Litigation

Where a father discovers a child is not his biological offspring, he may move for a new trial to seek relief from future child support obligations; however, he may not be entitled to reimbursement for child support already paid or for vague litigation expenses related to the new trial. Cohen v. Nudelman, A04A1444, Court of Appeals of Georgia, September 9, 2004.

The parties were divorced in 1992. The divorce decree stated that the marriage produced two children. In 1996, the husband discovered that he was not the biological father of one of the children. Thereafter, he petitioned the court to award him custody of both children and served interrogatories on the wife that asked if he was the father of both children. The wife responded in the affirmative. In 1999, the husband obtained DNA testing and discovered that one of the children was not his biological child. In 2001, the husband moved to set aside the paternity and child support obligations of the nonbiological child; in addition, he requested reimbursement for previous support payments and litigation expenses. After a hearing in 2003, the trial court relieved the husband of all future child support obligations relating to the nonbiological child and also awarded the husband reimbursement for past support payments and litigation expenses. The wife appealed and the appellate court affirmed in part and reversed in part. The appellate court affirmed the relief from the obligation of all future child support payments, but reversed the award of reimbursement for past support payments and litigation expenses. The court held that absent an abuse of discretion, which it did not find, the trial court had legitimately held, based upon enough credible evidence, that the husband was not the biological father of one of the children. He was therefore entitled to a termination of his child support obligation as it related to that child. The appellate court found that the doctrines of res judicata and collateral estoppel did not apply because the trial court had rendered its decision after a new trial with newly discovered evidence. However, the husband was not entitled to reimbursement of past child support payments because nothing in Georgia law provided for such an award. Furthermore, the husband was not entitled to litigation expenses because the husband did not provide any documentation as to the amount he spent during the litigation.