1998 -NMCA- 67, Tedford v. Gregory

• Decision Date: 26 March 1998
• Docket Number: No. 18221,18221
• Citation: 1998 NMCA 67,959 P.2d 540,125 N.M. 206
• Parties: , 1998 -NMCA- 67 Jeanne TEDFORD, Petitioner-Appellee and Cross-Appellant, v. Donald Wayne GREGORY, Respondent-Appellant and Cross-Appellee, v. Harvey TEDFORD, Third-Party Defendant-Appellee and Cross-Appellant.
• Court: Court of Appeals of New Mexico

Page 540

959 P.2d 540

125 N.M. 206, 1998 -NMCA- 67

Jeanne TEDFORD, Petitioner-Appellee and Cross-Appellant, v. Donald Wayne GREGORY, Respondent-Appellant and Cross-Appellee, v. Harvey TEDFORD, Third-Party Defendant-Appellee and Cross-Appellant.

No. 18221.

Court of Appeals of New Mexico.

March 26, 1998.

Certiorari Denied May 6, 1998.

H.R. Quintero, Robinson & Quintero, P.C., Silver City, for Appellee and Cross-Appellant.

W.T. Martin, Jr., Law Offices of W.T. Martin, Jr., P.A., Carlsbad, for Appellant and Cross-Appellee.

Stephen E. Boatwright, Carlsbad, for Third-Party Appellee and Cross-Appellant.

OPINION

DONNELLY, Judge.

¶1 The multi-appeals in this case arise out of a suit filed by Jeanne Tedford (Jeanne) under the Uniform Parentage Act, NMSA 1978, §§ 40-11-1 to -23 (1986, as amended through 1997) (UPA), against Donald Wayne Gregory, her alleged natural father. Jeanne's suit sought to establish paternity and to recover retroactive child support against Gregory. Gregory did not admit that he was the natural father of Jeanne, and filed a third-party claim against Harvey Tedford (Tedford), asserting that Tedford was the natural father of Jeanne. Tedford filed a counterclaim against Gregory and a cross-claim against Jeanne asserting that in the event Jeanne established her paternity claim against Gregory, Tedford should be reimbursed for the amount of child support and other monies he expended on Jeanne's behalf.

¶2 Gregory raises ten issues on appeal, which we consolidate and discuss as follows: (1) whether the trial court erred in determining that he was the natural father of Jeanne and in awarding her retroactive child support; (2) whether the award of $50,000 as child support to Jeanne from Gregory is supported by substantial evidence; and (3) whether Tedford is barred from recovering reimbursement for child support from Gregory under principles of collateral estoppel, waiver, and latches.

¶3 Jeanne's cross-appeal presents three issues: (1) whether the trial court erred in calculating its award of retroactive child support; (2) whether the trial court erred in refusing to award her reasonable fees and costs; and (3) whether the trial court erred in refusing to impose sanctions against Gregory.

¶4 Tedford's cross-appeal asserts that the trial court erred (1) in only awarding him a portion of the monies he expended on behalf of Jeanne and in refusing to award him full reimbursement for all monies expended by him, and (2) in refusing to award him reasonable attorney fees and costs against Gregory.

¶5 We affirm in part and reverse in part.

FACTS AND PROCEDURAL POSTURE

¶6 Jeanne, who was born on September 27, 1974, brought suit on February 20, 1995, against Gregory seeking to establish paternity and to recover retroactive child support. Gregory admitted having a sexual relationship with Jeanne's mother, Nina Tedford (Nina) during her marriage to Tedford, but denied that he was Jeanne's father. At the time of Jeanne's birth, Tedford was married to Nina. Tedford supported Jeanne, both during her minority and after she became an adult, believing her to be his child. Tedford also supported three other children born during his marriage to Nina. At no time before, during or after Jeanne's birth, did Nina ever inform Tedford that Jeanne was not his natural child.

¶7 In November 1975, when Jeanne was fourteen months old, Tedford filed for divorce from Nina. The petition alleged that four children were born of the marriage, including Jeanne. Nina and Tedford executed a property settlement agreement in which they acknowledged that the four children, including Jeanne, were born of their marriage. The property settlement agreement settled Nina's and Tedford's respective property rights and also provided for the custody and support of the minor children. Under the agreement, Nina was granted custody of Jeanne, and Tedford was required to pay child support for Jeanne in the amount of $100 per month. The divorce decree included a finding that Jeanne was born of the marriage and also incorporated the property settlement agreement. The issues of paternity and of Tedford's obligation to provide child support for Jeanne were not in question in the divorce proceeding. No appeal was taken from the divorce decree.

¶8 On December 20, 1994, when Jeanne was twenty years old, Nina filed suit in Eddy County District Court against Gregory to establish Jeanne's paternity and requesting an award of retroactive child support. Jeanne was not a party to that action. Gregory filed a motion for summary judgment asserting that Nina was collaterally estopped by the judgment in her divorce action from denying that Tedford was Jeanne's father. The district court granted summary judgment and dismissed Nina's suit.

¶9 Thereafter, in February 1995 Jeanne filed a petition to establish Gregory's paternity and to obtain retroactive child support from the date of her birth under the UPA. The trial court ordered blood and genetic tests to be performed on Jeanne, Gregory, and Nina. The test results indicated a 99.9994% probability that Gregory was the biological father of Jeanne. The test results excluded Tedford as being Jeanne's biological father. Gregory stipulated to the probability of paternity, and thereafter filed a document entitled "Consent to Harvey Tedford's Acknowledgment of Paternity."

¶10 At the conclusion of the trial, the trial court declared Gregory to be Jeanne's natural father and awarded Jeanne past child support in the amount of $50,000, plus post-judgment interest. The trial court also awarded $40,900.07, plus post-judgment interest, against Gregory and in favor of Tedford, as reimbursement for some of the support paid by Tedford. The trial court ordered all parties to bear their own attorney's fees and costs.

DISCUSSION

I. Gregory's Appeal

A. Challenges to Jeanne's Claims

¶11 We first address Gregory's claim that the trial court erred in holding that Jeanne, an adult, has a cause of action against him to establish paternity and to recover retroactive child support under New Mexico's version of the UPA. Gregory, citing In re Paternity of P.J.W., 150 Wis.2d 123, 441 N.W.2d 289 (App.1989), argues that nothing in the latter act authorizes an adult to pursue a cause of action against an alleged natural father for retroactive child support. We disagree.

¶12 We find Gregory's reliance on In re Paternity of P.J.W. to be misplaced. Wisconsin has not adopted the UPA, and Wisconsin appears to have no statute of limitations comparable to Section 40-11-23(A) (1989) contained in this state's version of such act. Instead, the Wisconsin Court of Appeals, in In re Paternity of P.J.W., construed a much more restrictive statute providing that a father's liability for past support of a child is limited to a claim for support for the period following commencement of such action. Id., 441 N.W.2d at 290-91.

¶13 An action to establish paternity and to recover retroactive child support against a putative natural father is expressly authorized by the provisions of the UPA. See Padilla v. Montano, 116 N.M. 398, 403-04, 862 P.2d 1257, 1262-63 (Ct.App.1993). Section 40-11-7(A) provides that "[a]ny interested party may bring an action for the purpose of determining the existence or nonexistence of the parent and child relationship." Similarly, Section 40-11-8(A) permits an action to determine paternity to be combined with an action for support. Section 40-11-23(A) (1989) of the UPA provides that "[a]n action to determine a parent and child relationship under the [UPA] shall be brought no later than three years after the child has reached the age of majority." The age of majority in New Mexico is eighteen years of age. NMSA 1978, § 28-6-1(A) (1973). Jeanne brought this action when she was twenty years old, and within two years after she reached the age of majority. The twenty-one-year statuteof limitations of Section 40-11-23(A) applies to both paternity claims and claims for past child support. Padilla, 116 N.M. at 401-02, 862 P.2d at 1260-61. Therefore, her action was timely filed under the UPA, and Jeanne, in her status as an adult, is clearly an "interested party" entitled to initiate proceedings under the UPA.

Best Interests of the Child

¶14 Gregory also argues that the trial court, in determining whether he was the natural father of Jeanne and whether he should be required to pay retroactive child support, failed to consider the best interests of the child. In advancing this argument, Gregory relies on cases in which courts have declined to determine paternity when doing so would be contrary to the child's best interests. See In re Paternity of "Adam", 273 Mont. 351, 903 P.2d 207, 211 (1995) (probability that putative father was biological father was important but not controlling consideration in paternity action, but rather best interest of child was proper standard to apply in determining whether to declare paternity); McDaniels v. Carlson, 108 Wash.2d 299, 738 P.2d 254, 262 (1987) (en banc) ("In determining whether it is in the child's best interests to allow a paternity action by one outside the present family, the trial court should consider the stability of the present home environment, the existence or lack thereof of an ongoing family unit, the extent to which uncertainty of parentage already exists in the child's mind, and any other factors which may be relevant in assessing the potential benefit or detriment to the child.").

¶15 According to the best-interest-of-the-child approach, the trial court does not automatically assume that a paternity determination is in the best interest of the child. Id. Where a child is young and has already established a close emotional bond with the presumed father, and where the trial court determines that it would be detrimental to the child's welfare to compromise the continuity of that established relationship, the court will not determine paternity solely on the basis of a biological...