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Man to Pay Child Support for the Rest of His Life-for a Child Who Isn't His
Robert Franklin, Esq.
Man to Pay Child Support for the Rest of His Life-for a Child Who Isn't His 2009-03-19 Former North Platte, Nebraska resident Tim Spiehs has already been paying for 29 years for the girl his wife told him was his daughter. They were married briefly and then divorced. Tim had paid an attorney, but the lawyer didn't show up on the day of the court hearing, so Tim went ahead alone. That was a mistake, but it was 1981 and few people had even heard of genetic testing and it was far from common in family cases. Read about it here (North Platte Bulletin, 3/11/09). But even if he'd suspected that the child wasn't his, he would never have guessed that whatever happened that day was res judicata, judicially decided, set in stone. But that's exactly what happened. He failed to contest paternity of the child, so when the judge brought his gavel down, his paternity was adjudicated forever. And as usually happens in this country, there was no duty on the mother's part to tell the truth. And she didn't. Eventually Spiehs got a DNA test. Amazingly, despite the lab's statement "probability of paternity - 0.00%," both mother and daughter blithely claim that he's the father. The daughter goes so far as to say "I know my mother wouldn't lie to me about who my father is." Anyway, Tim Spiehs started paying for a child who wasn't his. Later on, his ex claims she told him the truth, but by then it was far too late for him to do anything about. (How she now claims he's the father, I have no idea.) He's taken the case to both appellate levels, spent a lot of money and is stuck with a lifetime of child support. Why a lifetime? Just read Sanford Braver's Divorced Dads. It shows that non-custodial parents who get behind in their support payments usually do so because of job loss or ill health. Tim Spiehs has had both according to Frank Graham who wrote the North Platte Bulletin piece. During those times, the interest and penalties built up and up. Spiehs is 60 years old, in poor health and works in a convenience store. Instead of looking forward to retirement, he gets to look forward to working every day for the rest of his life to pay for a child who's not his. Reread that last sentence and ask "what if that were me?" ----------------------------------- http://www.northplattebulletin.com/i...212 &pageID=3 Man not dad but still ordered to pay child support by Frank Graham (North Platte Bulletin) - 3/11/2009 A former North Platte resident has paid child support for 29 years, even though a DNA test said the daughter is not his. Tim Spiehs, now of Belleville Kan., has had his paycheck garnished for years to make the support payments. In all, he has paid more than $26,000, which includes penalties and interest and still owes $12,400 on the principal, he said. Spiehs was divorced in 1981 and began paying child support then, but didn't get a DNA test on his daughter until 2000. He had sought the test for years and said the girl finally agreed. The test, performed by Laboratory Corporation of America in Burlington N.C., said Spiehs is "excluded from paternity" and that he is "not the biological father of the child." "Probability of paternity -- 0.00%," the test concluded. But that test doesn't matter, according to the law. Spiehs argued his case all the way to the Nebraska Supreme Court, but even they wouldn't overturn it. Spiehs is a victim of what is said in the justice system, in Latin terms - "res judicata", meaning, "it has already been decided." The history Spiehs worked in North Platte in the late 1970s. He met and fell for a woman and they got married. Spiehs soon found himself working out-of-town in Grand Island. Many times he was gone all week and only home on weekends. He said he began to suspect his wife, Lavanda, was having an affair. In 1979 the couple had a daughter, also named Lavanda, but the marriage didn't last. By 1981 the couple had split and was in divorce court. Spiehs said he hired an attorney from Grand Island to represent him. He paid him $300 and was due to pay another $350 when the divorce was finalized. Spiehs said he still suspected his daughter was not his. He said Lavanda even told him that their daughter was not his on numerous occasions. Spiehs said he even found out who the real father was. Spiehs said he asked several people, including a caseworker from the Nebraska Department of Health and Human Services, about getting a blood test. "She told me that wasn't necessary," Spiehs said. In 1981, DNA was a new technology and wasn't all that prevalent in family court. Spiehs said on the day of the final divorce hearing, his attorney did not show up in court. Spiehs said he wasn't familiar with the court system and never thought of asking for a delay. He sat, without an attorney, as Lincoln County District Judge John Murphy issued a ruling in the divorce case. Spiehs was ordered to pay child support. The case was decided. Spiehs said he was railroaded because he didn't understand what was happening that day. He said he never paid his attorney the other $350 and filed a complaint against him. And Spiehs continued to fight. In 1984, a sperm count taken by Dr. Bob Dellinger of North Platte showed that Spiehs was sterile, but he could not find a way to bring the issue back into court. "The State of Nebraska harassed me constantly," Spiehs said. "They threatened to throw me in jail and suspend my driver's license if I didn't pay." Spiehs said he talked to numerous lawyers and everyone he could think of at HHS, but no one cared. Spiehs had his paychecks garnished, with penalties and interest piled on. Spiehs repeatedly asked Lavanda to allow the daughter to submit to a DNA test but she refused. When the daughter turned 18, Spiehs said he asked the daughter and she agreed. The test was taken at the Craft State Office Building and submitted to Lab Corp. "The test cost me $630, but it was worth it," Spiehs said. "It proved that Lavanda was not my daughter." Spiehs saved his money and hired P. Stephen Potter to fight the case. Potter filed a motion for a new trial in March 2001. He argued that there were irregularities in the first divorce hearing and that Spiehs did not have a fair trial. Potter also argued that the decision of the court was not sustained by sufficient evidence and that newly discovered evidence which he could not have obtained with reasonable diligence had been discovered. He also argued that he had evidence of Lavanda's fraud and that she was aware that Spiehs was not the father of the child when Murphy's decree was entered. On April 17, 2001, Murphy issued his decision. He ruled that evidence (DNA test) could have been obtained and discovered with reasonable diligence. Murphy said Spiehs suspected he was not the father in 1981 but did nothing to follow-up on that suspicion. "He may not now be heard to complain that fraud was conducted," Murphy ruled. Spiehs said the hearings had cost him an additional $1,500 but that he wasn't about to stop fighting. So he paid Potter an additional $3,500 to appeal Murphy's decision to the Nebraska Court of Appeals. The Appeals Court issued its ruling June 14, 2002. They affirmed Murphy's ruling. They ruled that Spiehs suspected Lavanda was not his daughter so there could be no finding of fraud and "the application of res judicata applies to the divorce decree." The Appeals Court also agreed that Spiehs could have questioned the true paternity of his daughter before the court, but did not. Spiehs "motion to modify was barred by the doctrine of res judicata," the court wrote. Res judicata Res judicata (Latin: "a thing adjudged") means a thing or matter that has been finally decided on its merits and cannot be litigated again between the same parties. The term is often used in reference to the maxim that repeated reexamination of disputes is not in any society's interest. It has long been held that one judicial contest is enough for the litigants on a particular claim or defense. As the volume of judicial work has risen, the need to limit litigants to a single contest about a single controversy has become more urgent. The concept of res judicata has expanded in scope and power. But Spiehs doesn't understand it. "We now know the truth of the matter," Spiehs argues. "Doesn't the truth matter any more?" Potter realizes that Spiehs is stuck and getting a raw deal, but said res judicata is necessary or the courts would be bogged down in fighting the same battles over and over. Spiehs thinks no justice was done. He would like to get all the money he paid into child support back, but that is not likely. He would even settle for having the remaining balance forgiven so he could get on with his life, but that is not likely either. Spiehs has not seen Lavanda or her daughter for about two years. Lavanda remarried and goes by the name Lavanda Watts. She still claims Spiehs is the father. Lavanda Titchen, the daughter, is now 28 and has children of her own. She said she still thinks of Tim as her father and believes the DNA test is flawed. "We were told that all three of us - mother, father and daughter - have to have it done at the same time," Titchen said. "I've been upset over the years at what he's tried to do and say," Titchen said. "I know my mother wouldn't lie to me about who my father is." "But he was an alcoholic, so I didn't get too attached to him," Titchen said. Still fighting Spiehs, who has remarried, will be 60 in April. He faces paying child support payments to Lavanda until the day he dies. "The whole experience makes me so angry I could spit nails," Spiehs said. "I have absolute proof that I am not Lavanda's father, but neither the State of Nebraska or the judicial system listen to me." "How long does an error have to go on until it's fixed," Spiehs asked. "Until I die?" Spiehs does not intend to quit fighting, although his options have narrowed dramatically. He filed a complaint with the Nebraska Judicial Commission about Judge Murphy. He received a letter back from the commission promising that they would look into the matter and advise him of what action, if any, would be taken. But several legal experts said state statutes would have to change for Spiehs to get any relief. A single decision by a judge, made 29 years ago, will likely haunt Spiehs the rest of his life. |
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