May 3, 2017
From Beaufort County Jerry D. Vinson, Jr., Family Court Judge
Sharnaisha Naki Richardson-Bax, of The Bax Law Firm, PA, of
Beaufort, for Appellant.
O. Shaw, III, of Charleston, for Respondent South Carolina
Department of Social Services Child Support Division.
Rogers, of Charleston, Pro Se.
Addison D. Fender, of Fender Law Firm, of Beaufort, as
Guardian Ad Litem.
Ashburn appeals the family court's order denying relief
from a previous order of paternity that found him to be the
father of minor child E.A. (Child). Ashburn argues it is no
longer equitable that the paternity order, wherein Ashburn
acknowledged paternity of Child, have prospective application
because genetic tests show Ashburn is not Child's
biological father. He also argues the family court failed to
(1) conduct an analysis on the potential adverse impact of
the determination on the public interest and (2) consider the
best interests of Child. We reverse.
and April Rogers (Mother) were involved in a relationship
lasting from late 1999 to early 2000. Mother became pregnant
during this time and she gave birth to Child in October 2000.
Ashburn is Caucasian, Mother is African-American, and Child
is biracial. Mother informed Ashburn that he was the only
Caucasian with whom she had been intimate. At the time,
Ashburn was enlisted in the United States Marine Corps and
stationed at Parris Island in Beaufort, South Carolina.
Ashburn did not attend Child's birth and did not visit
Child until the Marine Corps required him to when Child was
seven months old.
Ashburn was served with an Administrative Process Notice of
Financial Responsibility and Paternity Determination, and an
administrative conference was held on March 28, 2001.
Although Ashburn was given the opportunity to request genetic
testing at the conference, he waived it. The family court
prepared an Administrative Process Order of Financial
Responsibility that Ashburn and Mother signed. The order
required Ashburn to pay $100.00 semimonthly in child support.
In the order, Ashburn admitted to being the natural father;
the order states "[non-custodial parent] freely and
voluntarily acknowledged paternity" of Child.
2002, Ashburn signed an agreement with the Department of
Social Services (DSS) requesting genetic testing, but he
failed to submit a sample. In 2003, Ashburn was re-stationed
in Japan, and contact ceased between Ashburn, Mother, and
Child. Thereafter, Ashburn did tours of duty in Iowa and
Hawaii, and as of June 2014, he was serving in North
November 2012, Mother requested the family court modify
Ashburn's child support obligation. The following month,
Ashburn requested visitation with Child, and the parties
agreed to arrange a visit. Ashburn met with Child in
Charleston, South Carolina. During this visit, Ashburn
obtained a genetic sample from Child and submitted his and
Child's genetic samples with a drug-store DNA kit for
paternity testing. The test excluded Ashburn as Child's
on the results of the self-conducted DNA test, Ashburn filed
an independent action to disestablish paternity in April 2013
on the grounds of fraud and material mistake of fact. DSS
scheduled genetic testing of Ashburn and Child, and the
results confirmed Ashburn was not the biological father of
June 2014 hearing on the petition to disestablish paternity,
Mother testified she could not understand the results of the
DNA test because Ashburn was the only Caucasian man with whom
she had been intimate. However, in responding to the family
court's examination, Mother subsequently admitted she had
become intoxicated one night while at a party with a
Caucasian male friend and "something" could have
happened-this was apparently around the time of Child's
conception. The family court found there was no extrinsic
fraud to support relief from the previous determination of
paternity and Ashburn was the legal father of Child. Ashburn
filed a motion for reconsideration arguing for the first
time, pursuant to Rule 60(b)(5), SCRCP, "it [was] no
longer equitable that the judgment should have prospective
application." The family court denied the motion for
reconsideration. This appeal followed.