In re Support Obligation of Do Rego, 21485.
| Decision Date | 03 January 2001 |
| Docket Number | No. 21485.,21485. |
| Citation | 2001 SD 1,620 N.W.2d 770 |
| Parties | In the Matter of the SUPPORT OBLIGATION OF Carlos Do REGO. |
| Court | South Dakota Supreme Court |
Kent R. Hagg of Whiting, Hagg & Hagg, Rapid City, SD, Attorneys for appellee DoRego.
Debra D. Watson, Rapid City, SD, Attorney for appellant Vickie.
[¶ 1.] In November of 1999, after receiving financial assistance from the State of South Dakota, Vickie sought past and future child support payments from Carlos Do Rego (Do Rego). The circuit court found that the presumption of legitimacy precluded Do Rego's support obligation and denied Vickie's claim. We affirm.
[¶ 2.] Do Rego and Vickie were romantically involved beginning in 1985 and ending in the fall of 1987. This relationship included several sexual encounters. After the last encounter, in either late October or early November of 1987, Vickie phoned Do Rego, informing him that she was pregnant. There is a dispute as to whether Vickie informed Do Rego that the child was his. Do Rego claims that Vickie told him that she was unsure as to the identity of the father. Vickie denies she made that statement, asserting that she had no doubt who the father was because Do Rego was the only person with whom she had engaged in sexual relations. Vickie was two months along at the time she informed Do Rego of her pregnancy.
[¶ 3.] The relationship between Vickie and Do Rego ended after this revelation. On December 26, 1987, Vickie married Michael, with whom she had previously been romantically involved. Michael and Vickie have remained married since that date. At the time of the marriage, Michael was aware of Vickie's pregnancy as well as the fact that he was not the father. Vickie's child, C.R., was born on April 10, 1988. C.R. was given Michael's last name and has been treated as Michael's child. After they were married, Michael and Vickie lived in New Jersey for a short time before returning to the Rapid City area. [¶ 4.] While Michael and Vickie were living in New Jersey, Do Rego attempted to contact Vickie at her previous phone number, which was her parents' home. He was informed that Vickie had moved out and been married. Do Rego assumed that Vickie had married the father of her child. Although Do Rego was stationed at Ellsworth Air Force Base until January of 1992, there was no further contact between Do Rego and Vickie from the phone conversation in 1987 until November of 1999. At that time, Do Rego received a notice from the State of South Dakota that it would be seeking past and future child support for Vickie's son, C.R.
[¶ 5.] At Do Rego's request, a paternity test was performed, revealing a 99.99% probability that he was the father of C.R. A child support hearing was subsequently held before a referee. The referee issued a report recommending the action be dismissed. The referee found that because C.R. was born to Vickie while she was married to Michael, C.R. was the legitimate son of Michael pursuant to the presumption of legitimacy mandated in SDCL 25-8-57. The referee further concluded that, under SDCL 25-8-59, any action contesting the presumption of legitimacy must have been brought within sixty days of C.R.'s birth, because no fraud, duress, or material mistake had occurred. Because this window had long ago closed, C.R. was presumed to be Michael's legitimate child. Therefore, Do Rego was not legally responsible for the support of C .R. The circuit court adopted the referee's conclusions. Vickie appeals to this Court, raising the following issue:
Whether the presumption of legitimacy precludes the recovery of child support from the biological father.
[¶ 6.] There is no dispute of the facts material to a resolution of this issue, therefore we are limited to a question of statutory interpretation. The interpretation of statutes is reviewed as a matter of law under the de novo standard. Cole v. Bd. of Adj., City of Huron, 1999 SD 54, ¶ 4, 592 N.W.2d 175, 176.
[¶ 7.] Pursuant to SDCL 25-8-57, "[a]ny child born in wedlock, or born within ten months after dissolution of the marriage, is presumed legitimate to that marriage...." Because C.R. was born while Michael and Vickie were married, he is presumed to be a legitimate child of that marriage. "This presumption of legitimacy is one of the very strongest, if not the strongest, presumption known to the law." In re Kessler's Estate, 76 S.D. 158, 162, 74 N.W.2d 599, 601 (1956). However, this presumption is not absolute. SDCL 25-8-57 provides that the presumption of legitimacy can be contested, but only "by the husband or wife, or a descendant of one or both of them." Before she is entitled to receive child support payments, Vickie must...
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DSS OF STATE EX REL. WRIGHT v. Byer
...the divorce, but recent paternity testing had excluded him as the biological father of K.S. [¶ 4.] Relying on In re Support Obligation of Do Rego, 2001 SD 1, 620 N.W.2d 770, the trial court reluctantly dismissed the action because it had not been brought before the limitations period expire......
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...a child is born in wedlock the rebuttable presumption of legitimacy must be challenged within sixty days of its creation. In re Support Obligation of Do Rego, 2001 SD 1, ¶ 8, 620 N.W.2d 770, 771-72 (citing SDCL 25-8-59.) Under the statute, the date of creation is either the date of the chil......
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Burden v. Burden
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State Of South Dakota v. Cortez, 25340.
...may have affected the rationale or outcome of the case. Additionally, Crouse was decided prior to our opinion in In re Support Obligation of Do Rego, 2001 SD 1, 620 N.W.2d 770. See Dep't of Soc. Servs. v. Byer, 2005 SD 37, 694 N.W.2d 705 (declining to address the constitutionality of SDCL C......