B.H. v. K.D., 920383

Citation506 N.W.2d 368
Decision Date08 September 1993
Docket NumberNo. 920383,920383
PartiesB.H., Plaintiff and Appellee, v. K.D., D.D., Defendants and Appellants, A.D., a minor child, and her Guardian Ad Litem, Richard C. Throndset, Defendants. Civ.
CourtUnited States State Supreme Court of North Dakota

Michael L. Wagner (argued), Bismarck, for defendants and appellants.

Kimberly Ann Johnson (argued), Asst. State's Atty., Bismarck, for plaintiff and appellee; appearance by Beth Birdsall.

NEUMANN, Justice.

K.D. (Kelly, a pseudonym) and D.D. (Dean, a pseudonym) appeal from two orders entered by the District Court for Burleigh County in an action initiated by B.H. (Barry, a pseudonym) to determine the paternity of A.D. (Anna, a pseudonym). One order denied Kelly and Dean's motion for summary judgment. The other order compelled Kelly and Anna to undergo blood tests. We exercise supervision and reverse the orders.

In January 1991, Kelly and Dean were engaged to be married. Anna was conceived in March 1991. At that time, Kelly had sexual relations with both Dean and Barry. Although there is some dispute in the record as to whether the sexual relationship with Barry was consensual, Kelly admits that she had sexual intercourse with Barry around the time of Anna's conception. In May 1991, Kelly and Dean were married, this being the first marriage for both. Anna was born in December 1991, during the marriage of Kelly and Dean. Subsequent to Anna's birth, Barry obtained the legal services of the Regional Child Support Enforcement Unit to assist him in an action against Anna, Kelly, and Dean, to determine the paternity of Anna. Barry alleges that Anna is his child, and he moved the district court to order blood tests of Kelly and Anna to aid him in proving paternity. Kelly and Dean countered with a motion for summary judgment, contending that under North Dakota's Uniform Parentage Act, Chapter 14-17, N.D.C.C., Barry lacks standing to bring this action. The district court ordered the blood tests, and denied the motion for summary judgment. This timely appeal followed.

I.

Before we reach the merits of this matter, we must address the appealability of the orders from which Kelly and Dean appealed. Both are interlocutory orders, and ordinarily are not appealable because they are not final dispositions of the action on appeal. See Vinje v. Sabot, 477 N.W.2d 198, 199 (N.D.1991) (an "order denying summary judgment is interlocutory and is not appealable"); Gillan v. Saffell, 395 N.W.2d 148, 149 (N.D.1986) (a motion for summary judgment denied by an order in the trial court is interlocutory and not appealable to this Court); Malony v. Cass County Court, 301 N.W.2d 112, 113 (N.D.1980) (normally, "orders relating to pretrial discovery are by nature interlocutory and not appealable"); Budge v. Anderson, 146 N.W.2d 169, 170 (N.D.1966) (an order providing for the physical examination of a party is interlocutory and is not appealable).

However, there are some orders which are appealable to this Court even though they are not final dispositions of a case. Our case law in this area has evolved over the past few years, and currently, to qualify for appellate review, an order must satisfy a two-step process. See, e.g., Nesvig v. Anderson Bros. Constr. Co., 490 N.W.2d 478 (N.D.1992); Ceartin v. Ochs, 479 N.W.2d 863 (N.D.1992); Gissel v. Kenmare Township, 463 N.W.2d 668 (N.D.1990); Peterson v. Zerr, 443 N.W.2d 293 (N.D.1989); Sargent County Bank v. Wentworth, 434 N.W.2d 562 (N.D.1989). First, the order must fit within the laundry list of appealable orders codified in Section 28-27-02, N.D.C.C. 1 Gast Constr. Co. v. Brighton Partnership, 422 N.W.2d 389, 390 (N.D.1988). If it is not one of the types of orders found in the statute, our inquiry ends. We need go no farther because we would lack jurisdiction, and the appeal would be dismissed. Id. The second step involves compliance with Rule 54(b), N.D.R.App.P. 2 If Rule 54(b) certification is absent, we would also lack jurisdiction, and the appeal would be dismissed. Id.

Kelly and Dean argue that the orders fall within the first subsection of Section 28-27-02 N.D.C.C., because the orders affect the substantial rights of Kelly, Dean, and Anna, as a family unit. We agree with the assertion that the order compelling blood tests affects the family's substantial rights. Parenting and the family unit are important considerations, protected, at least in part, by the United States Constitution. The high court has said: "Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition." Michael H. v. Gerald D., 491 U.S. 110, 124, 109 S.Ct. 2333, 2342, 105 L.Ed.2d 91 (1989) (quoting Moore v. East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 1938, 52 L.Ed.2d 531 (1977)). If allowed, the blood tests possess the capability to pierce the protected realm of the family unit composed of Kelly, Dean, and Anna. The blood tests could destroy the very foundation of the family structure they have built. Therefore, we are satisfied that the blood test order threatens the protected family unit, affecting Kelly and Dean's substantial rights. The first step of the appealability analysis is satisfied.

It is the second step which presents the problem for Kelly and Dean. There has been no Rule 54(b) certification in this case. Although Kelly and Dean moved the district court to certify the orders for appeal, it denied their motion. While that denial may have been an abuse of discretion, without a Rule 54(b) certification, we lack jurisdiction over this appeal. 3 Thus, under normal circumstances, this appeal should be dismissed. However, the facts presented in this case are not normal, they are extraordinary, and we have other means by which we may exercise jurisdiction in this case.

This Court has authority to exercise its original jurisdiction by issuing a supervisory writ. N.D. Const. art. VI, Sec. 2. We will do so cautiously, and only in extraordinary circumstances. "Exercise of our original, supervisory jurisdiction is discretionary with this court, and that jurisdiction is exercised rarely and cautiously." Jane H. v. Rothe, 488 N.W.2d 879, 881 (N.D.1992). See also Odden v. O'Keefe, 450 N.W.2d 707 (N.D.1990). Additionally, we will grant a supervisory writ only to prevent injustice in cases where the aggrieved parties have nowhere else to turn. "Our superintending control over inferior courts is used to prevent injustice in extraordinary cases where no other remedy is adequate or allowed by law." Id. at 708. As mentioned above, we believe that the blood test order affects the substantial rights of the family involved. The tests have the potential of destroying the family unit. To wait until final judgment to appeal the discovery order may well be too late. The irreparable damage may already have taken place. Without a supervisory writ, Kelly and Dean have no other adequate remedy allowed by law. Therefore, even though no application for a supervisory writ has been made to this Court, we conclude that the orders "so affect[ ] the fundamental merits of the case that we will consider the appeal as a request to exercise our supervisory jurisdiction and, exercising our discretion, we will consider the issues on their merits." Thompson v. Goetz, 455 N.W.2d 580, 583 (N.D.1990). See also Vorachek v. Citizens State Bank, 461 N.W.2d 580, 584 (N.D.1990); Garrison Memorial Hosp. v. Rayer, 453 N.W.2d 787, 788 (N.D.1990).

II.

Under our legislative enactments, Barry lacks the required standing to bring an action disputing the paternity of Anna, a child born during the marriage of Kelly and Dean. The legitimacy and paternity of children are addressed by the North Dakota Legislative Assembly in the Uniform Parentage Act (UPA) and elsewhere in the Code. Outside of the UPA, in a chapter entitled "Domestic Relations and Persons," it states: "All children born in wedlock are presumed to be legitimate." Section 14-09-01, N.D.C.C. Standing to dispute the presumption of legitimacy is also contained within that chapter, and it reads: "The presumption of legitimacy can be disputed only by the husband or wife, or the descendant of one or both of them. Illegitimacy in such case may be proved like any other fact." Section 14-09-03, N.D.C.C. (emphasis added). Thus, under these general statutes, Barry clearly has no standing to rebut the presumption of Anna's legitimacy, and in turn, Dean's paternity of Anna. 4

The UPA statutes also deny Barry standing to bring this action. First, we must study the presumption statute, which reads:

"Presumption of paternity.

1. A man is presumed to be the natural father of a child if:

a. He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within three hundred days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation is entered by a court;

b. Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:

(1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within three hundred days after its termination by death, annulment, declaration of invalidity, or divorce; or

(2) If the attempted marriage is invalid without a court order, the child is born within three hundred days after the termination of cohabitation;

c. After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:

(1) He has acknowledged his paternity of the child in writing filed with the division of vital...

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