Bodwell v. Brooks, 95-772

• Court: Supreme Court of New Hampshire
• Citation: 141 N.H. 508,686 A.2d 1179
• Docket Number: No. 95-772,95-772
• Parties: Erica U. BODWELL & A. v. Troy BROOKS.
• Decision Date: 23 December 1996

Page 1179

686 A.2d 1179 141 N.H. 508 Erica U. BODWELL & A.
v.
Troy BROOKS. No. 95-772. Supreme Court of New Hampshire. Dec. 23, 1996.

Page 1180

[141 N.H. 509] Blodgett, Makechnie & Vetne, Peterborough (John H. Vetne, on the brief and orally), for intervenor, Mark Bodwell.

Troy Brooks, pro se, filed no brief.

Debra Owen Stanley, Concord, joined in the intervenor's brief and orally, as guardian ad litem for the minor child.

HORTON, Justice.

This case involves conflicting claims for custody of a minor child brought by his

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biological mother, Erica U. Bodwell; her husband, Mark Bodwell; and the child's biological father, Troy Brooks. Mark Bodwell appeals a decree of the Superior Court (Groff, J.) approving the Marital Master's (Deborah Kane Rein, Esq.) ruling that as the child's stepfather, Mark Bodwell lacks standing to assert any legal rights, including custodial rights, toward the child. We reverse and remand.

Erica and Mark Bodwell were married in June 1989 and divorced in October 1992. While the couple was separated in May 1992, Erica had a relationship with Troy Brooks and became pregnant with the child. During the subsequent divorce proceedings, Mark first asserted the illegitimacy of the unborn child but later withdrew the allegation. The divorce decree did not address the issue of paternity. Shortly after the child's birth in February 1993, Erica and Mark renewed cohabitation and eventually remarried in August 1993.

Also in February 1993, Erica filed a domestic violence and paternity petition against Brooks, which named him as the child's biological father. Brooks did not file an answer to the petition but affirmatively acknowledged his paternity. In June 1993, the superior court dismissed Erica's domestic violence petition. In early August 1993, Erica filed a motion to dismiss (voluntary nonsuit) her remaining claims. Shortly thereafter Brooks filed a motion for legal custody. Also in August 1993, Mark Bodwell filed an affidavit avowing his paternity of the child. He moved to intervene and to dismiss Erica's paternity claim on the grounds that it was barred by res judicata and collateral estoppel based on the divorce decree. In addition, Mark joined Erica in arguing that Brooks lacked standing and that his claims of paternity or custody should be dismissed. In June 1994, the superior court by order confirmed Brooks' standing to proceed on his cross-petition for paternity. At a status conference held thereafter, the Bodwells informed the court that the child's biological paternity would not be contested. The court thereupon [141 N.H. 510] appointed a guardian ad litem to address "[the child's] best interests and his legal relationship to all three parties."

In May 1995, the court ordered the parties to file memoranda on whether the court had jurisdiction to award joint legal custody to Erica, the natural mother, and Mark, her husband and the child's stepfather. Later that month Brooks filed a motion for physical custody of the child.

The superior court ruled that based on RSA 522:5, the New Hampshire Uniform Act on Blood Tests to Determine Paternity statute, Mark's legal paternity status was rebutted as a matter of law once Brooks' biological paternity was established. The court held that "Mr. Bodwell lacks standing to assert any legal rights, including custodial rights, toward" the child. Although the superior court held it had jurisdiction to determine custody between the natural parents, the court concluded that Mark's efforts to seek a legal or custodial relationship with the child must be brought in probate court.

On appeal, Mark contends that the superior court erred in ruling that his status as legal father of the child was terminated when Brooks' status as the biological father was ascertained. Mark also argues that even if his legal status is only that of a stepfather, the superior court erred in ruling that it lacks jurisdiction to include him in physical and legal custody determinations based on the best interests of the child.

Under the common law and by statute, children conceived or born during a lawful marriage are presumed to be legitimate. See RSA 522:5 (1974); RSA 458:23 (1992); State v. Sargent, 100 N.H. 29, 30, 118 A.2d 596, 597 (1955); Saunders v. Fredette, 84 N.H. 414, 416, 151 A. 820, 820 (1930). It is undisputed that the child was conceived during the lawful marriage of Erica and Mark. It is also clear that although Mark raised questions regarding the child's paternity during the divorce proceedings, he did not pursue this claim, and the divorce decree did not address his paternity. See RSA 458:23. He later specifically avowed his paternity of the child. In the first instance then, the child is presumed to be the Bodwells' legitimate child.

The presumption of legitimacy can be rebutted in certain circumstances. See RSA 522:5; RSA 458:23; Watts v. Watts, 115 N.H. 186, 188, 337 A.2d 350, 352 (1975);

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Sargent, 100 N.H. at 30, 118 A.2d at 597; Saunders, 84 N.H. at 416, 151 A. at 820-21. It "may be rebutted under our common law by satisfactory proof that the husband is not the father of the child." Sargent, 100 N.H. at 30-31, 118 A.2d at 597. Evidence to rebut the presumption may include [141 N.H. 511] blood tests, testimony by experts or others, medical or scientific evidence, and statistical probability evidence. See RSA 522:4 (Supp.1996), :4-a (Supp.1996), :5. It may also include "proof of a voluntary acceptance of parental...