In re Gendron

• Decision Date: 20 May 2008
• Docket Number: No. 2007–844.,2007–844.
• Citation: In re Gendron, 950 A.2d 151, 157 N.H. 314 (N.H. 2008)
• Court: New Hampshire Supreme Court
• Parties: In the MATTER OF Kevin GENDRON and Jody Plaistek.

157 N.H. 314

950 A.2d 151

In the MATTER OF Kevin GENDRON and Jody Plaistek.

No. 2007–844.

Supreme Court of New Hampshire.

Argued: April 10, 2008.

Opinion Issued: May 20, 2008.

Phillips, Gerstein & Channen, L.L.P., of Haverhill, Massachusetts, (Lynne A. Saben on the brief and orally), for the petitioner.

Basbanes & Chenelle, of Groton, Massachusetts, (Kevin A. Chenelle on the brief and orally), for the respondent.

DUGGAN, J.

The petitioner and putative father, Kevin Gendron, brings this interlocutory appeal from a ruling of the Derry Family Division(Sadler, J.) ordering him to submit to genetic marker testing.SeeRSA 522:1(2007).We reverse and remand.

The following facts are taken from the interlocutory appeal statement and its appendices.The respondent-mother, Jody Plaistek, gave birth to a child on December 28, 2004, in Lawrence, Massachusetts.At the time of the child's birth, the parties were not married, but resided together in Derry, New Hampshire.The child has the father's last name.

Two days after the child's birth, both parties signed his birth certificate.They also signed a Voluntary Acknowledgement of Parentage (acknowledgement), in which they"acknowledge[d] that [they] are the biological parents of" the child.The acknowledgement specifically names Kevin Gendron as the child's father.Both parties affirmed that they"voluntarily sign[ed] th[e] acknowledgment to establish the child's paternity."In so doing, they"underst [oo]d that th[e] acknowledgement w[ould] be filed with the child's birth certificate[;] the names of both par[ties] w[ould] be on the child's birth certificate"; and the acknowledgment constituted "a legal document with the same binding effect as a court judgment of paternity."The parties further indicated that they understood "the process for rescinding (canceling) th[e] acknowledgement of paternity."Pursuant to Massachusetts law, the birth certificate and acknowledgement were subsequently filed in Lawrence City Hall.SeeMass. Gen. Laws ch. 209C, §§ 2, 11(a)(2007).

The parties lived together until June 2007.At that time, the father obtained a domestic violence order against the mother.He also filed a parenting petition seeking custody of the child.In response, the mother asserted that the father is not the child's biological father, and requested that the court order DNA testing to establish paternity.The mother, however, did not dispute that the child has developed a paternal relationship with the father.

On August 31, 2007, the court held a temporary hearing on the parenting petition.At the hearing, the father submitted the child's birth certificate, but not the acknowledgement.The father later located the acknowledgment, and, on September 6, 2007, submitted it to the court in a post-hearing motion.On September 17, 2007, the trial court ordered the father to submit to genetic marker testing.

On September 27, 2007, the father moved for reconsideration.He argued that paternity was established in Massachusetts when the parties signed and filed the acknowledgement, and that New Hampshire was required to give full faith and credit to that determination of paternity.SeeRSA 168–A:2, II (Supp.2007).On October 3, 2007, the trial court denied the father's post-hearing motion to accept the acknowledgement because "[p]aternity testing [had] already [been] ordered."On October 31, 2007, the trial court denied the father's motion for reconsideration, explaining:

While the court finds that the [acknowledgement] must be given some weight, the court finds that the purpose of the Parenting statute must also be given weight.The purpose of the statute, NHRSA 461–A is about the best interests of the child.The best interest of [the child] is to have this matter resolved as quickly as possible so the parties can try to move forward whatever the results might be.[The child] is the one who deserves closure on this issue.He needs to know who his parents are and not be plagued with the lingering issue between [the parties] which will inevitably be an undercurrent of their relationship for years to come.

On appeal, the father argues that paternity was established in Massachusetts, and that New Hampshire must afford full faith and credit to that determination.He asserts that the doctrine of res judicata now bars the mother from challenging paternity.Alternatively, the father contends that the mother should be equitably estopped from contesting paternity.

The mother first argues that we cannot consider the acknowledgement because the father did not submit it at the temporary hearing and the trial court did not allow its late submission.Second, assuming the acknowledgement is part of the record, the mother claims that its signing did not produce a final judgment, but created only a rebuttable presumption of paternity, and that New Hampshire law applies in determining whether and to what extent that presumption may be challenged.The mother asserts that she may challenge that presumption pursuant to RSA 5–C:28, III (Supp.2007), which allows a court of competent jurisdiction to decide, after the sixty-day statutory rescission period, a challenge to an affidavit of paternity filed in New Hampshire.See alsoRSA 5–C:24 (Supp.2007).Thus, because she challenged the acknowledgement and, specifically, whether the father is the child's natural father, the mother maintains that the trial court properly ordered genetic marker testing.

We first reject the mother's contention that the acknowledgement is not part of the record.Although the trial court initially denied the father's post-hearing motion to accept the acknowledgement, in ruling upon the father's later motion for reconsideration, the trial court not only considered the acknowledgement, but gave it "some weight."Accordingly, we will consider the acknowledgment in resolving this appeal.SeeSup.Ct. R. 13(explaining that the record on appeal shall include all "papers and exhibits filed and considered in the proceedings in the trial court"(emphasis added)).

We now address whether the trial court properly ordered genetic marker testing.Resolution of this issue requires us to apply RSA 168–A:2 and RSA 522:1.The application of a statute presents a question of law, which we review de novo.ElderTrust of Fla. v. Town of Epsom,154 N.H. 693, 696, 919 A.2d 776(2007).

RSA 168–A:2, II provides: "The courts of this state shall give full faith and credit to a determination of paternity made by another state, whether established by court or administrative order, through voluntary acknowledgement of paternity, or by operation of another state's law."(Emphases added.)If paternity has been established in that manner, the father's liabilities, including necessary support, may be enforced.RSA 168–A:2, III.

Here, both parties voluntarily signed the acknowledgement within days of the child's birth.Under Massachusetts law,

Unless either signatory rescinds the acknowledgement within 60 days of the date of signing ..., the acknowledgment shall establish paternity as of the date it has been signed by such putative father and mother and shall have the same force and effect as a judgment of paternity, subject to challenge within one year only on the basis of fraud, duress or material mistake of fact....

Mass. Gen. Laws ch. 209C, § 11(a)(emphases added).To rescind the acknowledgment, a party must, "within 60 days of signing the acknowledgment, file a petition in the probate and family court in the county in which the child and one of the parents resides," but "[i]f neither of the parents lives in the same county as the child, then such complaint shall be filed in the county where the child lives."Id.;cf.R.L.H. v. T.E.L.,401 Mass. 101, 514 N.E.2d 855, 855–56(1987)(interpreting similar statutory language in same chapter as pertaining to venue, not jurisdiction).

If the acknowledgement has not been challenged in accordance with the foregoing provisions, "no judicial proceeding shall be required or permitted to ratify [the] acknowledgement," and the acknowledgement "shall be recognized as a sufficient basis for seeking an order of support, visitation or custody with respect to the child without further proceedings to establish paternity. "Mass. Gen. Laws ch. 209C, § 11(a)(emphases added).The Massachusetts legislature's "clear intention [in enacting this statute was] to limit the ability of a voluntary signatory to a paternity agreement to challenge the validity of that agreement at some later time."Paternity of Cheryl,434 Mass. 23, 746 N.E.2d 488, 500(2001).

By signing the acknowledgement, the mother, by her own volition, accepted that the father is the child's biologicalfather.Even though she presumably had notice that genetic marker testing was available, seeMass. Gen. Laws ch. 209C, § 5(b)(2007), she did not seek such testing before signing the acknowledgement.The mother further affirmed that she read and understood the process for rescinding and challenging the acknowledgement.Despite this understanding, the mother never rescinded nor challenged the acknowledgment within the delineated time periods.Accordingly, the father's paternity was established on December 30, 2004, and, as the mother understood when she signed it, the acknowledgment now has the same force and effect as a Massachusetts court judgment of paternity.Mass. Gen. Laws ch. 209C, § 11(a);see also41 Am.Jur.2dIllegitimate Children§ 42, at 261(2005)("A valid acknowledgement of paternity filed with the proper agency is equivalent to an adjudication of paternity of a child and confers upon the acknowledged father all of the rights and duties of a parent.").

Besides her assertion two and one-half years after the child's birth that the father is not the child's biological father, the mother alleges no facts challenging the validity of the acknowledgement itself.CompareRSA 5–C:28, III (Supp.2007)andEly v. DeRosier,123 N.H. 249, 251, 459 A.2d 280(1983), with Mass....