• Sample US Supreme Court Petition

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    The following US Supreme Court Petition for Certiorari was
    entirely researched and written by Robert A. Hirschfeld, JD,
    on behalf of the self-representing Petitioner, Carnell Smith.
    It is Hirschfeld's eleventh Supreme Court Petition. His
    prior US Supreme Court work includes two Petitions for
    Writ of Habeas Corpus seeking release of the Cuban Boy,
    Elian Gonzales, to the boy's Cuban father. Hirschfeld, who
    was for ten years a prominent Father's Rights attorney,
    is available on contract to draft Federal and State
    Appellate and Supreme Court briefs at:

    Robert Hirschfeld, JD, PO Box 696, Lukeville AZ 85341 or

    Email: certhelp@nolawyer.com -------------------------------------------------------
    (ascii version: Cites at end instead of page bottoms) -------------------------------------------------------
    No. 01-1520 (Filed 4/9/02)

    IN THE SUPREME COURT
    OF THE UNITED STATES
    _________________________

    October Term, 2001
    _________________________

    CARNELL A. SMITH
    Petitioner
    v.
    TONI W. ODUM
    Respondent
    ______________________________________________

    On Petition for a Writ of Certiorari to the
    Supreme Court of the State of Georgia ______________________________________________

    PETITION FOR WRIT OF CERTIORARI
    ______________________________________________

    CARNELL A. SMITH
    (address and phone redacted)
    Petitioner, Pro Se

    April 9, 2002

    QUESTIONS PRESENTED


    1. Is every cognizant State Court, when
    presented with uncontroverted, credible
    genetic testing evidence of non-paternity,
    required to render void for want of subject
    matter jurisdiction, the previous, underlying,
    judgment of paternity?

    2. Upon a finding by the cognizant State Court
    that a previous judgment of paternity is void,
    must that Court Order the refund to the
    newly-proven non-father, of all child support,
    whether court ordered or voluntarily paid
    while under mistaken belief of paternity,
    collection expenses, and court expenses?

    LIST OF PARTIES

    Petitioner Carnell A. Smith, is a resident and citizen of
    the State of Georgia and of the United States of America.

    Respondent Real Party in Interest Toni W. Odum was
    at all pertinent times, a resident and citizen of the State of
    Georgia and of the United States of America.

    TABLE OF CONTENTS

    QUESTIONS PRESENTED i

    LIST OF PARTIES ii

    TABLE OF CONTENTS iii
    TABLE OF AUTHORITIES iv
    TABLE OF STATUTES AND ACTS OF vi
    CONGRESS ...

    OPINIONS BELOW 2

    JURISDICTION 2

    STATUTORY PROVISIONS INVOLVED 2

    STATEMENT OF THE CASE 2
    STANDARD OF REVIEW 5
    STATEMENT OF FACTS 5
    REASONS FOR GRANTING THE WRIT 7

    I. Every cognizant State Court, when presented with 7
    uncontroverted, credible genetic testing evidence of non-
    paternity, is required to render void for want of subject
    matter jurisdiction, the previous, underlying, judgment of
    paternity.

    II. Upon a finding by the cognizant State Court that a 11
    previous judgment of paternity is void, that Court must
    Order the refund to the newly-proven non-father, of all child
    support, whether court ordered or voluntarily paid while
    under mistaken belief of paternity, collection expenses, and
    court expenses.
    CONCLUSION 16
    Georgia Supreme Court Order Appendix A
    Court of Appeals Order Appendix B
    Superior Court Order Appendix C

    TABLE OF AUTHORITIES

    AG Edwards & Son v. Norwest Rlty Co.,340 NW2d 15
    187,189 (S.D.1983)

    Allenberg Cotton Co. v. Pittman, 419 U.S. 20 (1974) 17

    American Fire & Casualty Co. v. Finn, 341 U.S. 6, 12
    17-18 (1951);

    Barret v. Independent Order of Foresters, 625 F.2d 73 10
    (5th Cir. 1980).

    Capron v. Van Noorden, 2 Cranch 126, 127 (1804) 12

    Clements v. Phillips, 235 Ga.App. 588, 510 S.E.2d 12,14
    311 (Ga.App. 12/03/1998)

    De Filippis v. United States, 567 Fed.2d 341, 343-44 15
    (7th Cir. 1977)

    Department of Medical Assistance v. Presbyterian 11
    Home, Inc. 200 Ga.App. 885, 887.

    Dixon v. Punchy, 979 P.2d 520, 526 (Alaska 1999) 15

    Freytag v. Commissioner, 501 U.S. 868 (1991) 12,13

    Gary v. E. Frank Miller Construction Co., Inc., 208 10
    Ga.App. 73 (1993)

    Georgia Department of Human Resources v. Pinter, 14
    241 Ga.App. 10, 525 S.E.2d 715 (Ga.App. 11/18/1999)

    Haynes v. Fincher, 241 Ga.App. 179 (1999).

    Human Resources v. Browning, 210 Ga.App 546, 547 7
    (1993)

    In re Ashmore, 163 Ga. App. 194, 195 (1) 14
    (293 SE2d 457) (1982)

    Jenkins v. MAB and JB, 723 So.2d 649 (Ala. 7/17/98) 15

    Kohl v. Amundson, 620 NW2d 606 (S.D. 1/3/2001) 15

    Langston v. Riffe v. Langston, Daniel R. v. Tyrone W. 15
    359 Md 396, 754 A.2d 389 (June 28, 2000)

    Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985 (1983) 15

    Libro v. Walls, 103 Nev. 540, 543, 746 P.2d 632, 634 15
    (Nev. 1987)

    Love v. Love, 114 Nev. 572, 959 P.2d 523 (Nev. 5/19/98) 15

    Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 12
    82 (1884)

    Morton v. W.T. Tharpe & Co., 41 Ga.App 788 (1930). 11

    Price v. Mitchell, 154 Ga.App. 523 (1980) 11

    Roddenberry v. Roddenberry, 255 Ga. 715, (1986) 7

    Smith v. Department of Human Resources, 8,14
    226 Ga. App. 491, 493 (487 SE2d 94) (1997)

    United States v. Swift & Co., 286 U.S. 106, 114-15 , 15
    52 S.Ct 460 (1932)

    White v. Armstrong, 1999 WL 33085 (Tenn. Ct. 15
    App 1/27/99)
    Wise v. Fryar, Petition for Writ of Certiorari, U.S. 15
    Supreme Court No. 01-562, cert.den. (Current Term, 2002)

    WY. Dept. of Fam. Serv.,MJJ v.PAG & MJA, 15
    934 P.2d 1257 (Wy.1977)

    TABLE OF STATUTES AND ACTS OF CONGRESS

    O.C.G.A. 19-7-40 (Georgia Paternity, Child Support) passim

    ------------------------------------------------------------

    IN THE SUPREME COURT
    OF THE UNITED STATES
    _________________________

    October Term, 2001
    _________________________

    CARNELL A. SMITH
    Petitioner
    and
    TONI W. ODUM
    Respondent
    ______________________________________________

    On Petition for a Writ of Certiorari to the
    Supreme Court of the State of Georgia ______________________________________________

    PETITION FOR WRIT OF CERTIORARI
    ______________________________________________

    CARNELL A. SMITH
    (Address and phone redacted)
    Petitioner, Pro Se
    ______________________________________________

    Petitioner respectfully prays that a writ of certiorari issue to
    review the Decision entered herein by the Supreme Court of
    the State of Georgia on January 9, 2002.


    OPINIONS BELOW

    The 1/9/02 Memorandum Decision of the Supreme
    Court of the State of Georgia appears as Appendix A. The
    decision of the Georgia Court of Appeals dated 7/10/01
    appears as Appendix B. The Decision of the Superior Court
    of DeKalb County, Georgia in Civil Action No. 98-12744-9
    dated 5/14/01 appears as Appendix C.

    JURISDICTION

    The judgment of the Georgia Supreme Court was
    entered on January 9, 2002. This petition for certiorari is
    being filed within 90 days of that date. Jurisdiction is
    invoked under 28 U.S.C. o1254(1).

    STATUTORY PROVISIONS INVOLVED

    None specifically invoked.

    STATEMENT OF THE CASE

    A large, well defined, class of civil cases exists
    across the United States in which some Courts routinely
    persist in failing their fundamental duty to do justice. In
    these cases, the court rules that a status of paternity exists,
    and when later confronted with credible, conclusive
    scientific evidence of non-paternity, by way of the relatively
    new, reliable "DNA Test", refuses by artifice and avoidance,
    to reopen the matter, release the erroneously implicated
    "non-father" from financial liability, and further refuses to
    reimburse the "non-father" for sometimes huge past child
    support assessments having no lawful basis.

    A civil state court acquires subject matter jurisdiction
    over the financial duties of a "putative father" only if that
    man is in fact the biological or adoptive father of the subject
    child. Releasing such a man from the financial duties of
    fatherhood is not discretionary, when, not being an adoptive
    parent, that man is demonstrated by the clear result of DNA
    testing not to be the biological father. Such demonstration
    finally and without recourse constitutes ab initio lack of the
    court's subject matter jurisdiction over the subject of the
    demonstrated non-father's duty of financial support.

    Lack of subject matter jurisdiction may be raised at
    any time, for it goes to the most crucial connection by which
    a court acquires the right and obligation to exert that court's
    power over the affected non-father. The subterfuge of
    refusing to deal with wrongful paternity adjudications by
    claiming "laches", or excessive passage of time, cannot
    lawfully be applied to matters later shown to lack ab initio
    subject matter jurisdiction.

    Nor may the fiction of paternity be maintained in
    light of wrongful conduct by any party, for subject matter
    jurisdiction is a fundamental litigative necessity which is
    neither created nor destroyed by litigative action; rather, it
    either exists as a factual basis, or it does not.
    A court, upon finding that it lacks ab initio subject
    matter jurisdiction, has a very high duty to expeditiously
    declare its lack of such jurisdiction, and to restore the status
    quo ante, that is, to declare that the erroneously declared
    father is not, and never was, the actual father, and further,
    that any child support paid by him under the false impression
    of his paternity, or by court order, be wholly refunded to
    him.

    Petitioner Carnell A. Smith, representing himself,
    hereby petitions that a Writ of Certiorari issue to the Georgia
    Supreme Court regarding the denial by that Court on January
    9, 2002 of leave to appeal from the Order of the Honorable
    Edward A. Wheeler, Senior Judge, Stone Mountain Judicial
    Circuit , Superior Court, DeKalb County, dated May 14, 2001.

    Petitioner respectfully submits that the Superior
    Court of DeKalb County committed fundamental error at
    law, in denying to Petitioner a new trial, sought on August
    28, 2000 (less than three years from entry of the Superior
    Court's Consent Legitimation Order dated July 28, 1999, and
    its March 2, 2000 Visitation and Child Support Order) based
    upon newly discovered DNA evidence of non-paternity.

    Further, that each of the involved Georgia Appellate Courts
    failed to abide by their respective mandatory duty to examine
    a claimed lack of Subject Matter Jurisdiction, by refusing to
    grant Petitioner's Applications for Discretionary review.
    Petitioner further submits that the Superior Court of
    DeKalb County committed fundamental error at law, in
    denying retrial of an order of legitimization originally based
    upon application and consent of the de-facto non-father
    before he suspected Plaintiff/Respondent's fraudulent
    concealment.

    The Application to the Court of Appeals urged, and
    the subsequent State Supreme Court Petition for Certiorari,
    or alternatively, Application for Discretionary Appeal
    necessarily re-urged, that lack of de-facto biological
    paternity deprives the Superior Court ab initio of subject
    matter jurisdiction to assess statutory child support from the
    non-father, or to enter or perpetuate an order of
    legitimization as to the non-father.

    Since lack of subject matter jurisdiction may be
    raised at any time, it would, if recognized herein, establish
    precedent broadly applicable in every State, to all defrauded
    biological non-fathers who are wrongfully refused cessation
    of child support orders and reimbursement for formal or
    informal past payments of child support arising from a
    mistaken belief in their paternity status.

    Wrongful perpetuation of Georgia Court Orders
    assessing child support when the parties and the courts
    become aware that Jurisdiction for such orders is lacking
    (because the man so ordered is not the biological father
    intended by the legislature) rises to constitutional
    dimensions, and is a crucial matter of nationwide
    importance, justifying this court's resolution by
    establishment of a nationwide precedent. No United States
    Supreme Court precedent specifically prohibits such a
    miscarriage of justice.

    This Application is the ideal vehicle for reaching a
    precedent upon which all paternity litigants may rely, and is
    therefore a matter of national public interest. Public trust and
    confidence in our court system is shaken so long as the
    fiction which perpetuates the child support order below, is,
    along with similar cases, the continuing subject of public
    outrage and media attention.
    Petitioner was led to believe, during pregnancy of his
    former intimate, Respondent Toni W. Odum, that the child
    she carried was his. She concealed from him for about a
    decade, the possibility that he was not the father. Relying
    thereon, Petitioner paid voluntary child support, and later, in
    the caption-referenced Paternity matter, paid court ordered
    support. By counterclaim, Petitioner in good faith secured
    the child's legitimization and court-ordered custodial and
    visitation rights.

    Only thereafter did Petitioner first become aware of
    the possibility of his non-paternity. Two DNA tests have
    each conclusively excluded him as father. The Superior
    Court on May 14, 2001, denied Petitioner's motion for new
    trial, based upon his not having earlier availed himself of
    DNA testing before he had reason to suspect he might not be
    the father.

    STANDARD OF REVIEW

    The question of subject matter jurisdiction is not
    discretionary, but is rather a matter of law which may be
    raised at any time.

    STATEMENT OF FACTS

    The parties resided together and had a sexual
    relationship, which ended when they separated. Shortly after
    such separation, Respondent/mother informed Petitioner of
    her pregnancy, and claimed that he was the father. She
    deliberately concealed the fact that she contemporaneously
    had had sexual relations with another man. Thus deceived,
    Petitioner acted as father by developing a relationship with
    the child and paying voluntary child support. Eventually, the
    parties disagreed as to the amount of a mother-demanded
    increase in child support, and she on January 28, 1999, filed
    the paternity/support action to which this petition pertains.
    Petitioner counterclaimed and was granted court-ordered
    custodial and visitation rights, as well as an Order of
    Legitimization.


    Only thereafter was Petitioner advised by third
    parties of the possibility that he was not the father. He
    secured a DNA test, and his non-paternity was confirmed.
    Mother then demanded a second, independent DNA test,
    which resulted in the same outcome. She and her counsel
    stipulated to temporary cessation of child support, but when
    Petitioner refused to absolve her of reimbursement of the
    approximately $40,000 he had already paid for a child that
    was not his, she and her counsel resisted the entire new-trial
    procedure. The order, to which this Petition pertains,
    perpetuates the de-facto baseless child support order and
    legitimization.

    REASONS FOR GRANTING THE WRIT

    INTRODUCTION

    The Superior Court of DeKalb County committed
    fundamental error at law, in denying to Applicant, based
    upon purported lack of "due diligence" a new trial of Child
    Support and Legitimization based upon newly discovered
    DNA evidence of non-paternity.

    Lack of de-facto biological paternity deprives the
    Superior Court ab initio of subject matter jurisdiction to
    assess statutory child support from the non-father, or to enter
    or perpetuate an order of legitimization as to the non-father.
    The Court of Appeals and the State Supreme Court both
    committed fundamental error at law, in denying the
    Application for Discretionary Appeal, founded on lack of
    subject matter jurisdiction, thereby creating a sub silentio
    ratification and perpetuation of the trial court's exercise of
    non-existent subject matter jurisdiction.

    1.
    Every cognizant State Court, when presented with
    uncontroverted, credible genetic testing evidence of non-
    paternity, is required to render void for want of subject
    matter jurisdiction, the previous, underlying, judgment of
    paternity.

    The Petitioner should have been routinely, and
    mandatorily, allowed to proceed with his motion for new
    trial because it attacked a previous final judgment which
    dealt with paternity and child support, and was based on
    evidence which was discovered after the Superior Court's
    Final Order. (FN1,2.)

    Footnote 1: See Roddenberry v. Roddenberry, 255 Ga. 715, (1986)

    Footnote 2: "On an extraordinary motion for a new trial based on newly discovered evidence, it is incumbent on the movant to satisfy the court: (1) that the newly discovered evidence had come to his knowledge since the
    trial; (2)that want of due diligence was not the reason that the evidence
    was not
    acquired sooner; (3) that the evidence was so material that it would
    probably produce a different verdict; (4) that it is not cumulative only;
    (5) that the affidavit of the witness is attached to the motion or its
    absence accounted for; and (6) that the new evidence does not operate
    solely to impeach the credit of a witness." Human Resources v.
    Browning, 210 Ga.App 546, 547 (1993).

    The trial court wrongfully denied the new trial, by
    finding that Petitioner had failed to exercise due diligence.
    More specifically, lack of due diligence was attributed by the
    Trial Court to Petitioner's failure to earlier avail himself of a
    DNA test on litigative occasions when Petitioner earnestly
    and in good faith believed himself to be the biological father,
    in reliance upon Mother's fraudulent withholding from him
    of information to the contrary.

    Petitioner had no reason to believe that he was not
    the father of the minor child since the Mother repeatedly
    assured him that he was in fact the biological father.
    Therefore his duty of "due diligence" did not begin until
    after he had first been alerted by third parties that he might
    not be the only male to have been sexually active with the
    Mother during the period when the child could have been
    conceived. Petitioner initiated a DNA test promptly after
    being so alerted. (FN3)

    Footnote 3: "Where a purported father has no reason to suspect the fidelity
    of the mother, it may not be unreasonable, and in fact may be admirable, for him to acknowledge his paternity without further proof thereof. The law
    should not punish a purported father for failing to insist on a paternity
    test when he has no reason to believe that he is not the father. A contrary rule would invite suspicion and distrust, and essentially require all
    purported fathers, upon divorce or separation to accuse their spouses or partners of infidelity by demanding proof of paternity." Smith v.
    Department of Human Resources, 226 Ga.App 491, 493 (1997).


    The trial court extrapolated that the mere fact of
    separation of the parties gave to Petitioner "... knowledge, at
    the time he was informed of the pregnancy, that the parties
    were no longer in a monogamous relationship and therefore
    he was on notice that he might not be the father". Order,
    Appendix C, p.3 (original numbering), lines 19-22. Nothing
    in the trial record supports such judicial extrapolation. It is a
    non-sequitur. This court should take judicial notice that
    cohabiting couples, married or not, are not necessarily
    behaving monogamously, and further, that couples who
    separate are not necessarily thrust into a libertine lifestyle.
    Such judicial extrapolation should be deemed an abuse of
    discretion.

    The Petitioner was repeatedly assured by the Mother
    that he was the biological father of the minor child. The
    Mother voluntarily withheld information that would have
    caused the Petitioner to doubt the fact that he was the father
    of the minor child.

    The admitted fact that the Mother required assistance
    of a physician to "determine" (without contemporaneous
    DNA or any blood testing) that "Mr. Smith was the Father",
    including the counting of days relative to missed
    menstruation, is probative of the Mother, Toni Odum
    knowing from the very beginning of her pregnancy that there
    were two potential fathers. Her "physician's assistance" in
    her "determination" would have been unnecessary had
    Petitioner been the only man with whom she had
    contemporaneously engaged in intercourse, casting doubt
    upon her professed certainty as to actual paternity.
    Provided with the information that he was not the father
    of the child, Petitioner would never have been ordered by the
    Superior Court to pay child support and he would never had
    agreed to voluntarily pay child support for more than ten
    (10) years. The evidence of non-paternity would have
    prevented the Mother from obtaining child support from the
    Petitioner.

    The Mother committed fraud against the Superior
    Court in several respects:

    First, by failing to disclose the possibility of another
    father, she created an omission from the record of the final
    hearing.

    Second, the Petitioner innocently relied on this
    omission to his detriment. For more than ten (10) years,
    based upon false pretenses advocated by the Mother, the
    Petitioner provided the Mother with over forty thousand
    dollars ($40,000.00) in child support. (FN4)

    Footnote 4: See Gary v. E. Frank Miller Construction Co., Inc.,
    208 Ga.App. 73 (1993).

    Third, the Petitioner reasonably relied on the
    Mother's assertion that he was the biological father of the
    minor child. The Petitioner had no reason to believe that he
    was not the father of the minor child, and the Mother never
    informed him of the possibility that he may not be the father
    of said child. (FN5)

    Footnote 5: See Barret v. Independent Order of Foresters,
    625 F.2d 73 (5th Cir. 1980).

    Throughout the proceedings below, Petitioner
    persisted in misinterpreting the claimed "advice by
    Petitioner's Counsel" to "secure a DNA test". Nowhere does
    the Mother show such purported attorney advice to arise
    from any factually-based suspicion of non-paternity. The
    Court may take judicial notice that a proposal to seek DNA
    evidence is nowadays likely to be a routine procedural
    suggestion made by every attorney defending his client
    against child support obligation in any paternity case.

    To become aware of the public availability of DNA
    testing, from a billboard or by suggestion by counsel, is not
    the onset of a duty of due diligence. It is the realization, for
    the first time, that facts exist probative
    f a different man
    being the father, that should be the trigger for a fresh duty of
    due diligence.


    II.
    Upon a finding by the cognizant State Court that a previous
    judgment of paternity is void, that Court must Order the
    refund to the newly-proven non-father, of all child support,
    whether court ordered or voluntarily paid while under
    mistaken belief of paternity, collection expenses, and court
    expenses.

    As a direct result of the fraud, the Plaintiff was forced
    to relinquish a very substantial amount of money to the
    Mother, which has inflicted a grave financial harm to him. (FN 6,7)

    Footnote 6: See Haynes v. Fincher, 241 Ga.App. 179 (1999).

    Footnote 7: "It is a well recognized principle that one may not retain
    money or
    goods which have come into (her) hands through mistake and which
    (she) is not, in good conscience, entitled to retain." Department of
    Medical Assistance v. Presbyterian Home, Inc. 200 Ga.App. 885, 887.

    The Plaintiff fraudulently obtained over forty
    thousand dollars ($40,000.00) from the Defendant through
    deceit. When misrepresentation of a material fact has
    occurred by one of the parties, then legal fraud has occurred
    and the party can recover damages based on that fraud. (FN 8)

    Footnote 8: See Morton v. W.T. Tharpe & Co., 41 Ga.App 788 (1930).

    Therefore, the Plaintiff should not be allowed to profit from
    the fraud she perpetrated against the Court and the Defendant
    should be allowed to recover from the Plaintiff the damages
    he incurred due to her fraud. (FN 9)

    Footnote 9: See Price v. Mitchell, 154 Ga.App. 523 (1980).

    Lack of de-facto biological paternity deprives the
    Superior Court ab initio of subject matter jurisdiction to
    assess statutory child support from the non-father, or to enter
    or perpetuate an order of legitimization as to the non-father.
    The trial court found, at Order, Appendix C, p.3,
    lines 14-18, that:
    "... the Consent Order of Legitimization and Child
    Custody established paternity and legitimated the
    child of these parties."

    That cannot be so. Legitimization can only be
    accomplished by the biological father. Petitioner is
    absolutely not that person. (FN 10)

    Footnote 10: See Clements v. Phillips, 235 Ga.App. 588,
    510 S.E.2d 311 (Ga.App. 12/03/1998)

    There is no doubt that the DeKalb County Court
    acquired personal jurisdiction over the Mother by her filing
    of the paternity action, and over Petitioner, by service of
    process. But personal jurisdiction does not form a foundation
    for subject matter jurisdiction. Since Petitioner is not a
    biological parent of the subject child, the Paternity Statutes
    do not vest the Superior Court with subject matter
    jurisdiction to order the non-parent Petitioner to pay child
    support, nor does that court have subject matter jurisdiction
    to order a "Legitimation" regarding, or initiated erroneously
    by, a non-parent.

    The Superior Court's subject matter jurisdiction to
    assess child support against an "unwed father" does not exist
    when such a defendant is not the de-facto biological father.
    The Georgia legislature granted power to the Superior Court
    in paternity cases to determine contested paternity, but did
    not grant power (subject matter jurisdiction) to make any
    child-related paternity orders impinging upon a non-parent.

    Subject matter jurisdiction cannot be created where it
    does not exist, nor is it created by agreement or waiver. (FN 11)

    Footnote 11: "...Must a judgment already rendered be set aside because of an alleged structural error to which the losing party did not properly object? There is no reason in principle why that should always be so. It will
    sometimes be so - not, however, because the error was structural, but
    because, whether structural or not, it deprived the [federal] court of its requisite subject-matter jurisdiction. Such an error may be raised by a
    party, and indeed must be noticed sua sponte by a court, at all points in
    the litigation, see, e. g., American Fire & Casualty Co. v. Finn, 341
    U.S. 6, 17-18 (1951); Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S.
    379, 382 (1884); Capron v. Van Noorden, 2 Cranch 126, 127 (1804)."
    Freytag v. Commissioner, 501 U.S. 868 (1991) JUSTICE SCALIA, with
    whom JUSTICE O'CONNOR, JUSTICE KENNEDY, and JUSTICE
    SOUTER join, concurring in part and concurring in the judgment.
    (emphasis supplied)

    As the U.S. Supreme Court indicated in Freytag, id.,
    the issue of Subject Matter Jurisdiction not only may be
    raised at any time, all courts have an affirmative duty to
    examine the issue when it is raised by a party, or sua sponte.
    Purported lack of "due diligence" by a litigant does not
    affect that affirmative duty. The Court of Appeals or State
    Supreme Court should not be permitted to sub silentio ratify
    the trial court's jurisdictionally defective exercise of power to
    continue application of a mistaken child support order
    against a non-father.

    Indeed, the Court of Appeals and State Supreme
    Court lack power to so ratify on a theory that Petitioner
    Carnell Smith "waived" by purported lack of "due diligence"
    his right to seek the setting aside of the manifestly baseless
    child support order. (FN12)

    Footnote 12: "Since such a jurisdictional defect deprives not only the
    initial court but also the appellate court of its power over the case or controversy, to
    permit the appellate court to ignore it because of waiver would be to give
    the waiver legitimating, as opposed to merely remedial, effect, i. e., the effect of approving, ex ante, unlawful action by the appellate court
    itself." Freytag v. Commissioner, 501 U.S. 868 (1991), id. JUSTICE
    SCALIA, with whom JUSTICE O'CONNOR, JUSTICE KENNEDY,
    and JUSTICE SOUTER join, concurring in part and concurring in the
    judgment.

    When paternity is declared, legitimization is ordered,
    or child support is imposed, and the Court becomes aware of
    dispositive evidence of biological non-paternity, a decision
    such as that herein, denying retrial on the basis of alleged
    lack of due diligence, violates the court's duty of
    jurisdictional self-examination. Just as the execution of a
    criminal defendant known before the execution to be
    innocent is an affront to our Constitution, the maintenance of
    a manifest fiction in order to perpetuate a financial obligation
    and avoid "delegitimization" of a child violates the
    Fourteenth Amendment rights not only of the non-father, but
    also the substantive rights of the child. (FN13)

    Footnote 13: "It goes without saying that a child has an interest in not
    being
    legitimated by someone who is not his father. See, e.g., In re Ashmore,
    163 Ga. App. 194, 195 (1) (293 SE2d 457) (1982) (any interested party
    may file objection to legitimization petition). The fact that the mother
    was a participant in a fraudulent scheme to have the child wrongfully legitimated does not lessen this interest. Legitimation is not a game, and
    the child is not the prize." Clements v. Phillips, id. 235 Ga.App. 588, 510 S.E.2d 311 (Ga.App. 12/03/1998)

    Although there was initially an assumption herein by the
    Superior Court that it had acquired Subject Matter
    Jurisdiction by virtue of the Petitioner's voluntary agreement
    to such a declaration of status, once proof of non-paternity is
    presented, the Superior Court must, however reluctantly,
    admit that it never actually had subject matter jurisdiction.
    Granting a new trial is not discretionary in such
    circumstances, to rectify the mistaken previous judgments
    and orders; it is necessary in the interests of justice. (FN 14)

    Footnote 14: "...I write separately to point out the
    absurdity of the present state of
    the law that requires a putative father to pay child support after he has scientifically proven that he is not the biological father. As I stated in Smith v. Department of Human Resources, 226 Ga. App. 491, 493 (487
    SE2d 94) (1997), 'the law should not punish a purported father for failing
    to insist on a paternity test when he has no reason to believe that he is
    not
    the father.' Not only has the putative father been cuckolded, the law adds injury to insult by requiring him to pay child support even after he establishes that he is not the biological father. Once non-paternity is scientifically established, courts cannot ignore such fact by relying on policies developed when no such proof was possible. To create a fiction
    in this matter does not make the male the biological father of the child; it simply makes him the victim of the law. It also makes an ass of the law....While the courts may preach their false policy, they lose the
    respect of any citizen with common sense" Georgia Department of
    Human Resources v. Pinter, 241 Ga.App. 10, 525 S.E.2d 715 (Ga.App.
    11/18/1999) BLACKBURN, Presiding Judge, specially Concurring.


    O.C.G.A. 19-7-40 clearly provides that the Superior
    Court and the state courts have jurisdiction of paternity and
    child support. But once there is proof of non-paternity of the
    non-father, neither the Superior Court nor the state appellate
    courts remain vested with Subject Matter Jurisdiction
    regarding him to require, assess, or perpetuate child support.

    The United States Supreme Court, earlier in the
    present 2001-2002 term, denied Certiorari in a Texas-based
    case wherein review solely invoking the Fourteenth
    Amendment to the United States Constitution had been
    denied to a divorced man. He had discovered, via post
    divorce health-related blood testing, that he was not the
    biological father of multiple children born during the
    marriage. While the divorced man did not, as herein, raise
    lack of subject matter jurisdiction in his Certiorari Petition,
    he recited a number of valuable cases showing proper post-
    decree reversal of paternity findings and monetary
    consequences in States other than Texas. (FN 15)

    Footnote 15: Wise v. Fryar, Petition for Writ of Certiorari, U.S. Supreme
    Court No. 01-562, cert.den., which cited, among others, the following cases: White v. Armstrong, 1999 WL 33085 (Tenn. Ct.App 1/27/99);
    De Filippis v. United States, 567 Fed.2d 341, 343-44 (7th Cir. 1977);
    United States v. Swift & Co., 286 U.S. 106, 114-15 , 52 S.Ct 460 (1932;
    Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985 (1983);
    WY. Dept. of Fam. Serv.,MJJ v.PAG & MJA,934 P.2d 1257 (Wy.1977);
    Kohl v. Amundson, 620 NW2d 606 (S.D. 1/3/2001);
    AG Edwards & Son v. Norwest Rlty Co.,340 NW2d187,189 (S.D.1983);
    Love v. Love, 114 Nev. 572, 959 P.2d 523 (Nev. 5/19/98);
    Libro v. Walls, 103 Nev. 540, 543, 746 P.2d 632, 634 (Nev. 1987);
    Langston v. Riffe v. Langston, Daniel R. v. Tyrone W., 359 Md 396,
    754 A.2d 389 (June 28, 2000);
    Jenkins v. MAB and JB, 723 So.2d 649 (Ala. 7/17/98)
    Dixon v. Punchy, 979 P.2d 520, 526 (Alaska 1999)

    The Orders herein sought to be vacated are arguably
    void ab initio. That does not mean that the court does not
    still have a task to perform in rectifying its previous error.
    While the Superior Court manifestly lacks Subject Matter
    Jurisdiction over matters of current or future support
    regarding Petitioner in this case, it retains personal
    jurisdiction over the Mother, for having caused Petitioner to
    be damaged through jurisdictionally defective invocation of
    the Court's power.

    CONCLUSION

    Petitioner, having been subjected to provably void
    Subject Matter Jurisdiction, has standing to raise a facial
    challenge against that exercise. Invalidation on constitutional
    grounds goes directly to the power of a Court to hear, try,
    and adjudicate a matter wholly based upon an ab initio lack
    of the necessary biological relationship by which a de facto
    father is constitutionally made a party to a paternity action.
    Petitioner lacks the capacity to "forfeit" the question of
    subject matter jurisdiction. He can, and has, properly and
    expeditiously raised the issue for the first time in the trial
    court, and at every appellate level thereafter. He could have
    raised it for the first time in seeking Certiorari.
    For the foregoing reasons, Petitioner should not have
    been denied re-opening of the Paternity, Support and
    Legitimation case.
    The United States Supreme Court should choose
    whichever of the remedies sought herein it deems
    appropriate, and either grant Certiorari and then upon
    briefing and argument, reverse the Georgia Supreme Court's
    denial of Discretionary Appeal, or more directly use its own
    original discretion to grant a Discretionary Appeal.
    Upon recognition of the jurisdictional principles
    argued herein, this Court may short circuit any extended
    appellate proceedings and fashion such direct remedies it
    deems reasonable, including but not limited to directly
    ordering the Superior Court to reopen proceedings so as to
    stop the child support order, and order that
    Petitioner/Applicant be fully compensated for the more than
    $40,000 fraudulently received by Mother , plus costs.


    Respectfully submitted this 9th. day of April, 2002.

    ___________________________
    Carnell A. Smith
    In Propria Persona
    (Address and phone redacted) ----------------------------------------------------

    Appendix A

    SUPREME COURT OF THE STATE OF GEORGIA
    CLERK'S OFFICE
    ATLANTA

    DATE: January 09, 2002
    Carnell A. Smith
    (Address and phone redacted)

    Case No. S01C1628

    CARNELL A. SMITH V. TONI W. ODOM

    COURT OF APPEALS CASE NO: A01D0340

    The Supreme Court today denied the petition for
    certiorari in this case.

    All the justices concur.

    Sherie M. Welch, Clerk


    Appendix B

    Court of Appeals
    of the State of Georgia

    ATLANTA, JULY 10, 2001

    The Court of Appeals hereby passes the following order:

    Upon consideration of the Application for Discretionary
    Appeal, it is ordered that it be hereby DENIED.

    90029

    98127449

    Court of Appeals of the State of Georgia
    Clerk's Office, Atlanta Jul. 10, 2001
    I certify that the above is a true extract
    from the minutes of the Court of Appeals
    of Georgia.
    Witness my signature and the seal of said
    Court hereto affixed the day and year last
    above written.
    Clerk
    /S/ Walter Z. Martin, III


    Appendix C

    IN THE SUPERIOR COURT OF DEKALB COUNTY
    STATE OF GEORGIA

    TONI W. ODUM )
    Plaintiff ) CIVIL ACTION
    vs. )
    CARNELL A. SMITH ) FILE NO. 98-12744-9
    Defendant )

    O R D E R

    The above-styled case came before the Court for a
    hearing on April 16, 2001 on Defendant's "extraordinary
    Motion and Brief for New Trial to Set Aside Child Support
    and Grant Defendant Relief Based on the Plaintiff's
    Perpetrating Fraud Upon the Court band Defendant" as
    amended. Both parties were present and represented by
    counsel. The Court has considered and reviewed the file, the
    motion and response, and has heard evidence and argument
    of counsel.

    Procedural History
    On December 17, 1998, Plaintiff filed a verified
    Complaint to Establish Paternity and Set Child Support
    pro se, although she later retained counsel. On January 28,
    1999, Defendant, represented by counsel, filed a verified
    Answer and Counterclaim for Legitimation. The parties
    presented the Court with a Consent Order of Legitimation
    and Child Custody signed by both parties and their
    respective counsel, which the Court signed and filed on July
    29, 1999. That same day, the Court signed and filed a second
    order for temporary child support and visitation. On
    February 29, 2000, the case came for trial on the issues of
    child support and visitation; after a lengthy bench trial at
    which both parties testified, the Court signed and filed an
    order on March 2, 2000 setting visitation and ordering child
    support of $750.00 per month. On March 31, 2000,
    Defendant, the father, filed "Defendant's Motion to Modify
    or in the Alternative Motion for reconsideration of the Final
    Order" asking the Court to allow him more visitation with
    the child. A hearing on that motion was scheduled but
    canceled at Defendant's request. On August 28, 2000,
    Defendant filed the motion now before the Court and
    informally requested time for the parties to undergo genetic
    testing to determine the paternity of the child.

    Findings of Fact
    It is undisputed that the history of the relationship is
    as follows: the parties, who were dating but not living
    together, considered themselves to be in a monogamous
    relationship until Defendant told Plaintiff that he wanted to
    date other women; after some time had passed and the
    parties were no longer dating, Plaintiff informed Defendant
    that she was pregnant with his child. It is undisputed that the
    child was born in December 1988.
    At the hearing, Plaintiff testified that she always
    considered Defendant to be the father of the child because
    she had physical indications of possible pregnancy
    immediately after the parties had stopped seeing each other,
    before she was intimate with anyone else. Plaintiff testified
    that she did not know until she received the results of the
    paternity test in the year 2000 that Defendant was not and
    could not be the father of this child. Defendant testified that
    Plaintiff told him she was pregnant and he was the father of
    the child some time after the parties stopped dating each
    other, at a time when he considered himself free to date other
    women and he considered Plaintiff to be free to date other
    men. Defendant testified that, when he retained an attorney
    to represent him at the onset of this paternity action, that
    attorney advised him to take a paternity test and he said no.
    The Court finds that the Consent Order of
    Legitimation and Child Custody established paternity and
    legitimated the child of these parties. The Court finds that
    Defendant has abandoned his Motion to Modify regarding
    additional visitation, as he is now asking this Court to relieve
    him of the duties of fatherhood.

    The Court finds Defendant had knowledge, at the
    time he was informed of the pregnancy, that the parties were
    no longer in a monogamous relationship and therefore
    Defendant was on notice that he might not be the father. The
    Court finds that Defendant knew he could request a paternity
    test before he counterclaimed to legitimate this child, but did
    not do so. The Court finds that Defendant did not exercise
    due diligence in ascertaining paternity of the child and that
    Defendant's want of due diligence was the reason the newly
    discovered evidence of paternity was not known to him
    sooner.

    Legal Standard
    The Georgia Supreme Court held that extraordinary
    motions for a new trial on the basis of newly available
    evidence are not favored: The requirements for granting an
    extraordinary motion for a new trial are clear. On an
    extraordinary motion for a new trial based on newly
    discovered evidence, it is incumbent that the movant satisfy
    the court: (1) that the newly discovered evidence has come to
    his knowledge since the trial; (2) that want of due diligence
    was not the reason that the evidence was not acquired
    sooner; (3) that the evidence was so material that it would
    probably produce a different verdict; (4) that it is not
    cumulative onlt; (5) that the affidavit of the witness is
    attached to the motion or its absence accounted for; and (6)
    that the new evidence does not operate solely to impeach the
    credit of a witness. [Cits. and punctuation omitted] Patterson
    v. Whitehead, 224 Ga. App. 636, 638(3) (1997), citing
    Roddenberry v. Roddenberry, 255 Ga. 715, 717 (1986).

    Conclusions of Law
    Defendant has not proven, by a preponderance of
    evidence, that Plaintiff perpetrated fraud upon him or this
    Court. Defendant is not entitled to a grant of a new trial
    based on newly discovered evidence because he failed to
    exercise due diligence in acquiring such evidence timely.
    Roddenberry, supra. Therefore Defendant's "Extraordinary
    Motion and Brief for New Trial to Set Aside Child Support
    and Grant Defendant Relief Based on the Plaintiff
    Perpetrating Fraud Upon this Court and Defendant":, as
    amended, is DENIED.

    SO ORDERED this 14 day of May, 2001.

    /s/ Edward A. Wheeler
    Stone Mountain Judicial Circuit
    Senior Judge

    Cc: Corinne M. Mull, Esq.
    Randall M. Kessler, Esq.

    (Sealed by deputy clerk 12th day of June, 2001,
    signature of clerk illegible)
    Filed in DeKalb County Court May 14 2001

    ----------------------------------------------------------
    End verbatim copy.
    ----------------------------------------------------------
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