Ellison v. Walter ex rel. Walter

Decision Date24 June 1992
Docket NumberNo. 91-275,91-275
PartiesBarton ELLISON, Appellant (Respondent), v. Connie WALTER, ex rel. Rachele I. WALTER, Appellees (Petitioners).
CourtWyoming Supreme Court

Bart D. Ellison, pro se.

Frank D. Peasley and Kari Jo Gray of Gray & Associates, Douglas, for appellees.

Before URBIGKIT, C.J., THOMAS, MACY and GOLDEN, JJ., and BROWN, J., Retired.

GOLDEN, Justice.

Barton D. Ellison (Ellison) appeals from a district court's judgment and order which, among other things, adjudged him to be the biological father of Rachele I. Walter (Rachele), a minor child born July 15, 1976; awarded judgment against him in the amount of $9,150 for back support from the date of Rachele's birth; and ordered him to make future child support payments of $50 per month until Rachele reaches the age of majority or is otherwise emancipated. We will affirm.

ISSUES

The primary issues raised for our consideration are:

(1) Whether the evidence was sufficient to support a finding of paternity.

(2) Whether the petition to establish paternity was barred by the statute of limitations found in Wyo.Stat. § 14-2-104(a)(ii) or by the equitable doctrine of laches.

(3) Whether child support payments may be retroactively awarded to the date of the child's birth.

FACTS

Ellison met Connie Walter (Walter) at a bar in Miles City, Montana, in August of 1975. Ellison and Walter dated through October of 1975, during which time they engaged in sexual relations. Walter first believed that she was pregnant in October of 1975, and subsequently informed Ellison of her suspected state. Ellison, who happened to be married, corresponded with Walter at various times during her pregnancy. Through the correspondence, Ellison generally acknowledged that he was the father of the expected child and expressed a desire to divorce his wife to be with Walter. Ellison and Walter apparently had contact only once following the birth of the child.

Rachele I. Walter (Rachele) was born in North Dakota on July 15, 1976. Walter and her daughter, Rachele, received public assistance from the state of North Dakota from July 1976 through April of 1978. As a condition of receiving public assistance, Walter assigned all her rights to support of Rachele to the state of North Dakota. When Walter reapplied for public assistance in 1985, North Dakota initiated a paternity/support action against Ellison, a Wyoming resident, pursuant to its Revised Uniform Reciprocal Enforcement of Support Act. The paternity/support action was duly certified to the district court of Sweetwater County, Wyoming, in October of 1985.

The paternity/support action proceeded slowly following its certification to the Wyoming district court. The procedural history of the case from October of 1985 to February of 1990 is largely irrelevant and does not merit a full recital. Suffice it to state that Ellison was notified of the proceedings against him, that he denied paternity, and that he underwent a human leukocyte antigen (HLA) genetic test which established In February of 1990, an informal hearing was held at which Ellison again denied paternity and at which he requested a court appointed attorney. The district court subsequently appointed Ellison an attorney, and the parties prepared for what appeared to be an inevitable jury trial on the issue of paternity. Before trial, however, the parties stipulated to resolve the paternity issue with an additional genetic test. The stipulation, which was approved by the district court, provided that Ellison would be deemed the natural father of Rachele if a deoxyribonucleic acid (DNA) genetic test failed to exclude him as a possible father and established a probability of paternity at 97 percent or greater. A DNA genetic test was then performed which failed to exclude Ellison as a possible father and which established a probability of paternity at 99.98 percent. Pursuant to the terms of the stipulation, the district court entered an order in May of 1991 adjudging Ellison to be the biological father of Rachele.

the probability of his paternity of Rachele at 99.9174 percent.

Following the district court's paternity order, trial was set for September 23, 1991, on the remaining issues of support, visitation, and custody. Ellison "fired" his attorney before trial and proceeded to represent himself. A trial was then held on the issue of support, as Ellison did not request custody of or visitation rights with Rachele. After the trial, the district court entered an order which, among other things, confirmed that Ellison was the biological father of Rachele; awarded judgment against Ellison in the amount of $9,150 for back support from the date of Rachele's birth; and ordered Ellison to make future child support payments of $50 per month until Rachele reaches the age of majority or is otherwise emancipated. This appeal followed.

DISCUSSION
1. Sufficiency of the Evidence

Ellison first contends that the evidence was insufficient to support the district court's determination that he is the biological father of Rachele. Ellison asserts that, due to a vasectomy performed in the spring of 1975, he was sterile at the time of Rachele's conception. We find Ellison's contention to be without merit.

When faced with a sufficiency of the evidence question, this court assumes all evidence of the successful party is true, leaves out entirely consideration of the unsuccessful party's evidence in conflict therewith, and gives the evidence of the successful party every reasonable and favorable inference. Burns Rathole, Inc. v. Inter-Mountain Agency, Inc., 829 P.2d 823, 825 (Wyo.1992). Applying this standard of review, we find no error in the district court's determination that Ellison is the biological father of Rachele. The evidence upon which the district court based its finding of paternity was both substantial and persuasive. It included:

1) HLA and DNA genetic tests which established the probability of Ellison's paternity at 99.9174 and 99.98 percent, respectively.

2) A stipulation entered into by Ellison whereby he agreed to be deemed the biological father of Rachele in the event that a DNA genetic test established a probability of paternity at 97 percent or greater.

3) Several letters written by Ellison to Walter before the birth of Rachele wherein Ellison acknowledged paternity.

4) Sworn testimony of Walter that she had sexual relations with Ellison and no one else at the time of conception.

2. Statute of Limitations or Laches

Ellison also contends that the trial court erred by failing to dismiss the paternity/support action as barred by the statute of limitations contained in Wyo.Stat. § 14-2-104(a)(ii) (Supp.1991). Specifically, Ellison asserts that "[t]his Court has made a big mistake as W.S. 14-2-104 states that action must be brought within a reasonable time after obtaining knowledge but no later than five (5) years after the birth of said child." We disagree.

Section 14-2-104(a)(ii) provides, and has provided at all times relevant to this paternity/support action, as follows:

(a) A child, his natural mother or a man presumed to be his father * * * may bring action:

(ii) For the purpose of declaring the nonexistence of a father and child relationship presumed under W.S. 14-2-102(a)(i), (ii), or (iii) only if the action is brought within a reasonable time after obtaining knowledge of relevant facts, but in no event later than five (5) years after the child's birth.

Section 14-2-104(a)(ii) is not applicable to the facts of this case. It applies to bar only actions to establish the nonexistence of paternity where there is a presumed father under the provisions of § 14-2-102(a)(i), (ii), or (iii). Ellison is not a presumed father under § 14-2-102(a)(i), (ii), or (iii), nor was the paternity/support action initiated to establish the nonexistence of paternity. Rather, this case was brought by North Dakota on behalf of Rachele to establish paternity for the purpose of obtaining a support order. The facts of this case are governed by § 14-2-104(c), which gives a state standing to bring a paternity/support action on behalf of a child with no presumed father within the time frame set forth in § 14-2-105(a). Section 14-2-105(a) provides, and has provided at all times relevant to this paternity/support action, that such actions must be initiated within three years after the child reaches the age of majority. 1 The present proceedings, which were initiated when Rachele was nine years old, fall well within the time frame established by § 14-2-105(a).

Ellison contends alternatively that the district court erred by not employing the equitable doctrine of laches to bar the paternity/support action. Ellison asserts that the nine-year delay between Rachele's birth and the initiation of these proceedings prejudiced his defense of sterility. Specifically, Ellison claims that he could not obtain records to verify the date of his vasectomy because they were destroyed after five years according to hospital policy. We find no merit to Ellison's laches argument. Nothing in the record substantiates Ellison's assertion that hospital policy is to destroy vasectomy records after five years or that Ellison's records were in fact destroyed. Moreover, evidence of paternity contained in the record contradicts Ellison's sterility claim. Particularly noteworthy is Ellison's own handwritten letter in which it is stated "when you told me about the baby I felt bad. So bad I had an operation to make me impotent, called it visectomy [sic]."

3. Retroactive Support

Ellison's final contention is that the district court erred by awarding back support to the date of Rachele's birth. We find no error in the district court's order.

In Vigil v. Tafoya, 600 P.2d 721 (Wyo.1979), this court was faced with determining whether the statute of limitations contained in the Uniform Parentage Act of 1977 (UPA) could be applied retroactively to children born before the effective date of the UPA. In the...

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