Tina Marie Hodge v. Chadwick Craig

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

November 2, 2011 Session

TINA MARIE HODGE v. CHADWICK CRAIG

Appeal by Permission from the Court of Appeals

Chancery Court for Maury County

No. 00-699 Jim T. Hamilton, Chancellor

No. M2009-00930-SC-R11-CV - Filed October 1, 2012

This appeal requires the Court to determine whether current Tennessee law permits the

former husband of a child’s mother to pursue a claim against his former spouse for

intentional or negligent misrepresentation regarding the identity of the child’s biological

father. Following the dissolution of their nine-year marriage, the former husband of the

child’s mother discovered that he was not the child’s biological father. He filed suit against

the child’s mother in the Chancery Court for Maury County, alleging that she had

intentionally misled him into believing that he was the child’s biological father. Following

a bench trial, the trial court found that the mother’s former husband had proved that his

former wife had intentionally misrepresented the parentage of the child and awarded him

$134,877.90 in compensatory damages for the child support, medical expenses, and

insurance premiums he had paid following the divorce, emotional distress, and attorney’s

fees. The child’s mother appealed. Even though the Court of Appeals determined that the

evidence supported the trial court’s finding that the child’s mother had intentionally

misrepresented the identity of the child’s biological father, it (1) reversed the damage award

based on the post-divorce payments for child support, medical expenses, and insurance

expenses on the ground that these damages amounted to a prohibited retroactive modification

of a child support order, (2) reversed the damage award for emotional distress, and (3)

reversed the award for attorney’s fees. Hodge v. Craig, No. M2009-00930-COA-R3-CV,

2010 WL 4024990, at *12 (Tenn. Ct. App. Oct. 13, 2010). The former husband filed an

application for permission to appeal arguing that Tennessee should permit recovery in cases

of this sort for intentional or negligent misrepresentation of a child’s paternity. We have

determined that the existing common-law action for intentional misrepresentation

encompasses the claims made in this case by the former husband and that the trial court’s

damage award based on the former husband’s post-divorce payments for child support,

medical expenses, and insurance premiums is not an improper retroactive modification of the

former husband’s child support obligation.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals

Reversed in Part and Affirmed in Part and Remanded

W ILLIAM C. K OCH, J R., J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J.,

J ANICE M. H OLDER, C ORNELIA A. C LARK, and S HARON G. L EE, JJ., joined.

J. Russell Parkes, Wesley Mack Bryant, and Charles M. Molder, Columbia, Tennessee, for

the appellant, Chadwick Craig.

L. Samuel Patterson, Jr., Columbia, Tennessee, for the appellee, Tina Marie Hodge.

OPINION

I.

Chadwick Craig and Tina Marie Hodge met in a Future Farmers of America class at

Mt. Pleasant High School. They were both sixteen years old and in the eleventh grade.

Despite her youth, Ms. Hodge had already given birth to a daughter who was almost one year

old when Ms. Hodge met Mr. Craig. Mr. Craig and Ms. Hodge dated on and off through the

remainder of high school, although Ms. Hodge later characterized their relationship as “more

on than . . . off.” They were sexually intimate in this relationship.

Ms. Hodge broke up with Mr. Craig for several weeks during early October 1991.

During this hiatus, Ms. Hodge had sexual relations with Joey Hay. At one point Ms. Hodge

believed that she was pregnant with Mr. Hay’s child. However, after a negative pregnancy

test, she told Mr. Hay that she was not pregnant. Ms. Hodge returned to Mr. Craig following

her liaison with Mr. Hay, but she never told Mr. Craig that she had been intimate with Mr.

Hay. Accordingly, by her own admission, Ms. Hodge had sexual relations with both Mr. Hay

and Mr. Craig during the period when her son was conceived.

In early November 1991, Ms. Hodge told Mr. Craig that she believed she was

pregnant. Mr. Craig suggested a pregnancy test and accompanied Ms. Hodge to her

physician’s office when the test was performed. After Ms. Hodge informed him that the test

confirmed that she was pregnant, Mr. Craig, seeking reassurance, asked Ms. Hodge if she

was sure that he was the child’s father. Ms. Hodge responded that she was sure that he was

the child’s father and that the child could be no one else’s. Based on these assurances, Mr.

Craig proposed marriage to Ms. Hodge, and they were married on December 20, 1991. Ms.

Hodge gave birth to a son named Kyle Chandler Craig on June 11, 1992.

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Mr. Craig raised Kyle believing him to be his biological son. He also adopted Ms.

Hodge’s daughter. In 1999, Mr. Craig had a vasectomy after he and Ms. Hodge decided that

they did not desire more children. In October 2000, Mr. Craig took a job as an over-the-road

truck driver to better support his family. Several weeks later, Ms. Hodge informed him that

she was having an adulterous affair with Nicky Hodge who, at that time, was married to

another woman.

Ms. Hodge and Mr. Craig separated. In November 2000, Ms. Hodge filed a complaint

in the Chancery Court for Maury County seeking a divorce on the ground of irreconcilable

differences. The trial court entered a final divorce decree in February 2001 that incorporated

the parties’ marital dissolution agreement. The agreement provided that Mr. Craig and Ms.

Hodge would have joint custody of the children and that Ms. Hodge would be the primary

residential parent. Mr. Craig received visitation and was ordered to pay Ms. Hodge $250 per

week in child support for both children and to provide medical insurance for the children.

In January 2002, Ms. Hodge married Mr. Hodge. Eleven months later, Mr. Craig met

Autumn West, who lived in Bowman, Georgia with her daughter by a previous marriage.

Mr. Craig and Ms. West became engaged in March 2003. Mr. Craig moved to Georgia in

April or May 2003, and he and Ms. West were married in June 2003. In October 2003, Mr.

Craig requested the trial court to decrease the amount of his child support because the move

to Georgia had required him to take a lower paying job. Following a hearing in December

2003, the trial court entered an order in July 2004, reducing Mr. Craig’s child support to $180

per week and relieving him of the responsibility to provide medical insurance for the

children.

Mr. Craig faithfully paid his child support and regularly traveled to Tennessee to visit

Kyle and his adopted daughter. Eventually, Kyle expressed a desire to live with Mr. Craig

and his new family. Mr. Craig moved back to Maury County rather than uproot Kyle, and

in January 2005, the trial court approved a modified parenting plan designating Mr. Craig as

Kyle’s primary residential parent and Ms. Hodge as her daughter’s primary residential parent.

Following the entry of this order, Ms. Hodge began paying child support to Mr. Craig.

Mr. Craig and his new wife discussed having another child and on two occasions

talked with a physician about reversing his 1999 vasectomy. After considering the cost of

the procedure, the likelihood that the procedure would be unsuccessful, and the fact that Mr.

Craig already had a son to carry on the family name, they decided not to have the procedure.

At some point during 2006 or 2007, Mr. Craig began to question whether he was

Kyle’s biological father. His doubts sprang from his belief that Kyle did not resemble him,

comments made by others in the community, and an off-hand comment made by Kyle

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following a visitation with Ms. Hodge. In February 2007, Mr. Craig surreptitiously obtained

a DNA sample from Kyle while he was sleeping and submitted the sample for testing. The

test confirmed that Mr. Craig was not Kyle’s biological father.

Mr. Craig was unsure about the course of action to take after receiving the news that

he was not Kyle’s biological father. Initially, he decided to tell no one about the test and to

continue to treat Kyle as his child. However, in March 2007, after Kyle expressed a desire

to live with Ms. Hodge, Mr. Craig decided to tell Ms. Hodge and Kyle about the test.

When Mr. Craig told Ms. Hodge about the test results, she told him that he was

“crazy” and insisted on another test. Mr. Craig suggested that it would be helpful to consult

a counselor about how best to break the news to Kyle. However, Ms. Hodge decided that she

should be the one to tell Kyle that Mr. Craig was not his biological father. Accordingly, Ms.

Hodge told Kyle that Mr. Craig was not his biological father.

Kyle was understandably “shocked and confused and very upset” after Ms. Hodge

informed him that Mr. Craig was not his biological father. Even though Mr. Craig expressed

his desire to continue their relationship as before, Kyle told him that “it’s not the same now”

and that he wanted to live with Ms. Hodge. Later, Kyle said he would be willing to visit Mr.

Craig but that he did not want to have anything to do with Mr. Craig’s new wife. As a result,

Mr. Craig and Kyle have had little interaction since Kyle learned that Mr. Craig was not his

biological father.

In April 2007, Ms. Hodge filed a pro se petition requesting custody of Kyle, a court-

ordered blood test, and a modification of the order requiring her to pay child support. Ms.

Hodge represented herself at the June 29, 2007 hearing on her motion. After the parties

acknowledged in open court that Mr. Craig was not Kyle’s biological father, the trial court

entered an order on July 16, 2007, that, among other things, (1) returned Kyle to Ms. Hodge’s

custody, (2) terminated Ms. Hodge’s child support obligation, and (3) reserved all other

matters “including the filing of a [c]ounter [c]laim for a separate and distinct cause of action

which may be filed on behalf of Chadwick Bradley Craig against Tina Marie Hodge.”

In February 2008, Mr. Craig filed a “counter-petition” alleging that Ms. Hodge told

him that she was sure that the baby [Kyle] was his and that “the baby could be no one else’s”

when she knew or should have known that he was not the child’s biological father. Based

on these “intentional and or negligent misrepresentation[s],” Mr. Craig sought $150,000 in

compensatory damages and $150,000 in punitive damages. Ms. Hodge retained an attorney

and filed an answer on March 13, 2008. The answer raised no affirmative defenses but

denied that Mr. Craig asked Ms. Hodge in November 1991 to confirm that he was Kyle’s

father or that she ever had any reason to believe that Mr. Craig was not her child’s father.

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Mr. Craig, Ms. Hodge, and Kyle testified at the bench trial on March 24, 2009. Mr.

Craig testified that he would not have proposed to or married Ms. Hodge, that he would not

have adopted Ms. Hodge’s daughter, and that he would not have undergone a vasectomy had

he known that there was a possibility that another man was Kyle’s father. For her part, Ms.

Hodge testified that she did not intend to mislead Mr. Craig about her son’s parentage and

that she believed at the time that Mr. Craig was her son’s father. She also stated that she

would not have married Mr. Craig had she known that he was not her son’s father. Kyle

testified that he was not interested in seeing Mr. Craig “at this moment.”

In its order filed on April 3, 2009, the trial court observed that Ms. Hodge’s

“credibility . . . leaves much to be desired.” The court also found that Ms. Hodge “knew that

she and Joey Hay had sex and she knew there was a possibility that Joey Hay was the father

of this unborn child.” In addition, the court found that “[t]he fact that [Ms. Hodge] did not

tell [Mr. Craig] about her sex with Joey Hay and allowed [Mr. Craig] to do the things he did

after being told he was the father clearly shows her fraudulent intent to deceive [Mr. Craig]

into thinking he was the father.”

Based on these factual findings, the trial court concluded that Ms. Hodge “purposely

defrauded [Mr. Craig] into believing Kyle was his child, knowing she had sexual relations

with Joey Hay at the time and a count on one’s fingers would have revealed Joey Hay could

be the father.” As a result of Ms. Hodge’s misrepresentation and failure to disclose a

material fact, the trial court also concluded that she “practiced . . . fraud, misrepresentation

and failure to disclose a material fact from December 20, 1991 when they married until their

divorce February 9, 2001.”

After concluding that Ms. Hodge’s conduct amounted to “fraud, intentional

misrepresentation, [and] negligent misrepresentation,” the trial court awarded Mr. Craig

$23,030.24, “representing the total child support paid by Chadwick Bradley Craig,”

$2,214.20, “representing medical expenses and insurance premiums paid by Chadwick

Bradley Craig,” and $1,181.75 “for TRH Health Plans.”1 The court also awarded Mr. Craig

$100,000.00 “for the emotional distress suffered” and $8,451.71 in attorney’s fees.

Ms. Hodge perfected an appeal. She raised three issues in the brief and supplemental

brief she filed with the Court of Appeals. First, she asserted that the damage award based

on Mr. Craig’s child support payments, medical expenses, and insurance premiums was a

1

We note that the trial court’s damage award actually double counted the $1,181.75 in health

insurance premiums that Mr. Craig had paid. Exhibit 4 introduced by Mr. Craig reflects that the $1,181.75

in premiums paid to TRH was included in the $2,214.20 he claimed for both insurance premiums and medical

expenses.

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retroactive modification of child support that was prohibited by Tenn. Code Ann. § 36-5-

101(f)(1) (2010 & Supp. 2011), as construed by Rutledge v. Barrett, 802 S.W.2d 604, 607

(Tenn. 1991). Second, she argued that the facts did not support the trial court’s finding that

she engaged in fraud or misrepresentation. Third, she insisted that the $100,000 award for

emotional distress was speculative because Mr. Craig had failed to prove that he had suffered

a mental injury.

The Court of Appeals handed down its opinion on October 13, 2010. Hodge v. Craig,

No. M2009-00930-COA-R3-CV, 2010 WL 4024990 (Tenn. Ct. App. Oct. 13, 2010). After

giving appropriate deference to the trial court’s assessment of Ms. Hodge’s credibility, the

appellate court found “that a preponderance of the evidence supports the trial court’s finding

that [Ms. Hodge] made an intentional misrepresentation to [Mr. Craig] that the child she was

carrying was his and could have been fathered by no one else but him.” Hodge v. Craig,

2010 WL 4024990, at *7. However, the appellate court reversed the damage award for child

support, medical expenses, and insurance premiums because it amounted to retroactive

modification of the earlier child support order. Hodge v. Craig, 2010 WL 4024990, at *9.

It likewise reversed the $100,000 damage award for emotional distress based on its

conclusion that noneconomic damages could not be awarded for a misrepresentation claim.

Hodge v. Craig, 2010 WL 4024990, at *12. Finally, the appellate court vacated the award

of attorney’s fees because it had reversed all the other compensatory damage awards. Hodge

v. Craig, 2010 WL 4024990, at *12.

The Court of Appeals concluded its opinion by noting that the parties had presented

decisions from other states construing claims for “paternity fraud.” While the court found

that these cases presented “important considerations,” it declined to recognize a cause of

action for paternity fraud, Hodge v. Craig, 2010 WL 4024990, at *12, and also declined to

address whether an award for compensatory damages for pecuniary loss not related to child

support could be awarded or whether Mr. Craig would have been entitled to compensatory

damages for emotional distress had he asserted a claim for intentional infliction of emotional

distress. Hodge v. Craig, 2010 WL 4024990, at *12 n.12.

Mr. Craig filed a Tenn. R. App. P. 11 application for permission to appeal that raised

two issues – whether misrepresenting the paternity of a child is actionable as fraud,

intentional misrepresentation, or negligent misrepresentation and whether the award of

damages based on child support, medical expenses, and insurance premiums was an improper

retroactive modification of child support. We granted Mr. Craig’s application for permission

to appeal to address these two issues.

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II.

The scope of our review 2 in this case depends, in large part, on the issues that the

parties have presented to this Court. Subject to the exceptions in Tenn. R. App. P. 13(b),

issues are properly raised on appeal to this Court when they have been raised and preserved

at trial and, when appropriate, in the intermediate appellate courts3 and when they have been

presented in the manner prescribed by Tenn. R. App. P. 27.

A.

The outcome of a case is influenced, at least in part, by how the court approaches the

issues presented. See Bryan A. Garner, The Deep Issue: A New Approach to Framing Legal

Questions, 5 Scribes J. Legal Writing 1, 9 (1994-1995); Martineau, supra note 2, at 821.

Almost seventy years ago, Justice Felix Frankfurter observed that “[i]n law . . . the right

answer usually depends on putting the right question.” Rogers’ Estate v. Helvering, 320 U.S.

410, 413 (1943). Thus, a properly framed issue may be the most important part of an

appellate brief. Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of

Persuading Judges 83 (2008); David E. Sorkin, Make Issue Statements Work for You, 83 Ill.

B.J. 39, 39 (Jan. 1995).

Rather than searching for hidden questions, appellate courts prefer to know

immediately what questions they are supposed to answer. Bryan A. Garner, Garner on

2

“Scope of review” defines the issues that may be reviewed by an appellate court when an order or

judgment has been properly appealed. See Holt v. Legislative Reapportionment Comm’n, 38 A.3d 711, 738

(Pa. 2012); Kelly Kunsch, Standard of Review (State and Federal): A Primer, 18 Seattle U. L. Rev. 11, 13

(1994). It “refers to the matters (or ‘what’) the appellate court is permitted to examine.” Summers v.

Certainteed Corp., 997 A.2d 1152, 1160 n.11 (Pa. 2010). In contrast, the related, yet distinct, concept of

“standard of review” reflects the relationship and the allocation of power between reviewing courts and lower

tribunals. It defines how a reviewing court “must look at” the lower tribunal’s decision. Jeffrey P. Bauman,

Standards of Review and Scopes of Review in Pennsylvania – Primer and Proposal, 39 Duq. L. Rev. 513,

515 (2001). The standard of review “defines the level of examination the court may apply, including the

degree of deference it will accord to the [lower] court’s findings of fact and conclusions of law.” 19 James

Wm. Moore et al., Moore’s Federal Practice ¶ 206.1 (3d ed. 2009); see also Booth v. State, 251 P.3d 369,

372 (Alaska Ct. App. 2011); Fields v. Saunders, 2012 OK 17, ¶ 6 n.5, 278 P.3d 577, 580 n.5; Turner v.

Jackson, 417 S.E.2d 881, 887 n.5 (Va. Ct. App. 1992); Peplinski v. Fobe’s Roofing, Inc., 531 N.W.2d 597,

599 n.1 (Wis. 1995); Robert J. Martineau, Appellate Practice and Procedure 779 (2d ed. 1987)

(“Martineau”).

3

Issues not raised in the trial court or in the intermediate appellate courts may be deemed waived

when presented to this Court. Brown v. Roland, 357 S.W.3d 614, 620 (Tenn. 2012); see also In re Adoption

of E.N.R., 42 S.W.3d 26, 32 (Tenn. 2001); Alexander v. Armentrout, 24 S.W.3d 267, 273 (Tenn. 2000).

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Language and Writing 115 (2009); Robert L. Stern, Appellate Practice in the United States

§ 10.9, at 263 (2d ed. 1989). Accordingly, “[a]n effectively crafted issue statement will

define the question to be considered and begin disposing the court to decide in the client’s

favor.” Judith D. Fischer, Got Issues? An Empirical Study About Framing Them, 6 J. Ass’n

Legal Writing Directors 1, 25 (2009); see also State v. Williams, 914 S.W.2d 940, 948 (Tenn.

Crim. App. 1995) (stating that “[e]ach issue should . . . relate the conclusion that the party

wants the appellate court to reach”); Karl N. Llewellyn, A Lecture on Appellate Advocacy,

29 U. Chi. L. Rev. 627, 630 (1962) (stating that “the first thing that comes up is the issue and

the first art is the framing of the issue so that if your framing is accepted the case comes out

your way”).

Appellate review is generally limited to the issues that have been presented for review.

Tenn. R. App. P. 13(b); State v. Bledsoe, 226 S.W.3d 349, 353 (Tenn. 2007). Accordingly,

the Advisory Commission on the Rules of Practice and Procedure has emphasized that briefs

should “be oriented toward a statement of the issues presented in a case and the arguments

in support thereof.” Tenn. R. App. P. 27, advisory comm’n cmt. Appellants and parties

seeking relief under Tenn. R. App. P. 11 must include in their application for permission to

appeal4 and in their brief5 a statement of the issues they desire to present to the court and an

argument with respect to each of the issues presented.6 The issues should be framed as

specifically as the nature of the error will permit in order to avoid any potential risk of

waiver. Fahey v. Eldridge, 46 S.W.3d 138, 143-44 (Tenn. 2001); State v. Williams, 914

S.W.3d at 948.

Appellees who have not filed a notice of appeal and parties who have not filed a Tenn.

R. App. P. 11 application of their own have three options with regard to framing the issues

on appeal. First, they may simply accept the issues as framed by the appellant.7 Second, they

may reframe the issues presented by the appellant if they find the appellant’s formulation of

the issues unsatisfactory.8 Third, they may present additional issues of their own seeking

4

Tenn. R. App. P. 11(b) requires that an application for permission to appeal contain a statement of

“the questions presented for review and, for each question presented, a concise statement of the applicable

standard of review . . . .”

5

Tenn. R. App. P. 27(a)(4); see also Bunch v. Bunch, 281 S.W.3d 406, 410 (Tenn. Ct. App. 2008).

6

Tenn. R. App. P. 27(a)(7)(A).

7

Tenn. R. App. P. 27(b).

8

Tenn. R. App. P. 27(b).

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relief on grounds different than the grounds relied on by the appellant or the party filing the

Tenn. R. App. P. 11 application.9

Parties who have not filed their own application for permission to appeal may present

issues other than those presented by the appellant or party seeking Tenn. R. App. P. 11

relief.10 To do so, however, Tenn. R. App. P. 27(b) requires a party to include in its brief

“the issues and arguments involved in [its] request for relief as well as the answer to the brief

of the appellant [or party seeking Tenn. R. App. P. 11 relief].” See also Eller Bros., Inc. v.

Home Fed. Sav. & Loan Ass’n of Nashville, 623 S.W.2d 624, 625 (Tenn. Ct. App. 1981),

overruled on other grounds by Guiliano v. Cleo, Inc., 995 S.W.2d 88, 100 (Tenn. 1999). An

issue may be deemed waived, even when it has been specifically raised as an issue, when the

brief fails to include an argument satisfying the requirements of Tenn. R. App. P. 27(a)(7).

See Baugh v. Novak, 340 S.W.3d 372, 381 (Tenn. 2011); Sneed v. Board of Prof’l

Responsibility, 301 S.W.3d 603, 615 (Tenn. 2010). By the same token, an issue may be

deemed waived when it is argued in the brief but is not designated as an issue in accordance

with Tenn. R. App. P. 27(a)(4). See ABN AMRO Mortg. Grp., Inc. v. Southern Sec. Fed.

Credit Union, 372 S.W.3d 121, 132, (Tenn. Ct. App. 2011); Childress v. Union Realty Co.,

97 S.W.3d 573, 578 (Tenn. Ct. App. 2002).

B.

Mr. Craig has properly raised and presented two issues in this case. The first issue is

whether Ms. Hodge’s representations regarding the identity of her son’s biological father

may support a claim for common-law fraud, intentional misrepresentation, or negligent

misrepresentation. In the context of this issue, Mr. Craig asserts that we should follow the

lead of other state courts that have recognized a claim for “paternity fraud.” The second

issue is whether the trial court’s damage award derived from Mr. Craig’s post-divorce

payments of child support, medical expenses, and medical insurance premiums is an

impermissible retroactive modification of a child support order.

9

Tenn. R. App. P. 27(b).

10

The Advisory Commission on the Rules of Practice and Procedure has pointed out that Tenn. R.

App. P. 13(a) “permits the appellee to raise issues allegedly decided erroneously by the intermediate

appellate court.” Tenn. R. App. P. 11, 1999 advisory comm’n cmt. The Commission has also pointed out

that Tenn. R. App. P. 13(a) “rejects use of the notice of appeal as a review-limiting device” and, therefore,

that “[a] separate application for permission to appeal is not necessary to bring up a question of law . . . upon

Supreme Court review of the final decision of an intermediate appellate court.” Tenn. R. App. P. 13(a),

advisory comm’n cmt.

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The statement of the issues in Ms. Hodge’s brief required by Tenn. R. App. P. 27(b)

contains only two issues. The first issue, one also raised by Mr. Craig, is whether an award

of damages based on post-divorce payments of child support, medical expenses, and medical

insurance premiums is a retroactive modification of a child support order. The second issue

is whether damages for emotional distress and attorney’s fees may be awarded incident to a

claim that a child’s mother negligently, intentionally, or fraudulently misrepresented the

parentage of a child to her former spouse.

These two issues, however, are not the only issues contained in Ms. Hodge’s brief.

In the argument section of her brief, which, with the exception of several non-substantive

revisions, appears to be little more than a repetition of the arguments in the brief and

supplemental brief she filed with the Court of Appeals, Ms. Hodge raises at least three more

issues. First, she insists that Mr. Craig cannot recover for fraud because he did not include

a claim for fraud in his “counter petition.” Second, she urges this Court “not to establish new

law” permitting the recovery of damages for misrepresentations regarding paternity because

doing so would not be in a child’s best interests. Third, she asserts that the “totality of the

evidence” does not support a claim of misrepresentation.

Based on the statements of the issues contained in the briefs filed by Mr. Craig and

Ms. Hodge, the parties have properly presented two issues to this Court in the manner

envisioned by Tenn. R. App. P. 27. The first issue, presented solely by Mr. Craig, is whether

Ms. Hodge’s representations regarding the paternity of her son can support a claim of

common-law fraud, intentional misrepresentation, or negligent misrepresentation. The

second issue, raised by both Mr. Craig and Ms. Hodge, is whether a damage award derived

from Mr. Craig’s post-divorce payments of child support, medical expenses, and medical

insurance premiums is an impermissible retroactive modification of a child support order.

The issues regarding whether Mr. Craig is entitled to recover $100,000 in damages

for emotional distress and whether Mr. Craig is entitled to attorney’s fees are not before us

for two reasons. First, Mr. Craig did not take issue, either in his application for permission

to appeal or in his brief, with the decision of the Court of Appeals to vacate the awards for

emotional distress or attorney’s fees. Second, while Ms. Hodge may present issues that were

not presented by Mr. Craig, Tenn. R. App. P. 27(b) limits those issues to ones in which she

is seeking “relief from the judgment” of the Court of Appeals. The Court of Appeals ruled

in Ms. Hodge’s favor with regard to Mr. Craig’s claim for damages for emotional distress

and to the award of attorney’s fees. Therefore, Ms. Hodge could not have been seeking relief

from these portions of the judgment of the Court of Appeals. The issue regarding the proper

measure of damages in cases such as this one is likewise not before the Court because neither

party properly raised and presented this question.

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Ms. Hodge would have been well-served had the statement of the issues in the brief

she filed in this Court contained explicit issues matching the points made in the argument

section of her brief. However, despite the shortcomings regarding her presentation of the

issues, the argument section of the brief Ms. Hodge filed with this Court repeatedly asserts

that “the facts in this case do not support a finding of fraud or misrepresentation” on her part.

In light of the circumstances of this case, we will exercise our discretion to consider, in

addition to the issues that have been properly presented, whether the record supports the trial

court’s and the Court of Appeals’ determination that Mr. Craig proved all the elements of a

common-law intentional misrepresentation claim by a preponderance of the evidence.

III.

The threshold question in this case is whether, as a matter of public policy,

Tennessee’s courts should be permitted to entertain an action filed by the former spouse of

a child’s mother seeking to recover damages caused by the mother’s misrepresentations

regarding the identity of her child’s biological father. Mr. Craig asserts that these lawsuits

should be permitted either as actions for common-law intentional misrepresentation or

negligent misrepresentation or as a newly designated action for paternity fraud. Ms. Hodge

responds that this Court should “not establish new law” by permitting these actions because

they are contrary to public policy and inconsistent with a child’s best interests.

A.

Tennessee’s public policy is reflected in its constitution, statutes, judicial decisions,

and common-law rules. State ex rel. Swann v. Pack, 527 S.W.2d 99, 112 n.17 (Tenn. 1975)

(quoting Home Beneficial Ass’n v. White, 180 Tenn. 585, 588, 177 S.W.2d 545, 546 (1944)).

The determination of this state’s public policy is primarily the prerogative of the General

Assembly. Alcazar v. Hayes, 982 S.W.2d 845, 851 (Tenn. 1998); Cavender v. Hewitt, 145

Tenn. 471, 475-76, 239 S.W. 767, 768 (1922). While this Court’s role in declaring public

policy is limited, Taylor v. Beard, 104 S.W.3d 507, 511 (Tenn. 2003), it is less so when

Tennessee’s public policy is reflected in the state’s common law.

Tennessee is a common-law state. Powell v. Hartford Accident & Indem. Co., 217

Tenn. 503, 509, 398 S.W.2d 727, 730 (1966); Rush v. Great Am. Ins. Co., 213 Tenn. 506,

515, 376 S.W.2d 454, 458 (1964). The sources of the common law can be found in the

“usages, habits, manners, and customs of the people.” Jacob v. State, 22 Tenn. (3 Hum.)

493, 514 (1842). While the “law must be stable . . . it cannot stand still.” Roscoe Pound,

Interpretations of Legal History 1 (1923). Accordingly, the common law is evolutionary.

Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 502 (1984); Dunn v. Palermo,

522 S.W.2d 679, 688 (Tenn. 1975) (quoting Tesone v. School Dist. No. Re-2, 384 P.2d 82,

-11-

86 (Colo. 1963) (Frantz, C.J., dissenting)). It is flexible enough to adapt to the emerging

conditions of society. Cardwell v. Bechtol, 724 S.W.2d 739, 744 (Tenn. 1987); Box v.

Lanier, 112 Tenn. 393, 407, 79 S.W. 1042, 1045 (1904).

The courts should not and must not close their doors to changing conditions.

Metropolitan Gov’t of Nashville & Davidson Cnty. v. Poe, 215 Tenn. 53, 80, 383 S.W.2d

265, 277 (1964). Accordingly, it is now beyond reasoned argument that this Court has the

power to develop and adapt common law principles and their application. Cardwell v.

Bechtol, 724 S.W.2d at 744. Unless the General Assembly has acted to occupy an area

formerly governed by the common law, nothing prevents this Court from modifying existing

common-law rules, as long as these modifications reflect the changed environment.

Cardwell v. Bechtol, 724 S.W.2d at 744 (quoting Powell v. Hartford Accident & Indem. Co.,

217 Tenn. at 513, 398 S.W.2d at 732).

Common-law principles and rules govern unless they have been changed by statute.

Metropolitan Gov’t of Nashville & Davidson Cnty. v. Allen, 220 Tenn. 222, 230, 415 S.W.2d

632, 635 (1967). It is likewise beyond reasoned argument that the General Assembly, subject

only to constitutional limitations, has plenary power to alter the common law. Guy v. Mutual

of Omaha Ins. Co., 79 S.W.3d 528, 536 (Tenn. 2002); Lavin v. Jordon, 16 S.W.3d 362, 368

(Tenn. 2000); Southern Ry. Co. v. Sanders, 193 Tenn. 409, 415, 246 S.W.2d 65, 67 (1952).

Therefore, when the General Assembly has acted to occupy an area of the law formerly

governed by the common law, the statute must prevail over the common law in the case of

conflict. Knoxville Outfitting Co. v. Knoxville Fireproof Storage Co., 160 Tenn. 203, 206,

22 S.W.2d 354, 355 (1929). In areas of the law where the General Assembly has enacted

statutes that clearly and definitively set boundaries on rights, obligations, or procedures, we

have recognized that “it should be left to the legislature to change those boundaries, if any

are to be changed, and to define new ones.” Taylor v. Beard, 104 S.W.3d 507, 511 (Tenn.

2003) (quoting Norwest v. Presbyterian Intercommunity Hosp., 631 P.2d 1377, 1380 (Or. Ct.

App. 1981)).

In addition to being constitutionally based,11 our deference to the General Assembly’s

prerogative to establish Tennessee’s public policy rests on fundamental differences between

the judicial and legislative process. The courts develop common-law principles on a case-by-

case basis over time by deciding specific cases or controversies brought to them by particular

parties. Watson v. Cleveland Chair Co., 789 S.W.2d 538, 541 (Tenn. 1989). The courts’

11

Tenn. Const. Art. II, § 3 vests the legislative authority in the General Assembly. In addition, Tenn.

Const. Art. II, § 2 provides that “[n]o person or persons belonging to one of these departments [the

Legislative, Executive, and Judicial departments created in Tenn. Const. Art. II, § 1] shall exercise any of

the powers properly belonging to either of the others, except in the cases herein directed or permitted.”

-12-

decisions are based on the unique facts of each case and the application of the appropriate

legal principles to those facts. Unlike legislative proceedings, judicial proceedings do not

provide an open forum for the discussion and resolution of broad public policy issues. See

Smith v. Gore, 728 S.W.2d 738, 747 (Tenn. 1987).

B.

We candidly recognize that this case implicates the interests of the family, the putative

biological father, the mother, the child, the actual biological father, and the State. Cases

based on a mother’s misrepresentations regarding the identity of a child’s biological father

present difficult and intractible problems12 that are “much more complicated than a bad girl,

good guy scenario.”13 Those who oppose recognizing these claims insist that the courts’

primary concerns should focus on the child and the family14 and that the putative father’s

interests should be secondary to those of “the state, the family, and the child in maintaining

the continuity, financial support, and psychological security of an established parent-child

relationship.” Godin v. Godin, 725 A.2d 904, 910 (Vt. 1998); see also State Office of Child

Support Enforcement v. Williams, 995 S.W.2d 338, 340 (Ark. 1999). Those who support

these claims assert that there is “a fundamental sense that it is unfair to require a man to

support a child with whom he has no biological connection.”15 They also insist that there is

a growing recognition that the courts should not force a man to support a child who is not his

biological child unless he has been given an opportunity to make a voluntary choice to

provide support despite his knowledge that he has no biological relationship with the child.16

The legislative process provides the most appropriate forum within which to balance

these competing interests. In fact, legislatures in other states have already enacted legislation

12

Ronald K. Henry, The Innocent Third Party: Victims of Paternity Fraud, 40 Fam. L.Q. 51, 52

(2006) (“Henry”).

13

Melanie B. Jacobs, When Daddy Doesn’t Want to Be Daddy Anymore: An Argument Against

Paternity Fraud Claims, 16 Yale J.L. & Feminism 193, 196 (2004) (“Melanie B. Jacobs”).

14

Stephen A. Sherman, You Ain’t My Baby Daddy: The Problem of Paternity Fraud and Paternity

Laws, 5 Ave Maria L. Rev. 273, 296 (2007) (“Sherman”).

15

Paula Roberts, Biology and Beyond: The Case for Passage of the New Uniform Parentage Act, 35

Fam. L.Q. 41, 54 (2001).

16

Henry, supra note 12, 40 Fam. L.Q. at 51-52, 67-68.

-13-

intended to balance the interests at issue in cases of this sort.17 However, when the

legislature has not acted, the courts must address and resolve legal disputes arising out of

these circumstances using the available tools provided by the common law.

There can be little debate that the family plays a vital role in our society. Davis v.

Davis, 842 S.W.2d 588, 601 (Tenn. 1992); Perrin v. Perrin, 201 Tenn. 354, 366, 299 S.W.2d

19, 24 (1957); Tenn. Code Ann. § 36-3-113(a) (2010). Beginning with the enactment of the

Married Women’s Emancipation Act in 1913, which removed the disabilities of coverture,18

both the General Assembly and this Court have implemented evolutionary changes in the

law’s application to these relationships that mirror the changes in society’s views of marriage

and parentage.

In 1949, the General Assembly placed significant restrictions on filing lawsuits for

breach of a contract to marry.19 Forty years later, in 1989, the General Assembly repealed

the common-law tort claim for alienation of affections.20 The following year, the General

Assembly abolished the common-law claim for seduction or criminal conversation.21 During

this same period, this Court totally abolished the common-law doctrine of inter-spousal

immunity after determining that “[t]he legal abstraction of unity” of married spouses had

17

For example, Arizona and New Hampshire permit a putative father to seek reimbursement from

the child’s biological father. Ariz. Rev. Stat. Ann. § 25-503(F) (2007); N.H. Rev. Stat. Ann. § 168-A:2, III

(LexisNexis 2010) (liabilities of the father may be enforced by “other persons”). Idaho permits a putative

father to seek reimbursement from either the biological mother or the biological father. Idaho Code Ann.

§ 32-1009 (2006). On the other hand, Arkansas, Delaware, Florida, and Mississippi have enacted statutes

specifically prohibiting actions to recover previously paid child support. Ark. Code Ann. § 9-10-115(f)(1)(D)

(2009); Del. Code Ann. tit. 13, § 8-638 (2009); Fla. Stat. Ann. § 742.18(5) (West 2010); Miss. Code Ann.

§ 93-9-10(5) (Supp. 2011). See generally Kristen K. Jacobs, If the Genes Don’t Fit: An Overview of

Paternity Disestablishment Statutes, 24 J. Am. Acad. Matrim. Law. 249, 258-66 (2011); Melanie B. Jacobs,

supra note 13, 16 Yale J.L. & Feminism at 227-33; Sherman, supra note 14, 5 Ave Maria L. Rev. at 283-85.

18

Act of Feb. 20, 1913, ch. 26, 1913 Tenn. Pub. Acts 59 (codified at Tenn. Code Ann. § 36-3-504

(2010)).

19

Act of Apr. 8, 1949, ch. 161, 1949 Tenn. Pub. Acts 486 (codified at Tenn. Code Ann. §§ 36-3-401

to -405 (2010)).

20

Act of May 25, 1989, ch. 517, 1989 Tenn. Pub. Acts 902 (codified at Tenn. Code Ann. § 36-3-701

(2010)). Two years later, this Court abolished the tort retrospectively prior to the effective date of the 1989

legislation. Dupuis v. Hand, 814 S.W.2d 340, 345-46 (Tenn. 1991).

21

Act of Apr. 12, 1990, ch. 1056, 1990 Tenn. Pub. Acts 773 (codified at Tenn. Code Ann. § 39-13-

508 (2010)). One year later, this Court abolished this tort claim retrospectively prior to the effective date

of the 1990 legislation. Hanover v. Ruch, 809 S.W.2d 893, 898 (Tenn. 1991).

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become “an historical oddity rather than a functioning concept of law.” Davis v. Davis, 657

S.W.2d 753, 759 (Tenn. 1983). In addition, both the General Assembly and this Court placed

the legal onus on biological parents – both married and unmarried – to provide financial

support to their children.22

In 1997, the General Assembly replaced the legitimation and paternity statutes which

had severely restricted a biological father’s ability to obtain a judicial declaration to his

parentage.23 The stated purpose of this Act was to create “a single cause of action to

establish parentage of children” other than adoption proceedings or voluntary

acknowledgment of parentage. Tenn. Code Ann. § 36-2-301. The Act also abolished “the

[essentially conclusive]24 presumption that a child born to a married woman was the offspring

of the woman’s husband,” State ex rel. Cihlar v. Crawford, 39 S.W.3d 172, 176-77 (Tenn.

Ct. App. 2000), and provided in Tenn. Code Ann. § 36-2-305(b)(1)(C) that any man claiming

to be a child’s father had standing to seek a judicial determination of his parentage. In 1999,

after this Court narrowly construed the application of the 1997 Act, the General Assembly

enacted Tenn. Code Ann. § 36-2-304(b)(2)(B) to express its “clear and unequivocal” intent

that the new parentage statutes applied retroactively to parentage claims by biological fathers

that had been dismissed prior to May 24, 1999, either for lack of standing or because of the

now-repealed presumption arising from marital status of the child’s mother.25 State ex rel.

Cihlar v. Crawford, 39 S.W.3d at 178.

Two provisions in the 1997 Act and in a 1998 amendment to the Act reflect the

General Assembly’s awareness of the existence of actions to rebut or disestablish paternity

and the possibility that a person found not to be a child’s biological father could pursue a

claim for damages against the child’s biological parents. Tenn. Code Ann. § 36-2-304(b)(3),

enacted in 1998,26 states that “[t]he standard of proof in an action to rebut paternity shall be

by preponderance of the evidence.” Similarly, Tenn. Code Ann. § 36-2-309(b) states, in part,

that “[n]othing in this subsection (b) shall preclude the issuance of a judgment against the

22

Tenn. Code Ann. § 34-1-102(a), (b) (2007); Smith v. Gore, 728 S.W.2d at 750-51; see also State

ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 247 (Tenn. Ct. App. 2000).

23

Act of May 29, 1997, ch. 477, 1997 Tenn. Pub. Acts 862 (codified as amended at Tenn. Code Ann.

§§ 36-2-301 to -322 (2010)).

24

The presumption could be rebutted with evidence that the husband was infertile or that the husband

did not have access to his wife when the child was conceived. See Jackson v. Thornton, 133 Tenn. 36, 38,

179 S.W. 384, 384 (1915); Shell v. Law, 935 S.W.2d 402, 406 (Tenn. Ct. App. 1996).

25

See Act of May 24, 1999, ch. 339, 1999 Tenn. Pub. Acts 756.

26

Act of Apr. 29, 1998, ch. 1098, § 8, 1998 Tenn. Pub. Acts 1113, 1116.

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mother or actual biological father of the child or children in favor of the person subsequently

found not to be the father of the child or children.”

The General Assembly has not directly addressed the issues or interests implicated in

this case. We have carefully reviewed the Constitution of Tennessee and our decisions

construing it, as well as the existing statutes pertaining to families and domestic relations,

and find no distinct reflection that Tennessee’s public policy either favors or opposes claims

or remedies of the sort pursued by Mr. Craig in this case.

Our limited role in declaring public policy is particularly relevant when we are being

asked to recognize new causes of action that do not presently exist. Taylor v. Beard, 104

S.W.3d at 511. However, we are acting within our authority when we inquire whether public

policy prevents the continuing development of the common law. See Smith v. Gore, 728

S.W.2d at 747.

Misrepresentations to a prospective spouse that he is an unborn child’s biological

father “[go] to the essence of the marital relationship.” Miller v. Miller, 1998 OK 24, ¶ 44,

956 P.2d 887, 904 (recognizing a claim for fraudulent inducement to marry). Accordingly,

and in light of the historically broad reach of common-law actions for intentional

misrepresentation, we have determined that the public policy of this state, reflected in the

Constitution of Tennessee and the statutes enacted by the General Assembly, does not

prevent the former spouse of a child’s mother from pursuing common-law damage claims

against the child’s mother based on her intentional misrepresentations regarding the identity

of the child’s biological father.

While our decision in this case rests entirely on Tennessee law, we note that the courts

in five other states have recognized that a putative father may maintain an action for damages

for intentional misrepresentation or fraud against a child’s biological mother based on her

misrepresentations regarding the identity of the child’s biological father. Koelle v. Zwiren,

672 N.E.2d 868, 875 (Ill. App. Ct. 1996); Denzik v. Denzik, 197 S.W.3d 108, 112-13 (Ky.

2006); G.A.W., III v. D.M.W., 596 N.W.2d 284, 290 (Minn. Ct. App. 1999); Miller v. Miller,

1998 OK 24, ¶¶ 46-49, 956 P.2d at 904-05 (recognizing a claim for restitution of child

support based on extrinsic fraud); Masters v. Worsley, 777 P.2d 499, 502 (Utah Ct. App.

1989); see also John G. Hall, Note, Child Support Supported: Policy Trumps Equity in

Martin v. Pierce Despite Fraud and a Controversial Amendment to the Paternity Code, 61

Ark. L. Rev. 571, 588 (2008).27 One other court has recognized a claim by the putative father

27

Other courts have not permitted a putative father to recover from the biological mother for

intentional misrepresentation based on the effects of the proceeding on the child and their conclusion that

(continued...)

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against the child’s biological father. R.A.C. v. P.J.S., Jr., 927 A.2d 97, 104 (N.J. 2007)

(recognizing the claim but holding that this particular claim was barred by New Jersey’s 23-

year statute of repose). Other courts have concluded that similar misrepresentations by a

child’s biological mother regarding the identity of a child’s biological father constitute fraud

and provide a basis for setting aside an earlier adjudication of paternity. See, e.g., Williams

v. Williams, 2001-CA-01666-SCT (¶ 17), 843 So. 2d 720, 723 (Miss. 2003); Glover v.

Severino, 2008 PA Super 51, ¶ 26, 946 A.2d 710, 712-14; N.C. v. M.H., 2007 PA Super 123,

¶ 12, 923 A.2d 499, 503; Batrouny v. Batrouny, 412 S.E.2d 721, 723-24 (Va. Ct. App. 1991).

IV.

Having determined that public policy does not prevent the former spouse of a child’s

mother from pursuing a common-law damage claim based on her misrepresentations

regarding the identity of the child’s biological father, we must now determine whether

common-law actions for intentional misrepresentation or negligent misrepresentation may

be pursued in Tennessee and whether Mr. Craig has submitted sufficient evidence to prove

one or more of these claims.

A.

The law has never undertaken to precisely define fraud. The courts have long

recognized that “fraud assumes many shapes, disguises and subterfuges,” Waller v. Hodges,

45 Tenn. App. 117, 130, 321 S.W.2d 265, 271 (1958) (quoting 1 Henry R. Gibson, Gibson’s

Suits in Chancery § 456, at 520 (5th ed. 1955)), and that any effort to define fraudulent

conduct would be futile. SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 193

n.41 (1963) (“Fraud is infinite, and were a Court of Equity once to lay down rules, how far

they would go, and no farther, in extending their relief against it, or to define strictly the

species or evidence of it, the jurisdiction would be cramped, and perpetually eluded by new

schemes which the fertility of man’s invention would contrive”).

The ancient common-law action for deceit provided the vehicle for persons to seek

recovery from those who intend to deceive others for their own benefit. W. Page Keeton,

Prosser and Keeton on the Law of Torts § 105, at 727-28 (5th ed. 1984) (“Prosser &

27

(...continued)

the putative father had not been harmed. See, e.g., Steve H. v. Wendy S., 67 Cal. Rptr. 2d 90, 93-94 (Ct. App.

1997) ; Nagy v. Nagy, 258 Cal. Rptr. 787, 791 (Ct. App. 1989); Parker v. Parker, 950 So. 2d 388, 394-95

(Fla. 2007); Grand v. Hope, 617 S.E.2d 593, 597-98 (Ga. Ct. App. 2005); Day v. Heller, 653 N.W.2d 475,

479-82 (Neb. 2002); Pickering v. Pickering, 434 N.W.2d 758, 761-62 (S.D. 1989).

-17-

Keeton”). The basis for finding legal responsibility for deceit centered on the defendant’s

intent to deceive, mislead, or convey a false impression. Prosser & Keeton, § 107, at 741.

Throughout the centuries, the courts have had little difficulty finding the required

intent to deceive when the evidence shows either that the defendant knows the statement is

false or that the defendant made the statement “without any belief as to its truth, or with

reckless disregard whether it be true or false.” Prosser & Keeton, § 107, at 741-42. When

a victim of deceit sought restitution, the courts customarily considered the inequity of

allowing the defendant to retain what he or she obtained from the plaintiff. However, in

cases in which the deceit involved the transfer of something of value, the courts permitted

the plaintiff to recover direct damages, along with special and consequential damages.

Prosser & Keeton, § 110, at 765-66.

Our current common-law claim for intentional misrepresentation is the successor to

the common-law action for deceit. First Nat’l Bank of Louisville v. Brooks Farms, 821

S.W.2d 925, 927 (Tenn. 1991). In fact, “intentional misrepresentation,” “fraudulent

misrepresentation,” and “fraud” are different names for the same cause of action. Concrete

Spaces, Inc. v. Sender, 2 S.W.3d 901, 904 n.1 (Tenn. 1999).28 In this opinion, we will refer

to the cause of action as a claim for intentional misrepresentation, and, in order to avoid

confusion, we suggest that this term should be used exclusively henceforth. See Rogers v.

Louisville Land Co., 367 S.W.3d 196, 205 (Tenn. 2012) (noting that “intentional infliction

of emotional distress” and “outrageous conduct” were different names for the same tort and

stating that the tort should be referred to as “intentional infliction of emotional distress”).

To recover for intentional misrepresentation, a plaintiff must prove: (1) that the

defendant made a representation of a present or past fact; (2) that the representation was false

when it was made; (3) that the representation involved a material fact; (4) that the defendant

either knew that the representation was false or did not believe it to be true or that the

defendant made the representation recklessly without knowing whether it was true or false;

(5) that the plaintiff did not know that the representation was false when made and was

justified in relying on the truth of the representation; and (6) that the plaintiff sustained

damages as a result of the representation. Walker v. Sunrise Pontiac-GMC Truck, Inc., 249

S.W.3d at 311 (quoting Metropolitan Gov’t of Nashville & Davidson Cnty. v. McKinney, 852

28

This Court has recognized that “intentional misrepresentation” and “fraudulent misrepresentation”

have the same elements. Walker v. Sunrise Pontiac-GMC Truck, Inc., 249 S.W.3d 301, 311 (Tenn. 2008).

These elements overlap the elements of a common-law fraud claim. See Brown v. Birman Managed Care,

Inc., 42 S.W.3d 62, 66-67 (Tenn. 2001); Haynes v. Cumberland Builders, Inc., 546 S.W.2d 228, 232 (Tenn.

Ct. App. 1976).

-18-

S.W.2d 233, 237 (Tenn. Ct. App. 1992)); see also 8 Tennessee Practice: Tennessee Pattern

Jury Instructions – Civil § 8.36, at 357 (11th ed. 2011).

Adopting the Restatement (Second) of Torts § 549 (1977), this Court has held that the

proper measure of damages for an intentional misrepresentation claim is:

(1) The recipient of [an intentional] misrepresentation is

entitled to recover as damages in an action of deceit against the

maker the pecuniary loss to him of which the misrepresentation

is a legal cause, including (a) the difference between the value

of what he has received in [the]29 transaction and its purchase

price or other value given for it; and (b) pecuniary loss suffered

otherwise as a consequence of the recipient’s reliance upon the

misrepresentation.

(2) The recipient of [an intentional] misrepresentation in

a business transaction is also entitled to recover additional

damages sufficient to give him the benefit of his contract with

the maker, if these damages are proved with reasonable

certainty.

Boling v. Tennessee State Bank, 890 S.W.2d 32, 35-36 (Tenn. 1994) (quoting Restatement

(Second) of Torts § 549 (1977)).

The record in this case supports the conclusion of both the trial court and the Court

of Appeals that Mr. Craig presented sufficient evidence to prove each of the elements of his

intentional misrepresentation claim against Ms. Hodge. When Ms. Hodge discovered she

was pregnant, she represented to Mr. Craig that he was the child’s biological father and that

no one else could be. This representation was false when it was made, and Ms. Hodge made

this representation recklessly without knowing whether it was true or false. She knew that

she had had sexual relations with Mr. Hay. Mr. Craig had no reason to know that Ms.

Hodge’s representation that he was the child’s biological father was false, and he was

justified in relying on the truth of Ms. Hodge’s representation. Mr. Craig was damaged as

a result of his belief that Ms. Hodge had told him the truth when she told him that he was the

biological father of her child. Putting aside his decision to marry Ms. Hodge, Mr. Craig

sustained monetary damages, not the least of which was his court-ordered obligation to pay

29

In its quotation of the Restatement, the Court inadvertently substituted “a” for “the” in Restatement

(Second) of Torts § 549(1). This non-substantive alteration of the Restatement’s text was not intended to

alter the application or effect of the principles in Restatement (Second) of Torts § 549 in Tennessee.

-19-

child support and his payments for the child’s medical expenses and insurance premiums

following his divorce from Ms. Hodge.30

The laudable goals of preserving intact families, promoting healthy relationships

between parents and their children, and shielding children from their parents’ vitriolic

disagreements will not be advanced in this case by preventing Mr. Craig from pursuing his

intentional misrepresentation claim against Ms. Hodge. The family unit here was already

dissolved when Mr. Craig and Ms. Hodge divorced in 2001. The once healthy relationship

between Mr. Craig and Kyle was extinguished in 2007. Providing stable financial support

for Kyle is no longer a concern because the trial court relieved Mr. Craig of his obligation

to support Kyle in 2005 and because Kyle turned eighteen in June 2010.31

B.

Tennessee’s courts have also recognized the common-law tort of negligent

misrepresentation and have adopted the Restatement (Second) of Torts § 552 (1977) as the

guiding principle with regard to these claims. Bethlehem Steel Corp. v. Ernst & Whinney,

822 S.W.2d 592, 595 (Tenn. 1991); John Martin Co. v. Morse/Diesel, Inc., 819 S.W.2d 428,

433 (Tenn. 1991). Liability for negligent misrepresentation under the Restatement (Second)

of Torts § 552 is more restricted than liability for intentional misrepresentation. Restatement

(Second) of Torts § 552 cmt. a, at 127.

One of the most significant restrictions on liability for negligent misrepresentation is

that it is limited to persons “who, in the course of [their] business, profession or employment,

or in any other transaction in which [they have] a pecuniary interest, [supply] false

information for the guidance of others in their business transactions.” Restatement (Second)

30

Because of the procedural posture of this case, we are not required to address the proper measure

of damages in cases of this sort. Mr. Craig has not taken issue with the portion of the opinion of the Court

of Appeals vacating his $100,000 damage award for intentional infliction of emotional distress, and Ms.

Hodge has not argued that reimbursement for Mr. Craig’s post-divorce payments for child support, medical

expenses, and insurance premiums should not have been included as part of Mr. Craig’s damages. The

resolution of questions relating to the claims that can be filed, the defenses that can be asserted, and the

damages that can be recovered in cases of this sort, beyond those directly raised by the parties, must await

another day.

31

Our decision in this case is limited to the factual circumstances before us – a lawsuit filed by the

former spouse of a child’s biological mother seeking damages for intentional misrepresentation of the child’s

parentage. This case does not require us to address other circumstances, including similar disputes between

persons who were never married or persons who are separated but not divorced. Determining the

appropriateness of actions for intentional misrepresentation of parentage in these and other circumstances

can be made only in the appropriate case.

-20-

of Torts § 552(1). The official comments make clear that liability under the Restatement

(Second) of Torts § 552 is limited to “a supplier of information to be used in commercial

transactions.” Restatement (Second) of Torts § 552 cmt. a, at 128.

This Court has consistently limited liability for negligent misrepresentations to

“business or professional persons who negligently supply false information for the guidance

of others in their business transactions.” John Martin Co. v. Morse/Diesel, Inc., 819 S.W.2d

at 433; see also Ritter v. Custom Chemicides, Inc., 912 S.W.2d 128, 131 (Tenn. 1995) (noting

that the Restatement (Second) of Torts § 552 “obviously includes non-professionals involved

in certain business activities or transactions”); Bethlehem Steel Corp. v. Ernst & Whinney,

822 S.W.2d at 595 (quoting Stinson v. Brand, 738 S.W.2d 186, 190 (Tenn. 1987)). Most

recently, we rejected a negligent misrepresentation claim against a lawyer for providing

advice informally for guidance in a personal matter that was not a business transaction.

Robinson v. Omer, 952 S.W.2d 423, 428 (Tenn. 1997). In doing so, we characterized the

requirement that the misrepresentation be made to guide others “in their business

transactions” as an “essential element” of a negligent misrepresentation claim under the

Restatement (Second) of Torts § 552. Robinson v. Omer, 952 S.W.2d at 428.

Other state courts have similarly limited negligent misrepresentation claims to

statements made in a business or commercial setting. See, e.g., St. Joseph’s Hosp. & Med.

Ctr. v. Reserve Life Ins. Co., 742 P.2d 808, 813-14 (Ariz. 1987); Allen v. Steele, 252 P.3d

476, 484 (Colo. 2011); Kentucky Farm Bureau Mut. Ins. Co. v. Blevins, 268 S.W.3d 368, 373

(Ky. Ct. App. 2008); Sampson v. MacDougall, 802 N.E.2d 602, 608 (Mass. App. Ct. 2004);

Swanson v. Ptak, 682 N.W.2d 225, 232 (Neb. 2004); Barmettler v. Reno Air, Inc., 956 P.2d

1382, 1387 (Nev. 1998); Richland Sch. Dist. v. Mabton Sch. Dist., 45 P.3d 580, 585-86

(Wash. Ct. App. 2002). In addition, courts in at least two states have explicitly disapproved

of negligent misrepresentation claims under the Restatement (Second) of Torts § 552 filed

by putative fathers against the child’s biological mother based on misrepresentations

involving the identity of the child’s biological father. G.A.W., III v. D.M.W., 596 N.W.2d at

290; Pickering v. Pickering, 434 N.W.2d at 762. However, the courts in two states have

permitted adoptive parents to assert negligent misrepresentation claims against adoption

agencies for failing to supply them with information in the agency’s possession regarding the

biological parents’ genetic information and medical background. Roe v. Catholic Charities

of the Diocese of Springfield, 588 N.E.2d 354, 361 (Ill. App. Ct. 1992); M.H. v. Caritas

Family Servs., 488 N.W.2d 282, 287-88 (Minn. 1992).

For over two decades, we have limited the application of negligent misrepresentation

claims under the Restatement (Second) of Torts § 552 to representations made in connection

with a business or commercial transaction. Even though modern marriage has been

-21-

characterized by some as inherently contractual,32 communications between a couple

regarding the parentage of a child do not involve a commercial or business transaction.

We recognize that “[t]he inexhaustible and ever-changing complications in human

affairs are constantly presenting new questions and new conditions which the law must

provide for,” Box v. Lanier, 112 Tenn. at 408, 79 S.W. at 1045 (quoting Woodman v. Pitman,

10 A. 321, 322 (Me. 1887)), and that, as a common-law court, we are obligated to revise, or

even abolish, court-made rules in light of these changed conditions. Broadwell ex rel.

Broadwell v. Holmes, 871 S.W.2d 471, 473 (Tenn. 1994); Dupuis v. Hand, 814 S.W.2d at

345-46. However, Mr. Craig has not provided us with, nor has our independent research

identified, any strongly convincing basis for expanding the scope of negligent

misrepresentation claims under the Restatement (Second) of Torts § 552 to apply to private

communications between a woman and a man regarding the paternity of a child.

Accordingly, like the courts in Minnesota and South Dakota, we decline to hold that a

mother’s former husband may bring a negligent misrepresentation action against his former

spouse based upon her negligent misrepresentations that he is the child’s biological father.

V.

Having determined that Mr. Craig may pursue and has successfully proved his

common-law intentional misrepresentation claim against Ms. Hodge, we must decide

whether awarding him damages on the amount of child support, medical expenses, and

insurance premiums he paid following the parties’ divorce constitutes a retroactive

modification of child support of the sort prohibited by Tenn. Code Ann. § 36-5-101(f)(1).

The Court of Appeals concluded it did. Hodge v. Craig, 2010 WL 4024990, at *9. Based

on our reading of the plain language of the statute, as well as its legislative history, we

respectfully disagree.

Prior to 1987, Tennessee’s courts were permitted to modify child support orders

retroactively if they found that a parent was unable to pay the full amount of support

“through no intentional fault of his or her own and that the facts of the case require such a

modification retroactively in order to meet the ends of justice.” Tenn. Code Ann. § 36-5-

101(a)(1) (Supp. 1986). The courts had construed this provision to permit them to modify

32

See Hopson v. St. Mary’s Hosp., 408 A.2d 260, 261 (Conn. 1979); Rivera v. Rivera, 2010-NMCA-

106, ¶ 9, 149 N.M. 64, 69, 243 P.3d 1148, 1151; Rivkin v. Postal, No. M1999-01947-COA-R3-CV, 2001

WL 1077952, at *3 (Tenn. Ct. App. Sept. 14, 2001) (No Tenn. R. App. P. 11 application filed); Linda L.

Berger, Lies Between Mommy and Daddy: The Case for Recognizing Spousal Emotional Distress Claims

Based on Domestic Deceit That Interferes with Parent-Child Relationships, 33 Loy. L.A. L. Rev. 449, 451

(2000) (noting “the 1960s vision of marriage as the voluntary joinder of independent and equal

personalities”).

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or even forgive child support arrearages. Gossett v. Gossett, 34 Tenn. App. 654, 659-60, 241

S.W.2d 934, 937 (1951); Crane v. Crane, 26 Tenn. App. 227, 231, 170 S.W.2d 663, 665

(1942).

Although child support had traditionally been within the domain of the States,

Congress enacted the Child Support Enforcement Act of 1975 33 based on its concerns

regarding decreased support for children following a divorce and the lack of uniform and

effective enforcement of child support orders. This program – commonly known as the “IV-

D” program – provided incentives to states to improve their own laws and procedures for

collecting child support by providing increasing matching funds to states whose child support

laws and collection procedures satisfied detailed federal standards. See Baker v. State ex rel.

Baker, No. 01A01-9509-CV-00428, 1997 WL 749452, at *2 (Tenn. Ct. App. Dec. 5, 1997)

(No Tenn. R. App. P. 11 application filed). In order to receive the federal matching funds,

the General Assembly modified Tennessee’s statutes governing child support to meet the

federal requirements.34

In the Omnibus Budget Reconciliation Act of 1986,35 Congress added the following

new requirement for states to receive matching funds:

Procedures which require that any payment or installment

of support under any child support order, whether ordered

through the State judicial system or through the expedited

processes required by paragraph (2), is (on and after the date it

is due)–

(A) a judgment by operation of law, with full force,

effect, and attributes of a judgment of the State, including the

ability to be enforced,

(B) entitled as a judgment to full faith and credit in such

State and in any other State, and

33

See Social Services Amendments of 1974, Pub. L. No. 93-647, § 101(a), 88 Stat. 2337, 2351-58

(codified as amended at 42 U.S.C.A. §§ 651- 669b (West 2011)).

34

See Baker v. State ex rel. Baker, 1997 WL 749452, at *3 (describing five bills enacted by the

General Assembly between 1977 and 1994 in order to meet the federal requirements).

35

Omnibus Budget Reconciliation Act of 1986, Pub. L. No. 99-509, 100 Stat. 1874.

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(C) not subject to retroactive modification by such State

or by any other State;

except that such procedures may permit modification with

respect to any period during which there is pending a petition for

modification, but only from the date that notice of such petition

has been given, either directly or through the appropriate agent,

to the obligee or (where the obligee is the petitioner) to the

obligor.

42 U.S.C.A. § 666(a)(9) (West 2011).36 The House Conference Report explains that

Congress was concerned that a number of states – like Tennessee – permitted retroactive

modification of child support awards, including the reduction or nullification of arrearages.

Congress was also concerned that, under the Uniform Reciprocal Enforcement of Support

Act (“URESA”), these states could retroactively modify child support orders entered in other

states. Accordingly, to prevent the reduction or nullification of arrearages, Congress desired

to prevent states from making retroactive changes in child support orders.37

One year later,38 the General Assembly responded to Congress’s action by enacting

Tenn. Code Ann. § 36-5-101(f)(1) which provides, in part:

Any order for child support shall be a judgment entitled

to be enforced as any other judgment of a court of this state, and

shall be entitled to full faith and credit in this state and in any

other state. Such judgment shall not be subject to modification

as to any time period or any amounts due prior to the date that

an action for modification is filed and notice of the action has

been mailed to the last known address of the opposing parties.

In this Court’s first occasion to construe this statute, we noted that the legislative history of

the statute

36

See Omnibus Budget Reconciliation Act of 1986, Pub. L. No. 99-509, § 9103, 100 Stat. 1874, 1973.

37

See H.R. Rep. No. 99-1012, at 272-73 (1986) (Conf. Rep.), reprinted in 1986 U.S.C.C.A.N. 3868,

3917-18.

38

Act of Mar. 12, 1987, ch. 39, 1987 Tenn. Pub. Acts 47.

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reflects the General Assembly’s clear understanding that as a

result of legislative action to bring Tennessee law in line with

the federal requirement, the courts of this state would lose their

ability to forgive past arrearages in child support cases (but not

the discretion to determine how and when the past due amounts

were to be paid).

Rutledge v. Barrett, 802 S.W.2d at 606.

Mr. Craig’s April 3, 2009 damage award is not a retroactive modification of a child

support obligation prohibited by Tenn. Code Ann. § 36-5-101(f)(1) for two reasons. First,

this record contains no evidence (1) that Mr. Craig had a legally enforceable obligation to pay

child support when the judgment was entered,39 (2) that Mr. Craig owed Ms. Hodge any child

support in 2005 when the trial court ordered Ms. Hodge to begin paying child support to him,

or even (3) that Mr. Craig had ever been delinquent in paying child support during those

times when he was obligated to do so.40 Therefore, the 2009 damage award did not have the

effect of reducing or extinguishing any child support arrearage owed by Mr. Craig.

Second, the April 3, 2009 judgment did not purport to change or modify Mr. Craig’s

child support obligations as they had existed following the January 2005 order relieving him

of his responsibility to pay child support. At the time the 2009 judgment was entered, Mr.

Craig had no legally enforceable obligation to pay Ms. Hodge child support for Kyle’s

benefit. As the victim of Ms. Hodge’s intentional misrepresentations regarding Kyle’s

paternity, Mr. Craig was entitled to recover the pecuniary loss he suffered as a result of his

justifiable reliance on Ms. Hodge’s representations that he was Kyle’s biological father and

that no one else could be. Restatement (Second) of Torts § 549. The trial court did not err

by ascertaining the amount of this pecuniary loss by considering the amount of child support,

medical expenses, and insurance premiums Mr. Craig had paid on Kyle’s behalf following

the parties’ divorce.

39

As a result of the trial court’s July 16, 2007 order, Ms. Hodge was awarded sole custody of Kyle,

and Mr. Craig’s obligation to support him was ended.

40

Our holding is limited to the circumstances in the record showing, without dispute, that at all times

during this proceeding, Mr. Craig did not owe back child support to Ms. Hodge. Nothing in this opinion

should be construed as preventing others who owe back child support from filing an intentional

misrepresentation claim similar to the one filed by Mr. Craig in this case. If a party owing back child support

prevails, the trial court, rather than forgiving the past due child support, will be required to offset the

judgment by the amount of the past due child support owed at the time suit was filed.

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VI.

We affirm the determination of the Court of Appeals that Ms. Hodge intentionally

misrepresented Kyle’s paternity to Mr. Craig. However, we reverse its determinations that

Mr. Craig could not pursue a common-law intentional misrepresentation claim against Ms.

Hodge based on her representations that he was Kyle’s biological father and that no one else

could be and that the judgment awarding Mr. Craig damages amounted to a retroactive

modification of child support prohibited by Tenn. Code Ann. § 36-5-101(f)(1). However,

because of the trial court’s error in computing the amount of damages, we remand the case

to the trial court with directions to amend its judgment to award Mr. Craig $25,244.44 in

damages for the child support, medical expenses, and insurance premiums he paid following

the divorce and for whatever other proceedings consistent with this opinion may be required.

We tax the costs of this appeal to Tina Marie Hodge for which execution, if necessary, may

issue.

_________________________________

WILLIAM C. KOCH, JR., JUSTICE

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