Godin v. Godin

• Citation: 725 A.2d 904
• Decision Date: 24 December 1998
• Docket Number: No. 97-147.,97-147.
• Parties: Mark A. GODIN v. Rita GODIN.
• Court: United States State Supreme Court of Vermont

725 A.2d 904

Mark A. GODIN v. Rita GODIN.

No. 97-147.

Supreme Court of Vermont.

December 24, 1998.

Timothy J. Ryan of Brown, Cahill, Gawne & Miller, St. Albans, for Plaintiff-Appellant.

Rita Godin, pro se, Enosburg, Defendant-Appellee.

Present: AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

MORSE, J.

The question presented is whether, six years after a final divorce decree and adjudication of paternity, a father may disavow a child born during the marriage and presumed for fourteen years to have been his. We hold that he may not.

The family court denied plaintiff Mark Godin's motion to require genetic testing to determine the paternity of Christina, the child born while he was married to his former wife Rita Godin, and dismissed his complaint seeking to set aside a child support order. Plaintiff contends the court erred in concluding that the adjudication of paternity implicit in the final divorce decree was res judicata and barred relitigation. We affirm.¹

The material facts are largely undisputed. Mother and plaintiff shared a sexually intimate relationship in Vermont during the summer of 1981, while plaintiff was on leave from military service. On July 15, plaintiff returned to his station in South Carolina. Subsequently, mother told plaintiff she was pregnant when he returned to Vermont in November, and they were married in December 1981. Mother gave birth to Christina on May 18, 1982. Mother filed for divorce in 1989. In her complaint she stated that there was one child, Christina, born of the marriage. A final uncontested divorce hearing was held in April 1990, at which both parties were present. The court adopted the parties' stipulation, and a final order was issued in May 1990. Under the terms of the final divorce order, mother was awarded custody and plaintiff was required to pay child support.

In the Fall of 1996, approximately six years after the divorce became final, rumors within his family led plaintiff to suspect that he was not Christina's biological father. He then reconsidered his earlier relationship with mother and concluded he must not be the father because ten months had elapsed between Christina's alleged conception and her birth. As a result, he filed a pro se motion for genetic testing with the family court. The court denied the motion, ruling that the test should have been requested before the divorce became final. Plaintiff then retained counsel and filed a complaint seeking relief from judgment based on fraud upon the court. See V.R.C.P. 60(b). As part of this action, plaintiff requested that the court order genetic testing and vacate those provisions of the divorce order referring to him as the father of Christina and requiring him to pay child support.

A hearing was held in March 1997. Plaintiff testified that until the Fall of 1996, he believed Christina was his biological child and treated her as such. He explained that he questioned his paternity only after Christina began asking him if he was her biological father. Mother testified that she was sexually intimate with another man prior to the marriage while plaintiff was in South Carolina. She also testified that when she informed plaintiff that she was pregnant, she "never stated who was the father and who wasn't." In addition, she denied ever telling any of plaintiff's relatives that plaintiff was not Christina's biological father. Finally, she stated that although she was not opposed to genetic testing, she was concerned about the impact such testing would have on her then fifteen-year-old daughter who "has always thought that [plaintiff] is her father."

The court appointed a guardian ad litem to represent Christina's interests, and reset the hearing for April 1, 1997. At the April 1 hearing, plaintiff objected to the intended testimony of the guardian ad litem on grounds that her testimony would relate hearsay evidence and would introduce an irrelevant subject matter, namely, Christina's feelings about genetic testing. The court declined to hear testimony from the guardian ad litem and held that plaintiff's request for genetic testing was time-barred. The court reasoned that plaintiff had an opportunity to contest paternity in the original divorce proceeding or on appeal, and that his failure to do so precluded him from challenging paternity at a later date. Accordingly, the court concluded that plaintiff's motion to modify child support, and his independent action of fraud upon the court, were moot. This appeal followed.

Plaintiff contends that mother perpetrated a fraud upon the court during the divorce proceedings by alleging in her complaint that Christina was biologically her husband's and, because of such fraud, the trial court should set aside any obligation to pay child support.

We agree with the trial court that both of plaintiff's claims involve the same underlying issue: the conclusiveness of paternity findings and implications in a divorce judgment. We have previously addressed this issue. See Lerman v. Lerman, 148 Vt. 629, 629, 528 A.2d 1121, 1122 (1987) (mem.). In Lerman, we held that a former husband was not entitled to court-ordered genetic testing approximately ten years after his divorce became final. See id. We reasoned that where no issue concerning paternity was raised during a divorce proceeding and no appeal was taken from the divorce action contesting paternity, the doctrine of res judicata precluded a relitigation of paternity. See id. Plaintiff's appeal implicitly requires us to reconsider our holding in Lerman. V.R.C.P. 60(b) governs the granting of relief from judgment. Rule 60 is "substantially identical" to its federal counterpart, Fed. R.Civ.P. 60. See Reporter's Notes, V.R.C.P. 60. Under this rule, a court may grant relief from a final judgment for "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)" or for "fraud ... misrepresentation, or other misconduct of an adverse party." V.R.C.P. 60(b)(2), (3). Plaintiff's claim seems to be premised on two facts: mother's alleged ten-month gestation period, and another sexual partner. This "newly discovered evidence" and mother's failure to disclose it before their marriage constitutes the alleged fraud. As expressly stated in the rule, however, a motion for relief from judgment based on either of these grounds must be made within one year after the judgment was entered. Plaintiff filed his motion for relief from judgment approximately six years after the date of the judgment. Thus, he was not entitled to relief under Rule 60(b)(2) or (3).

Apparently realizing that his claim is time-barred and thus not cognizable under the above provisions, plaintiff contends that these subsections are not controlling. Instead, he contends that mother's alleged fraud was committed "upon the court" and therefore is not subject to the same one year statute of limitations. Based on this characterization, plaintiff's claim is governed by the catch-all provision of Rule 60(b)(6), which provides that relief may be granted for "any other reason justifying relief from the operation of the judgment." The rule explicitly provides that motions based on the catch-all provision "shall be made within a reasonable time." V.R.C.P. 60(b). The rule also states that there is no limit to "the power of a court to entertain an independent action to relieve a party from a judgment ... or to set aside a judgment for fraud upon the court." Id.

As we explained in Levinsky v. State, 146 Vt. 316, 318, 503 A.2d 534, 536 (1985), "the independent action clause in Rule 60(b) simply preserves the historical authority of the courts of equity to reform judgments in special circumstances." (emphasis added) (internal quotation marks omitted). "However, this catch-all provision is available only when a ground justifying relief is not encompassed within any of the first five classes of the rule." Id. at 317, 503 A.2d at 536 (internal quotation marks omitted).

The first issue, then, is whether the fraud alleged here may properly be characterized as a fraud upon the court and therefore exempt from the one-year statute of limitations. We conclude that to the extent mother's conduct was fraudulent, if at all, it constituted fraud upon plaintiff, not upon the court. The seminal decision in this area is Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944). There, an attorney for the Hartford-Empire Glass Company fabricated an article, claimed it was authored by a former president of the Glass Workers' Union, and later used the falsified article in a patent case before an appellate court to receive a favorable judgment. The United States Supreme Court characterized the fraud as "a wrong against the institutions set up to protect and safeguard the public," id. at 246, 64 S.Ct. 997, distinguishing it from the "case of a judgment obtained with the aid of a witness who, on the basis of after-discovered evidence, is believed possibly to have been guilty of perjury." Id. at 245, 64 S.Ct. 997. The Court described the fraud upon the court by the attorney as "manifestly unconscionable," id. at 244-45, 64 S.Ct. 997 (internal quotation marks omitted), and "a deliberately planned and carefully executed scheme to defraud not only the Patent Office but the Circuit Court of Appeals." Id. at 245-46, 64 S.Ct. 997. This "tampering with the administration of justice," the Court concluded, justified its exercise of equitable power to set aside the "fraudulently begotten judgment[ ]." Id.

Since Hazel-Atlas, courts and commentators alike have observed that the fraud-on-the-court doctrine must be narrowly applied, or it would become indistinguishable from ordinary fraud, and undermine the important policy favoring finality of judgments. "If fraud on the court were to be given a broad interpretation that encompassed virtually all forms of fraudulent misconduct between the parties,...