IN THE SUPREME COURT OF MISSISSIPPI

IN THE SUPREME COURT OF
MISSISSIPPI
NO. 2004-IA-02429-SCTWILLIAM RUSSELL THOMSv.HANK THOMSDATE OF JUDGMENT: 12/06/2004TRIAL JUDGE: HON. ROBERT L. LANCASTERCOURT FROM WHICH APPEALED: OKTIBBEHA COUNTY
CHANCERYCOURTATTORNEY FOR APPELLANT: MARTY CRAIG ROBERTSONATTORNEY FOR APPELLEE: H. J. DAVIDSON, JR.NATURE OF THE CASE: CIVIL – CUSTODYDISPOSITION: AFFIRMED AND REMANDED- 05/11/2006MOTION FOR REHEARING FILED:MANDATE ISSUED:BEFORE COBB, P.J., CARLSON AND
GRAVES, JJ.
COBB, PRESIDING JUSTICE, FOR THE COURT:¶1. This case is before this Court on interlocutory appeal filed by William Russell Thoms(Rusty) from an Order for Genetic Testing entered by the Oktibbeha County Chancery Court.Hank Thoms (Hank), cousin to Rusty, had filed a Petition for Determination of Paternity andfor Other Relief seeking to know whether he was the father of a child whom Rusty had beenraising as his own since birth. The chancery court ordered Hank, the child, and WendyThoms, the natural mother, to submit to genetic testing, and further ordered that if the testRusty and Wendy have another 1 child, who is not included in the underlyingpaternity action.2indicated Hank as the probable father, Rusty must also be tested. Aggrieved, Rusty filed hisinterlocutory appeal, which this Court granted together with a stay of the testing.FACTS AND PROCEDURAL HISTORY¶2. Three suits were filed soon after Rusty learned his wife was having an affair with hiscousin, Hank Thoms, and that one of the children he had been raising as his own, might beHank’s son. The first, an alienation of affection suit filed by Rusty against Hank in RankinCounty
Circuit Court, and the second, a divorce action filed by Rusty against Wendy in the

Oktibbeha County Chancery Court, were still pending at the time of the present interlocutoryappeal arising from the third suit. Rusty argues generally that genetic testing would resultin irreparable injury to one or both of the children1 involved. Specifically, he raises fourissues, asserting that the trial court erred by: (1) entering the order for genetic testing withoutfirst making a determination of the best interests of the child; (2) failing to appoint a guardianad litem before paternity testing; (3) failing to apply the doctrines of clean hands, laches, andequitable estoppel to bar Hank’s request for genetic testing; and (4) requiring Rusty to submitto DNA testing if test results indicate a probability of paternity that Hank is the child’s father.Hank asks only that his right to a paternity test be determined by this Court, and that thepaternity action proceed in the trial court after the test results are known. We affirm the trialcourt and remand for further proceedings consistent with this opinion.3ANALYSISI. Whether the trial court erred when it entered the Order For GeneticTesting before applying the best interest of the child standard.¶3. A Chancellor’s findings are not to be disturbed unless the chancellor is manifestlywrong, clearly erroneous, or an erroneous legal standard was applied.
Ferrara v. Walters,
919 So.2d 876, 881 (
Miss. 2005). The standard of review with respect to the chancellor’s
decision to order a paternity test is manifest error. Sanderson v. Sanderson, 824 So. 2d 623,626 (
Miss. 2002).
¶4. Rusty first argues that the trial court erred in ordering genetic testing because the courtdid not first engage in fact-finding to determine whether a paternity test would be in thechild’s best interest, invoking the foundational “best interest of the child” rule presentthroughout
Mississippi jurisprudence in cases involving children. He cites Dept. Of Human
Services v. Jones, 627 So. 2d 810, 811 (
Miss. 1993) for this well established rule, but
presents no authority which supports his argument that the best interest determination mustbe made first, before the genetic testing is done. Rusty relies entirely on Griffith v. Pell, 881So. 2d 184 (
Miss. 2004) and the cases cited therein for his assertion that the “best interest”
standard be applied before the testing, but his reliance is misplaced, as discussed infra.¶5. Hank responds by pointing out that Miss. Code Ann. Section 93-9-21(2) (Rev. 1999),provides in its entirety, that “[t]he court, on its own motion or on motion of the plaintiff ordefendant, shall order the mother, the alleged father and the child or children to submit togenetic tests and any other tests which reasonably prove or disprove the probability of4paternity.” (Emphasis added.) In Ivy v. Harrington, 644 So. 2d 1218, 1221 (
Miss. 1994),
this Court noted that Section 93-9-21 was amended in 1987 to allow a putative father,plaintiff in a paternity action, to move for an order requiring blood tests. The

Ivy Court

wenton to say that the word “shall” is a mandatory directive, and thus no discretion is affordedthe trial judge, and the motion for paternity must be granted.
Id. at 1221.
¶6. Hank also asserts the importance of genetic testing to determine such issues asinheritance rights and assessment of medical predispositions. Finally, Hank correctly arguesthat the best interest of the child should be considered only after the results of the genetictest. He cites the
Griffith decision, also relied upon by Rusty, that holds that the best interest
of a child, which is at the heart of a paternity action, would be best addressed in the divorceproceeding, not in the paternity action. 881 So. 2d at 186.¶7. Statutory construction of the plain language of Miss. Code Ann. Section 93-9-21(2),cited by the trial court as authority for its ruling, constrains us to conclude that the word“shall” is a mandatory directive. As a consequence, in a proceeding to establish paternity,upon motion by either the plaintiff or defendant for an order requiring blood tests, the trialjudge must grant the motion. Even if a trial court determined it was not in the child’s bestinterests to require a paternity test, all that is necessary, under the statute as it currently exists,is for either the plaintiff or defendant in a suit regarding paternity to move for a test to bedone. No discretion is afforded. Notwithstanding the breadth and depth and importance ofthe “best interest of the child”doctrine in
Mississippi jurisprudence, the legislature was very
5clear in its unconditional amendment of 93-9-21. Unless and until that body sees fit tochange it, we are bound by it. Notwithstanding good arguments to the contrary in thissituation, the trial court and this Court must follow the mandate of the legislature.¶8. Because we affirm the trial court on this first issue, on statutory grounds, we do notaddress issues two and three raised by Rusty, regarding clean hands, laches, equitableestoppel, and the appointment of a guardian ad litem. These issues, in a different context,and different arena, will be appropriate for consideration by the trial court after receiving theresults of the genetic testing.II. Whether requiring Rusty to submit to DNA testing is a violation of hisConstitutional right against unreasonable search and seizure under theUnited States and
Mississippi Constitutions.
¶9. The standard of review for Constitutional issues is de novo. Baker v. State, 802 So.2d 77, 80 (
Miss. 2001). Likewise, the standard of review for constitutionality of
Mississippi
statutes is also de novo. Austin v. Wells, 911 So. 2d 961, 964 (
Miss. 2006).
¶10. The trial court held that, if the DNA tests of Wendy and the child indicate aprobability of paternity for Hank, then Rusty must also submit to DNA testing. Rusty assertsin his brief that requiring him to submit to DNA testing is an unreasonable search and seizureunder the
United States and Mississippi Constitutions, but cites no law that supports this
contention. Additionally, Rusty claims there are no provisions in our Uniform Law onPaternity, codified in Miss. Code Ann. Sections 93-9-1 through 93-9-49, which would allow6for him to be compelled to submit to DNA testing under the circumstances in the presentcase.¶11. The court order requiring Rusty to submit to testing is not absolute; instead, it isdependent on the outcome of Hank’s results. The order states:It is further ordered that if the results of the testing of the Plaintiff shallexclude his paternity no further testing shall be conducted. If the results of thetesting of the Plaintiff shall indicate a probability of paternity for Plaintiff, itis further ordered that Reliagene shall draw a genetic sample from theDefendant William Russell Thoms and determine the probability of WilliamRussell Thoms.There is a distinct possibility that Rusty may never be required to undergo genetic testing.Thus this issue is premature and not ripe for appellate review, and we decline to address ittoday.¶12. On remand, the testing of Hank, the mother and the child may be conducted.However, should the results indicate, as stated in the trial court order, “a probability ofpaternity for Hank”, Rusty may develop the constitutionality issue before the trial court.CONCLUSION¶13. This Court determines Rusty’s arguments are without merit with regard to issues one,two, and three, and we affirm the portion of the Order for Genetic Testing as it applies toHank, Wendy, and the child. We further determine that the constitutionality issue ispremature and not ripe for appellate review. We remand to the trial court for furtherproceedings consistent with this opinion.7¶14. AFFIRMED AND REMANDED.SMITH, C.J., WALLER, P.J., CARLSON,
GRAVES AND DICKINSON, JJ.,
CONCUR. EASLEY, J., CONCURS IN RESULT ONLY WITHOUT SEPARATEWRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING. 

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: