Clay v. Clay
| Decision Date | 09 December 1986 |
| Docket Number | Nos. C1-86-1056,C3-86-1057,s. C1-86-1056 |
| Citation | 397 N.W.2d 571 |
| Parties | In re the Marriage of Lois A. CLAY, Petitioner, Respondent, v. Robert J. CLAY, Appellant, County of Blue Earth, Gerald Augustin, Respondents. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. The trial court did not err by denying appellant's motion for vacation of a dissolution decree provision which determined that he was the father of a child born during the marriage, nor in denying appellant's request for blood tests.
2. The trial court did not err by granting summary judgment under Minn.Stat. Sec. 257.57, subd. 1(b), and Pierce v. Pierce, 374 N.W.2d 450 (Minn.Ct.App.), pet. for rev. denied, (Nov. 14, 1985) in appellant's independent action seeking to set aside a paternity determination. No relief is available to appellant under Minn.R.Civ.P. 60.02(6) and Minn.Stat. Sec. 548.14.
3. Appellant was not entitled to indemnity or contribution for child support from respondent Augustin.
4. Respondent Augustin was not entitled to attorney's fees under Minn.Stat. Sec. 549.21 (1984).
Patrick A. Lowther, Sleepy Eye, for appellant.
David J. Twa, Blue Earth Co. Atty., Paul T. Ostrow, Asst. Blue Earth Co. Atty., Mankato, for Lois A. Clay and Blue Earth County.
Terence M. Dempsey, New Ulm, for Gerald Augustin.
Heard, considered and decided by RANDALL, P.J., and FOLEY and HUSPENI, JJ.
In this consolidated appeal Robert J. Clay seeks (1) review of a trial court order which denied his post decree motion requesting vacation of the decree provision adjudicating paternity of a minor child T.C. and also denied his request for blood tests; and (2) review of summary judgment awarded by the trial court in favor of respondents Blue Earth County and Gerald Augustin and dismissal of proceedings against respondents Lois Ullrich and T.C. in Clay's independent action which sought to vacate the decree provision regarding T.C.'s paternity, declare the nonexistence of a father/son relationship between Clay and T.C., and declare a father/son relationship between Augustin and T.C. On appeal Clay alleges that the trial court erred in not vacating the paternity provision of the decree, that summary judgment was inappropriate because a genuine issue of material fact exists, that he is entitled to seek indemnity or contribution from Augustin, and that Minn.Stat. Sec. 257.57 subd. 1(b) is unconstitutional. Respondent Augustin filed a notice of review and seeks reversal of the trial court's denial to him of attorney's fees under Minn.Stat. Sec. 549.21. He also seeks such fees on appeal. We affirm and deny attorney's fees to Augustin on appeal.
Lois Ullrich and Robert Clay were married July 5, 1977. During the marriage, Ullrich gave birth to a child in July 1978 and to T.C. in July 1981.
The marriage was dissolved on December 30, 1982, pursuant to a marital termination agreement executed by the parties. Only Clay appeared at the final hearing, which proceeded as a default hearing pursuant to the stipulation. Ullrich was unrepresented at that time. Clay was represented by the same attorney who represents him in the present proceedings. Ullrich admittedly knew at the time of the dissolution that Clay was not T.C.'s father. There was also testimony that Clay himself knew before the dissolution that T.C. was not his natural son. Ullrich testified that she told Clay that he was not T.C.'s father. Although Clay now denies having known of his non-paternity for certain at the time of the dissolution, there is evidence in the record to the contrary. An October 12, 1982, letter from a custody investigator to the judge stated "[Clay] is alleging that their youngest child is not his." Also, Clay testified in a June 3, 1985, hearing that at the time the stipulation was signed, he had reason to believe he was not T.C.'s father. When asked the reason for his suspicions Clay replied "Well, [T.C.] looked just like Jerry Augustin." Further, when Clay's attorney asked why Clay took no affirmative action at the time of the dissolution to determine paternity of T.C., Clay replied "Well, for one thing, I couldn't afford it, but then I thought well, why should I be paying for a child that isn't mine?" Finally, in an exchange of documents in the early stages of this appeal on the issue of how extensive the transcript before this court should be, Clay's attorney, arguing for minimal transcript portions only, stated:
First, included in the transcript is the testimony of Lois [Ullrich] at the June 3, 1985 hearing that she told Robert about his nonparentage of [T.C.] before the divorce. Second, the February 18, 1986 order of Judge Litynski, which is included in appellant's appendix * * * refers to an October 12, 1982 letter of Rhonda Hanten indicating that Robert told her that he suspected [T.C.] was not his.
These two items of evidence, candidly disclosed by appellant in his brief, provide a sufficient basis for the appellate court to determine that Robert suspected and may have been aware at the time of dissolution that [T.C.] was not his issue. Respondent should not be permitted to shift to appellant the burden of its failure to comply with RCAP Rule 110.02 subd. 1, particularly as there is sufficient evidence before the court of appeals regarding the issue raised by respondent.
At the time of the dissolution the trial court found, pursuant to the stipulation between the parties and pursuant to Clay's default testimony, that T.C. was the issue of the marriage. The stipulation and decree provided that Clay was to pay $150 monthly child support to Blue Earth County. No appeal was taken from the decree.
In May 1984, pursuant to agreement between the parties, custody of the older minor child was transferred to Clay. He paid no child support after the custody transfer. In October 1985, Blue Earth County brought an action to recover unpaid child support. In March 1986, the trial court ordered appellant to pay back support for T.C. in the sum of $1,725 ($75 per month for 23 months).
Meanwhile, in April 1985, Clay moved the court to order a blood test in order to determine whether he was T.C.'s biological father, to terminate his child support obligation if he were found not to be the father, and to permit him to recover from the county the child support payments he had already made. Subsequently, the Blue Earth County Attorney moved to deny Clay's request and grant the county attorney's fees. In June 1985, Clay amended his motion and requested the additional relief of setting aside the portion of the judgment and decree determining T.C.'s paternity.
On June 18, 1985, the trial court denied Clay's motions for blood tests and vacation of that portion of the decree determining T.C. to be the child of Clay, indicated that a guardian ad litem was to be appointed for T.C. in any future proceedings and denied the county's request for attorney's fees. 1
On December 23, 1985, Clay commenced his independent action seeking a judgment vacating the dissolution decree's provision on T.C.'s parentage, declaring the nonexistence of a father and son relationship between himself and T.C., declaring a father and son relationship between T.C. and respondent Augustin, discharging Clay from the liability for child support with respect to T.C., and awarding damages in the amount of all child support payments made by Clay with respect to T.C., as well as attorney's fees, costs and disbursements. Clay also moved for the appointment of a guardian ad litem for T.C. and for an order requiring Ullrich, Augustin and T.C. to submit to blood tests. In an order dated February 28, 1986, the trial court denied Clay's motions. It held that the issue of T.C.'s paternity was res judicata as to Clay, as it had been in issue at the dissolution proceeding and in Clay's motion for post-dissolution relief.
Prior to the trial court's February 28 order, Clay's attorney arranged for Clay, Ullrich and T.C. to submit to simultaneous blood tests. 2 The results of the blood tests indicated that "challenged father is NOT one of the biological parents of the child in question."
In March 1986, respondent Augustin, who had denied paternity of T.C. in his Answer to Clay's complaint, moved for summary judgment. The trial court granted that motion but denied Augustin's request for attorney's fees. In April 1986, Blue Earth County moved for summary judgment and for attorney's fees. In an order dated April 24, 1986, the court granted this motion and dismissed Blue Earth County as a party defendant in the action. Although Ullrich and T.C. did not move for summary judgment, the court also dismissed the action against them.
Pursuant to Minn.Stat. Sec. 549.21 (1984), respondent Gerald Augustin, in a separate motion, moved for an award of attorney's fees on appeal in the amount of $1,186.00. This court deferred the decision on the motion for fees until consideration of the appeal on the merits.
1. Did the trial court err by denying appellant's motion to vacate the paternity finding in the dissolution decree?
2. Did the trial court err by granting respondents summary judgment under Minn.Stat. Sec. 257.57, subd. 1(b), and Pierce v. Pierce, 374 N.W.2d 450 (Minn.Ct.App.), pet. for rev. denied, (Nov. 14, 1985)? Is relief available to appellant under Minn.R.Civ.P. 60.02(6), and Minn.Stat. Sec. 548.14?
3. Is appellant entitled to seek indemnity or contribution from respondent Gerald Augustin?
4. Is respondent Augustin entitled to attorney's fees under Minn.Stat. Sec. 549.21?
[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 280 days after the marriage is terminated by death, annulment, declaration of invalidity, dissolution...
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