Courtney v. Roggy, WD 70143.

Citation302 S.W.3d 141
Decision Date10 November 2009
Docket NumberNo. WD 70143.,WD 70143.
PartiesBryan COURTNEY and Grace E. Roggy, by her Next Friend, Bryan Courtney, Respondents, v. Gina M. ROGGY and Mark L. Roggy, Appellants.
CourtMissouri Court of Appeals

Craig D. Ritchie and Tiffany D. Tant-Shafer, St. Joseph, MO, for Appellants.

Robert E. Sundell, Maryville, MO, for Respondent.

Before Division III: THOMAS H. NEWTON, Chief Judge, and MARK D. PFEIFFER and Karen KING MITCHELL, Judges.

MARK D. PFEIFFER, Judge.

Appellants Mark Roggy (Mark) and Gina Roggy (Gina), husband and wife, appeal the judgment of the Circuit Court of Nodaway County (trial court) declaring Respondent Bryan Courtney (Bryan) to be the father of Grace Roggy (Grace) and granting Bryan visitation rights and ordering him to pay child support.1 Appellants raise four point on appeal. In their first point, they argue that the trial court erred in declaring Bryan's paternity because either: (a) Bryan's assertion of paternity should fail when compared to Mark's presumption of paternity; or (b) Bryan has waived his right of paternity by waiting too long to assert his rights; or (c) Bryan should be estopped from asserting his paternity rights due to a written document Bryan signed in which he declared that he would not assert his rights of paternity; or (d) that a paternity determination in favor of Bryan was not in the best interest of the child. In their second point, appellants assert that the trial court erred in granting visitation rights to Bryan because they argue the evidence demonstrates that it is not in the best interest of the child. In their third point, appellants claim that the trial court erred in permitting the paternity action to proceed when an adoption proceeding regarding Grace was simultaneously pending in a different jurisdiction. Finally, in their fourth point, appellants contend that the trial court erred in proceeding without appointing a guardian ad litem to represent the child's interests in the hearing below. We affirm.

Statement of Facts

The facts, stated in the light most favorable to the judgment of the trial court, McKown v. McKown, 280 S.W.3d 169, 172 (Mo.App. W.D.2009), are as follows:

In the fall of 2000, three years after her marriage to Mark, Gina began a romantic affair with Bryan. As a direct result of the affair with Bryan, Gina became pregnant and, on May 17, 2001, Grace was born. Mark and Gina were listed on the birth certificate as the parents. However, because Mark had had a vasectomy prior to Grace's conception, he knew that Grace was not his biological daughter. In fact, Mark stipulated at trial and on appeal that Grace is not his biological daughter, and Mark further stipulated that, conversely, Bryan is Grace's biological father.

Mark was not aware of the affair between Gina and Bryan during Gina's pregnancy. He believed that Gina's pregnancy was the result of a rape that Gina had told him she suffered on September 9, 2000. During Gina's pregnancy, Mark and Gina agreed to raise the child as if the child were, in fact, a biological product of their marriage. Mark later learned of Gina's affair with Bryan but remains married to Gina and remains desirous of serving as Grace's "Dad."2

At the time of her pregnancy, Gina told Bryan that there was a 50 percent chance he was the father of the baby she was carrying to term. Shortly after Grace's birth, Bryan and Gina participated in a DNA test via buccal cheek swab to determine paternity. However, unbeknownst to Bryan, Gina falsified the results of the DNA test by providing a buccal cheek swab sample from her other daughter, Lauren.3 Upon receiving the erroneous results of the first buccal swab DNA test establishing that Grace could not be his child, Bryan urged Gina to repair her relationship with Mark and had little contact with her until 2003. At some point between May of 2001 and early 2003, Gina expressed to Bryan that she believed the test results were incorrect and that Grace was, in fact, his daughter. However, she did not reveal her deception with the tissue sample or press for another DNA test. In January of 2003, Gina brought Grace by Bryan's office. Struck by the strong physical resemblance, Bryan participated in another DNA test. On February 26, 2003, the DNA test results of this second DNA test reflected a 99.99% statistical probability that Bryan was Grace's father. In April of 2003, Gina obtained Bryan's consent to sign a document she prepared stating that he would not assert his parental rights. Bryan testified that Gina required him to sign this document as a condition of Bryan being permitted to see Grace and spend time with her.

After the document was signed, Gina and Bryan resumed a romantic relationship from approximately early May of 2003 until November of 2005. As long as the romantic relationship between Bryan and Gina was ongoing, Gina arranged for Bryan to have frequent contacts with Grace. These father-daughter contacts included trips with Gina and Grace out of town, including some holidays. Bryan told his family and colleagues that he was Grace's father. However, at Gina's request, Bryan did not attempt to explain to Grace that he was her father or communicate to Gina's extended family that he was, in fact, Grace's father. Not so coincidentally, when Bryan ended his romantic relationship with Gina, Gina prohibited any further contacts between Grace and Bryan. Bryan made numerous failed attempts to convince Gina to permit a continued relationship between he and Grace, all to no avail.

Consequently, on February 16, 2007, Bryan filed a petition seeking a declaration of his paternity of Grace. An evidentiary hearing spanning three days of testimony and the presentation of other evidence began on May 23, 2008, continued on May 29, 2008, and concluded on June 24, 2008. The trial court heard extensive testimony from Mark, Gina, and Bryan. The trial court also heard testimony from Dr. Marcia Meyer, a licensed professional counselor. Dr. Meyer testified that Grace suffered from separation anxiety but that there was no way of determining the long-term effects of re-introducing Bryan to Grace as her father. While she noted that there could potentially be serious negative consequences to Grace learning that Bryan was her father at this stage of her childhood development, Dr. Meyer also opined that Bryan's re-introduction into Grace's life could also potentially be a positive experience for Grace. The court entered its judgment on August 18, 2008. The judgment declared Bryan to be Grace's father but awarded Gina sole legal and physical custody. The judgment also required Bryan to pay child support and provided visitation rights to Bryan. This appeal followed.

We review the judgment of the trial court under the standard of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Id. The trial court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. We not only review the facts in the light most favorable to the trial court, we also review the inferences drawn from those facts in the same manner. Id.

In their first point on appeal, appellants proffer four arguments for the assertion that the trial court erred, based on the premise that Bryan was estopped or otherwise prevented from asserting paternity of Grace. They argue: (1) Mark's presumption of paternity should control over Bryan's presumption of paternity; (2) Establishing paternity in favor of Bryan is not in the child's best interests; (3) Appellants Mark and Gina detrimentally relied upon Bryan's initial agreement not to petition for paternity; (4) Bryan waited too long to assert his rights and should have been deemed to have waived his right to establish paternity or equitably declared to be a non-parent due to the length of time in which Bryan failed to assert his paternity.

Statutory Construction of § 210.822.2

Section 210.822 of the Revised Statutes of Missouri4 states, in pertinent part 1. A man shall be presumed to be the natural father of a child if:

1) He and the child's natural mother are or have been married to each other and the child is born during the marriage ...

....

4) An expert concludes that the blood tests show that the alleged parent is not excluded and that the probability of paternity is ninety-eight percent or higher ...

2. A presumption pursuant to this section may be rebutted in an appropriate action only by clear and convincing evidence ... If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls.

(Emphasis added.)

In interpreting statutes, "`[t]he primary rule of statutory construction requires this Court to ascertain the intent of the legislature by considering the plain and ordinary meaning of the words used in the statute.'" State ex rel. Womack v. Rolf, 173 S.W.3d 634, 638 (Mo. banc 2005) (quoting Jones v. Dir. of Revenue, 832 S.W.2d 516, 517 (Mo. banc 1992)). "`[E]ach word, clause, sentence and section of a statute should be given meaning.'" Id. (quoting Hadlock v. Dir. of Revenue, 860 S.W.2d 335, 337 (Mo. banc 1993)). We reject an interpretation of a statute that will cause us to ignore the language of the statute. Id.

Appellants correctly argue in their brief that the plain language of section 210.822.2 dictates that courts follow a two-step process in applying the statute. Step One is to ascertain whether there is "clear and convincing" evidence to rebut a presumption that a presumed natural father is, in fact, the natural father. Step Two only occurs when, after Step One, there remain competing presumptions that conflict with one another. If Step One fails to eliminate all but one presumed father, the...

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