that he is in fact the father of the minor child involved. Vernon Wayne Perkins, Jr. sought to

do in the court below what the empirical evidence forbids, and it appears to me that the majority continues

the unfortunate saga of the parties by engaging in a little social engineering to accomplish the same. While it

may be distasteful and offensive to the social values to some what Lisa Marie Perkins Rafferty did in

seeking to have Gerald F. Easter declared to be the natural father, I can find no statutory or case law

prohibiting what was done. Until the society as whole, through legislative action, voices its disdain for the

conduct decried by the majority's opinion, I believe we are without legal authority to do so. Additionally, I

cannot accept the notion that the child's interest was not necessarily served by the guardian ad litem. After

all, Justin was only nine months old when Lisa and her new husband, Mike Rafferty, were married. On

these facts, it is difficult to see how Justin would be so adversely affected by eventually being adopted by a

stepfather whom he has been around almost since birth.

¶50. Therefore, since Vernon Wayne Perkins, Jr. has been scientifically excluded as the biological father, I

do not see the point in remanding for a retrial because even in that eventuality, the results as to paternity,

would be the same as now if blood testing was redone on retrial. And the safeguards proposed by the

majority's opinion cannot keep this matter from proceeding without the safeguards if Gerald Easter, under

the authority of Harrington, proceeds to file his separate complaint against Vernon Wayne Perkins, Jr.

Finally, I am not insensitive to the plight of Mr. Perkins, but the cold facts are that what happened to him is

not novel in the annals of human history; it is just that scientific technology has now made it possible to

overcome some long held presumptions which heretofore gave us a measure of artificial comfort, or in some

cases, permitted us not to know and face the obvious. That was then and this is now. I regret that my

colleagues have not seen fit to forthrightly address a situation that technological advances have thrust upon
us.

KING, P.J., JOINS THIS SEPARATE WRITTEN OPINION.

1. The motion for reconsideration was based on the Supreme Court's holding in Ivy v. Harrington,

644 So. 2d 1218 (Miss. 1994). In Harrington, the putative father, Richard Ivy, brought an action to

establish paternity and asked for blood tests in a case where two children, alleged to be his, were born

during the marriage of Phillip Harrington and Pearlie Jernigan Harrington. Phillip Harrington was made a

defendant in Ivy's suit. Ivy alleged that he and Pearlie had had an adulterous relationship during Pearlie's

marriage to Phillip and that two (2) of the four children born during that marriage were Ivy's and not

Phillip's. The chancellor denied Ivy's request for blood tests and dismissed his petition. The Supreme Court

reversed and held that Ivy had standing to bring the action notwithstanding the fact that the children were

born during the mother's marriage to another, and that Ivy was entitled to have the blood tests. Id. at 1219.

2. The county court judge gave the following reason for reversing himself:

The paternity laws of the State of Mississippi are intended to affirmatively establish and determine the

natural father of the child. The petition filed herein is filed pursuant to the statutes regarding paternity under

Section 93-9-1, et seq, attempting not to affirmatively establish or determine paternity, but rather to rebut

one of the strongest presumptions known to law. The petition makes allegations that the biological father is

one other than Perkins. There is no contesting that Perkins is the man to whom Lisa Marie (Fry) Perkins

Rafferty (Rafferty) was married when the child, Justin Pat rick Perkins, (child) was born. Rafferty does not

name Perkins as the alleged father of the child. And while there is a request to declare the natural father to

be a person other than Perkins, that person did not initiate this proceeding as in Ivy v. Harrington, 644 So

2d 1218 (Miss.1994), nor is he named as a party. Therefore, the Court could not, and cannot, pursuant to

Mississippi paternity law, affirmatively determine paternity in this case without having before it the alleged

father.

After a thorough review of the pleadings identifying the parties before the Court, and a review of all

applicable law, the Court must reverse its earlier ruling and deny the request for an order requiring Perkins

to submit to blood-testing, and in so doing finds that Section 93-9-21 as amended cannot be used to

require Perkins to be blood-tested at this time due to the current makeup of the parties herein.

3. It is not clear from the record in which way the performance of the tests failed to comply with the

requirements of the quoted code section.

4. Of course, a holding that the trial judge improperly denied the request to allow Gerald Easter to enter the

case as a party plaintiff has significant ramifications because with Gerald in as a party plaintiff and Vernon in

as a defendant, there would be no need for Justin as a party appearing by and through Lisa Marie as next

friend. This arrangement would negate the need for a guardian ad litem. Hence, all the discussion about Lisa

Marie not being a proper party to bring the action, and about the alleged shortcomings of the guardian ad

litem, would be moot.