In re Paternity of C.A.V.M.
| Decision Date | 09 March 2007 |
| Docket Number | No. 2005AP77.,2005AP77. |
| Citation | 728 N.W.2d 636,2007 WI 29 |
| Parties | In re the PATERNITY OF C.A.V.M. Shannon E. T., Petitioner-Appellant-Petitioner, Bye, Goff, & Rohde, Ltd., Appellant, v. Alicia M. V.M. an individual, by her guardians, Patricia N. and Brian V.M., Respondents-Respondents. |
| Court | Wisconsin Supreme Court |
For the petitioner-appellant-petitioner there were briefs by Moses J. Zimmerman and Murphy & Prachthauser, Milwaukee, and oral argument by Moses J. Zimmerman.
For the respondents-respondents there was a brief by Michael J. Roman and Zalewski, Klinner & Kramer, L.L.P., Wausau, and oral argument by Michael J. Roman.
This is a review of a published decision of the court of appeals,1 affirming an order of the Circuit Court for Monroe County, Judge Michael J. McAlpine, dismissing Shannon E.T.'s paternity action against Alicia M. V.M. and her legal guardians, Patricia N. and Brian V.M.
¶ 2 Shannon E.T. (Shannon) seeks to establish his paternity of C.A.V.M., who was stillborn as a result of a motor vehicle accident involving Alicia M. V.M. (Alicia), the mother of C.A.V.M. The court of appeals held that Wis. Stat. § 767.45(1)(2003-04)2 does not permit Shannon to bring an action under that section solely for the purpose of establishing paternity of the stillborn, in order to bring an action for the stillborn's wrongful death.
¶ 3 Wisconsin Stat. § 767.45(1)3 provides in relevant part:
The following persons may bring an action or motion, including an action or motion for declaratory judgment, for the purpose of determining the paternity of a child or for the purpose of rebutting the presumption of paternity under s. 891.405 or 891.41(1):
(a) The child.
(b) The child's natural mother.
(c) Unless s. 767.62(1) applies, a man presumed to be the child's father under s. 891.405 or 891.41(1).
(d) A man alleged or alleging himself to be the father of the child.
¶ 4 In the petition for review, we are asked to answer the question of whether Shannon, as an unmarried man alleging himself to be the father of a stillborn, may bring a paternity action under Wis. Stat. § 767.45(1) to establish paternity for purposes of bringing a claim for the wrongful death of a viable fetus that was stillborn. We answer this question in the negative. However, we hold that, under such circumstances, Shannon, who is alleging that he is the father, may bring a motion under Wis. Stat. § 885.23 to determine his parentage in the pending wrongful death action.
¶ 5 The decision of the court of appeals is affirmed, but on the grounds set forth herein.
¶ 6 Alicia was 27 weeks pregnant when she was involved in a motor vehicle accident that caused her son, C.A.V.M., to be stillborn. As a result of the accident, Alicia, herself, became legally incompetent.
¶ 7 Shannon alleges that he is C.A.V.M.'s father. Shannon claims that he resided with Alicia during periods of her pregnancy and assisted with prenatal care.
¶ 8 Following the motor vehicle accident, Shannon initiated a wrongful death action in Wood County Circuit Court before the Honorable Edward F. Zappen, Jr., alleging that he was the father of C.A.V.M., that C.A.V.M. had been a viable fetus, and that the stillbirth was due to the negligence of Alicia and/or the other driver. The circuit court stayed the wrongful death action, holding that Shannon could not proceed without a determination that he was the father of C.A.V.M.4 Shannon then commenced this paternity action in Monroe County.
¶ 9 Alicia's legal guardians filed a motion to dismiss on behalf of Alicia, arguing that Wis. Stat. § 767.45(1) does not provide a basis for determining the paternity of a stillborn, and that Shannon, therefore, failed to state a claim upon which relief could be granted. Shannon argued that § 767.45 does not define "child" and does not require a live birth, in order for a court to adjudicate paternity.
¶ 10 The Monroe County Circuit Court, Judge Michael J. McAlpine, granted Alicia's motion to dismiss. The court concluded that a paternity action brought under Wis. Stat. § 767.45(1) requires the birth of a child and that stillbirth did not qualify as a birth. In its analysis, the circuit court cited State ex rel. Angela M.W. v. Kruzicki, 209 Wis.2d 112, 138, 561 N.W.2d 729 (1997), in which this court held that the term "child" in Wis. Stat. § 48.02(2)(1993-94) meant a human being born alive, and did not include a viable fetus.
¶ 11 In its analysis, the Monroe County Circuit Court also discussed Wis. Stat. §§ 767.51(3)(b), (c), and (d), which require that "[a] judgment or order determining paternity shall contain" orders for legal custody, physical placement, and support of a child, as well as a determination as to which parent has the right to claim the child for tax exemption purposes. The court concluded that the language contained in these provisions would be rendered absurd, if the meaning of the term "birth" were to include stillbirth, because none of the provisions therein applied in the case of a stillbirth.
¶ 12 Shannon appealed, and the court of appeals affirmed the decision of the Monroe County Circuit Court, but on somewhat different grounds. The court of appeals held that Wis. Stat. § 767.45(1) does not permit a man alleging he is the father to bring a paternity action for the sole purpose of establishing paternity of a stillborn, so that he may bring an action for the stillborn's wrongful death. Shannon E.T. v. Alicia M. V.M., 2006 WI App 104, ¶ 24, 294 Wis.2d 531, 718 N.W.2d 729.
¶ 13 The court of appeals noted that the parties to this action agreed that the word "child" in Wis. Stat. § 767.45(1) is ambiguous. Id., ¶ 8. Alicia argued that "child" should be read to require a live birth. Shannon argued that § 767.45(1) should be construed to include a stillborn fetus within the meaning of the word "child." Shannon further argued that if the term "child" excludes a stillborn, then he would be deprived of the right to bring a wrongful death action.
¶ 14 In support of his position, Shannon cited Kwaterski v. State Farm Mutual Automobile Ins. Co., 34 Wis.2d 14, 15, 22, 148 N.W.2d 107 (1967), in which this court concluded that the term "person" in the wrongful death statute, Wis. Stat. § 895.03 (1965),5 includes a viable fetus. In Kwaterski, the parents of a viable fetus that was stillborn alleged that the stillbirth was caused by another driver's negligence in a motor vehicle accident. This court held that the parents of the stillborn had a cause of action for wrongful death against the driver of the other vehicle. Kwaterski, 34 Wis.2d at 22, 148 N.W.2d 107.
¶ 15 The court of appeals considered Wis. Stat. § 767.45(1) within the context of the entire paternity statute, Wis. Stat. §§ 767.45-767.62, and concluded that the language of § 767.45(1) is ambiguous, in regard to this matter. The court of appeals noted that the paternity statute includes detailed procedures for making a paternity determination, as well as for issuing orders related to the care of a "child" and expenses associated with a "child." Shannon E.T., 2006 WI App 104, ¶ 11, 294 Wis.2d 531, 718 N.W.2d 729. Section 767.50(1) states that a paternity trial shall consist of two parts:
¶ 16 The court of appeals noted that the paternity statute does not expressly provide that a paternity action may be brought only if the adjudication of paternity is for the purposes of determining child support, legal custody, physical placement, and related issues. Id. However, the court of appeals stated that it is reasonable to conclude that the legislature intended, through Wis. Stat. § 757.51(3), to require that any paternity judgment must contain provisions regarding the support, care, and custody of the child. Id., ¶ 12. In its analysis, the court considered other sections of the paternity statute, including Wis. Stat. §§ 767.46(2) and 767.463, which deal with the best interest of the child, and § 767.51(3),6 which deals with the contents of a judgment or order of paternity. Id. ¶ 17 The court disagreed with Alicia's argument that Wis. Stat. § 757.51(3) requires every paternity judgment or order to contain all of the items listed in that section and that, therefore, the legislature intended that "child" requires a live birth. Id. The court of appeals noted that, in cases where a child is born alive, but later dies, the provisions of § 757.51(3) that contemplate decisions regarding a live child are inapplicable, just as they are inapplicable in the case of a stillbirth. The court also reasoned that, even in the case of a live child, some of the orders listed in § 757.51(3) may not be necessary. Id.
¶ 18 After concluding that Wis. Stat. § 767.45(1) was ambiguous, the court of appeals then looked to the legislative history of the paternity statute, §§ 767.45-767.62, and noted its policies and purposes. The original predecessor to today's paternity statute was Wis. Stat. Chapter 31 (1849), which served the purpose of allowing the town in which a child was born to an unmarried mother to obtain money from the father for the child's support and expenses.7 Id., ¶ 15. The court of appeals noted that subsequent changes to the statute provided that a paternity action, previously referred to as an illegitimacy action or prosecution for bastardy, could be brought only by the district attorney.8 Id., ¶ 16.
¶ 19 In 1963, the legislature adopted Wis. Stat. § 52.21(2),9 which authorized the court in a paternity action to make orders for the care, custody, support, and maintenance of a child. Id. Then, with the enactment of § 25, Chapter 352, Laws of 1979, the legislature listed the child, the mother, or a man presumed or alleged to be the father as persons authorized to bring a paternity action. See Wis. Stat. § 767.45(1)(19...
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