Dnw v. State, Dept. of Family Services, C-06-9.

• Decision Date: 03 April 2007
• Docket Number: No. C-06-9.,C-06-9.
• Citation: 2007 WY 54,154 P.3d 990
• Parties: DNW, Appellant (Respondent), v. State of Wyoming, DEPARTMENT OF FAMILY SERVICES; and State of Wyoming ex rel., NSM, Minor Child, Appellees (Petitioners), and NJM, Appellee (Respondent).
• Court: Wyoming Supreme Court

154 P.3d 990

2007 WY 54

DNW, Appellant (Respondent), v. State of Wyoming, DEPARTMENT OF FAMILY SERVICES; and State of Wyoming ex rel., NSM, Minor Child, Appellees (Petitioners), and NJM, Appellee (Respondent).

No. C-06-9.

Supreme Court of Wyoming.

April 3, 2007.

Representing Appellant: George L. Simonton of Cody, Wyoming.

Representing Appellee State of Wyoming, Department of Family Services: Patrick J. Crank, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Dan Wilde, Senior Assistant Attorney General; and Ellen Rutledge, Assistant Attorney General. Argument by Ms. Rutledge.

Representing Appellee NJM: No Appearance.

Guardian Ad Litem: Chris Edwards of Simpson, Kepler & Edwards, LLC the Cody, Wyoming Division of Burg Simpson Eldredge Hersh & Jardine, P.C.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

VOIGT, Chief Justice.

[¶ 1] This is an appeal from a Judgment and Order of Paternity in which the district court adjudicated the biological father of a child to be his legal father. We reverse because the mother's former husband had already been determined to be, and remained, the child's legal father.

ISSUE

[¶ 2] Under the circumstances of this case, did the divorce between NJM and MDG disestablish MDG's status as NSM's legal father?¹

FACTS

[¶ 3] NJM gave birth to NSM on December 1, 1996, at a time that NJM was unmarried. No father was listed on NSM's birth certificate. On January 8, 1998, NJM married MDG. NJM and NSM lived with MDG, and MDG held himself out to be NSM's father. In addition, NJM wrote to Wyoming Vital Records Services on January 7, 1999, imparting the following information:

This letter is regarding my sons birth certificate, the father and myself was not married at the time of the birth so his name was not placed on the certificate, and the child did not receive his fathers last name. I would like to do this now.

The child's full name as it appears on the birth certificate is as follows.

1. [NSM]

2. Birth date December 1, 1996

3. Birth place. Powell Hospital, Powell WY. Park County.

I would like to change his last name on the certificate so his name reads as follows.

1. [NSG].

Here is the fathers name and the place of marriage.

1. [MDG].

2. Birth date, May 12, 1963

3. Birth place, Powell WY. Park County

4. We were married on January 9, 1998

5. We were married in Powell WY., Park County

(Quoted verbatim; emphasis added.)

[¶ 4] Following this letter, NJM and MDG each obtained from Wyoming's Vital Records Services, and each executed and filed, a document entitled "State of Wyoming Affidavit Acknowledging Paternity and Statement Determining Child's Surname." In his affidavit, MDG recited that, "I hereby acknowledge that I am the natural father of the child named above, and request that my name be entered on the birth certificate as the father of this child." (Emphasis added.) Both NJM and MDG acknowledged receipt of "written and oral notice of the legal rights and consequences resulting from" the affidavit. The form affidavit contained, inter alia, the following "warnings":

1. The purpose of the form is to establish legal paternity when the parents of a child are not married.

2. Either parent may be court ordered to pay child support for the child.

3. A correctly completed affidavit has the same effect as a court order establishing paternity.

4. Either party may bring a court order to rescind the affidavit within sixty days of the date it is signed, but thereafter the affidavit may be challenged in very limited circumstances.

Upon the filing of these affidavits, NSM's birth certificate was amended to reflect MDG as his father, and to change his name to NSG.

[¶ 5] MDG, NJM, and NSM lived together as a family until NJM filed for divorce on January 16, 2002. In her divorce Complaint, NJM averred that MDG was NSM's "presumed" father under Wyo. Stat. Ann. § 14-2-102(a)(iv) (LexisNexis 2001) because MDG had received NSM into his home and openly held him out as his natural child, but did not mention the affidavits that had been signed and filed by MDG and NJM. On August 29, 2002, however, the parties entered into a Stipulation and Property Settlement Agreement that stated, to the contrary, as follows:

3. As stated above, [NJM] admits that [MDG] is not the father of [NSM] even though he is designated as the child's father on [NSM's] Birth Certificate issued by Vital Records Services, Department of Health and Medical Services State of Wyoming. Both parties acknowledge that [NSM's] original Birth Certificate is incorrect and [MDG's] name needs to be removed as [NSM's] father from the original Birth Certificate and a new Birth Certificate filed leaving the name of [NSM's] father blank. [NJM] and [MDG] agree to cooperate and sign whatever documents are necessary in order to make this change on [MSN's] Birth Certificate. [NJM] shall be responsible for preparation of all necessary documents to obtain a new birth certificate and for all associated costs. Additionally, as [MDG] is not the natural or presumed father of [NSM], [MDG] is not responsible for any support of [NSM].

(Emphasis added.)

[¶ 6] This Stipulation and Property Settlement Agreement was incorporated into a Judgment and Decree of Divorce that was filed on October 21, 2002. The decree contained the following as one of its findings:

4. Even though [NJM] alleged in her Complaint that the parties had one minor child, [NSM], born December 1, 1996, she now admits that [MDG] is neither the natural or presumed father of the child. Before the parties marriage [NSM] was known as [NSM] and his surname of [M] should now be restored.

Based upon that finding, the court ordered as follows:

3. The Birth Certificate filed for [NSM], born December 1, 1996, is incorrect and [MDG's] name needs to be removed as the child's father from the Birth Certificate previously issued by the Vital Records Services, Department of Health and Medical Services State of Wyoming. A new Birth Certificate for [NSM] shall then be filed leaving the name of his father blank. The new Birth Certificate shall also reflect that the child's surname will again be [M] and after this Decree is entered, the child shall be known as [NSM].

[¶ 7] Consistent with that decree, the State of Wyoming issued [NSM] a new birth certificate on November 22, 2002, with no one named as father. Within four months, NJM had applied for assistance, and the State of Wyoming filed a Petition to Establish Paternity and Support, naming DNW as NSM's father. Genetic testing proved that DNW was, indeed, NSM's biological father. In the paternity action, the State, DNW, and NJM all stipulated that DNW and NJM had had a "one night's stand," that resulted in NJM's pregnancy, that DNW had never been told of NSM's birth, that DNW had never had any relationship or interaction with NSM, and that NSM had not known that DNW, rather than MDG, was his biological father. DNW contested the paternity action based on both the statutory affidavit of paternity and the statutory presumption of paternity resulting from MDG's living with and holding out NSM to be his child. The district court ruled against DNW, primarily upon its reading of GDK v. State, Dep't of Family Services, 2004 WY 78, 92 P.3d 834 (Wyo.2004), and that case's emphasis upon genetic testing and the best interest of the child.

STANDARD OF REVIEW

[¶ 8] The facts of this case are not in dispute. The question before the Court is fundamentally a question of statutory construction, which is a question of law reviewed de novo. Hoke v. Motel 6 Jackson, 2006 WY 38, ¶ 6, 131 P.3d 369, 373 (Wyo.2006). Where, as here, the statute at issue is unambiguous, we ascertain legislative intent by giving effect to the plain and ordinary meaning of the words used. Id.

Wyo. Stat. Ann. § 14-2-102 (LexisNexis 2001)

[¶ 9] The State filed this paternity action on March 7, 2003. The Wyoming Parentage Act was amended in 2003, with the proviso that actions commenced before July 1, 2003 were to be governed by the law in effect at the time proceedings were commenced. 2003 Wyo. Sess. Laws 230. The pertinent statute in effect at that time was Wyo. Stat. Ann. § 14-2-102 (LexisNexis 2001), the full text of which is as follows, with emphasis added as appropriate:

(a) A man is presumed to be the natural father of a child if:

(i) 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 (300) days after the marriage is terminated by death, annulment or divorce or after a decree of separation is entered by a court; or

(ii) Before the child's birth, he and the child's natural mother 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:

(A) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage or within three hundred (300) days after its termination by death, annulment or divorce; or

(B) If the attempted marriage is invalid without a court order, the child is born within three hundred (300) days after the termination of cohabitation; or

(iii) After the child's birth, he and the child's natural mother 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 he is obligated to support the child under a written voluntary promise or by court order; or

(iv) While the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child.

(b) A presumption under subsection (a) of this section may be rebutted in an appropriate action only by clear and convincing evidence. If two (2) or more presumptions under subsection (a) of this section arise which conflict with each other, the presumption which on the facts is founded on the weightier...