In re the Parentage of K.R.P. (dob: 09/05/95) And K.H.R.P. (dob: 05/17/98)

• Decision Date: 22 February 2011
• Docket Number: No. 63774–6–I.,63774–6–I.
• Citation: 247 P.3d 491,160 Wash.App. 215
• Parties: In re the Parentage of K.R.P. (DOB: 09/05/95) and K.H.R.P. (DOB: 05/17/98), Minor Children,Mark Kjolhaug, Appellant,andTamy Pawlak, Respondent,Timothy Pawlak, Respondent.
• Court: Washington Court of Appeals

160 Wash.App. 215

247 P.3d 491

In re the Parentage of K.R.P. (DOB: 09/05/95) and K.H.R.P. (DOB: 05/17/98), Minor Children,Mark Kjolhaug, Appellant,andTamy Pawlak, Respondent,Timothy Pawlak, Respondent.

No. 63774–6–I.

Court of Appeals of Washington, Division 1.

Feb. 22, 2011.

Ted D. Billbe, Law Office of Ted D. Billbe, Deborah Anne Bianco, Deborah A. Bianco PS, Bellevue, WA, Michael Barr King, Carney Badley Spellman PS, Leonard W. Juhnke, Attorney at Law, Seattle, WA, for Appellant.Paul Frederick Seligmann, Attorney at Law, Valerie A. Villacin, Catherine Wright Smith, Smith Goodfriend PS, Seattle, WA, for Respondent.Pam Edgar, Seattle, WA, Appearing Pro Se, for Guardian Ad Litem.COX, J.

[160 Wash.App. 218] ¶ 1 The primary issue in this appeal is whether the trial court correctly denied a properly supported motion for genetic testing in this action to establish parentage. Washington's Uniform Parentage Act (“UPA”), RCW 26.26.405, mandates genetic testing of children and other designated individuals, subject to limited exceptions. On this record, none of those exceptions apply. Accordingly, the trial court improperly denied the motion of Mark Kjolhaug, the petitioner in this action. We reverse and remand with instructions.¹

¶ 2 Tamara (“Tamy”) and Timothy (“Tim”) Pawlak married in 1983.² Between 1983 and 1986, they had two children together. Following the birth of their second child, Tamy and Tim decided not to have any more children and Tim obtained a vasectomy.

¶ 3 In 1993, following the family's move to Minnesota, Tamy met Mark Kjolhaug (“Mark”). She told Mark that she was divorced from Tim, and the two began an intimate relationship. Tamy told Tim that her relationship with Mark was platonic.

¶ 4 In January 1995, Tamy became pregnant. Tamy led both Tim and Mark to believe that he was the father. K.R.P. was born in September 1995.

¶ 5 Tamy became pregnant again in August 1997. Again, she led both Tim and Mark to believe that he was the father. K.H.R.P. was born in May 1998.

¶ 6 Tim is listed as the father on the birth certificates of K.R.P. and K.H.R.P.

¶ 7 From the birth of each child, both Tim and Mark have played significant roles in the lives of both children. There was testimony at trial that the children call both men “dad.”

¶ 8 In 2001, the Pawlaks relocated to Seattle. After the move, Mark traveled to Seattle frequently to visit Tamy, K.R.P., and K.H.R.P. In late 2003 or early 2004, Tim became suspicious of the nature of Tamy and Mark's relationship. He also began to question the children's paternity.

¶ 9 In 2005, Tim petitioned for dissolution of his marriage to Tamy. It appears that no mention of Mark arose in that proceeding. In June 2006, the superior court entered a decree of dissolution, an order approving and adopting a parenting plan, and a child support order. Tim was designated as the obligor parent in the child support order.

¶ 10 In November 2007, Mark commenced this action to establish his parentage of the two minor children. The petition included a request for genetic testing. The court appointed a guardian ad litem (GAL) for K.R.P. and K.H.R.P. Among the court's directives to the GAL was to recommend “whether a DNA test should be ordered, and [to] represent the children's best interests.” The GAL recommended against genetic testing, concluding that it would not be in the children's best interest.

¶ 11 Following the GAL's recommendation against genetic testing, both Mark and Tamy separately moved, pursuant to RCW 26.26.405, for an order requiring genetic testing. Mark's motion was supported by a declaration alleging paternity and claiming the requisite sexual contact with Tamy, as required by the statute. Tamy's motion was consistent with and supplemented Mark's motion.

¶ 12 A court commissioner denied both motions. With respect to Mark's motion, the commissioner concluded that genetic testing would not be in the children's best interest. With respect to Tamy's motion, the commissioner concluded that RCW 26.26.630(1)(b) barred Tamy from challenging paternity as established through the June 2006 decree of dissolution.³

[160 Wash.App. 221] ¶ 13 Mark moved to revise the commissioner's order, arguing that genetic testing was required. The trial court denied the motion, deciding that such testing was not in the best interest of the children.

¶ 14 The case proceeded to trial to determine a parenting plan and to also determine what financial responsibilities the parties would have for the two minor children. At the beginning of the proceeding, the parties stipulated on the record that Mark met the criteria for a “de facto” parent. Following trial, the court entered its findings of fact and conclusions of law together with its judgment and order on the petition for establishment of parentage. The court denied Mark's petition. But, the court entered a parenting plan allocating residential time among Mark, Tamy, and Tim. The court also entered a child support order requiring “Mark Kjolhaug as a defacto parent and Timothy Pawlak as the adjudicated father” to pay child support.

¶ 15 Mark and Tamy appeal.

GENETIC TESTING

¶ 16 Mark and Tamy argue that the trial court erred in denying genetic testing. Mark claims that RCW 26.26.405 is dispositive in that it mandates testing under the circumstances of this case. We agree.

¶ 17 We first address a threshold issue. Mark and Tamy both appeal the trial court's denial of their respective motions for genetic testing. But Tamy fails to argue why she is not barred from challenging paternity, as the court commissioner determined below. Because of this failure and the fact that the focus of the briefing is on the denial of Mark's motion, our analysis also focuses on the denial of his motion.

Legislative Intent

¶ 18 The primary goal of statutory interpretation is to ascertain and give effect to the legislature's intent and purpose.⁴ “[I]f the statute's meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.” ⁵ The plain meaning of a statute is derived from all the legislature has said in the statute and related statutes that disclose legislative intent about the provision in question.⁶

¶ 19 Statutory interpretation is a legal issue that this court reviews de novo.⁷

¶ 20 Chapter 26.26 RCW, Washington's UPA, was modified in 2002. ⁸ The revisions repealed and replaced provisions based on the Uniform Law Commission's Uniform Parentage Act of 1973 with provisions based on the revised Uniform Parentage Act of 2000.⁹

¶ 21 The primary question on appeal is whether the trial court properly denied Mark's motion for genetic testing. His motion was based on RCW 26.26.405, which provides:

(1) Except as otherwise provided in this section and RCW 26.26.410 through 26.26.630, the court shall order the child and other designated individuals to submit to genetic testing if the request for testing is supported by a sworn statement of a party to the proceeding:

(a) Alleging paternity and stating facts establishing a reasonable possibility of the requisite sexual contact between the individuals; or

(b) Denying paternity and stating facts establishing a possibility that sexual contact between the individuals, if any, did not result in the conception of the child.

(2) A support enforcement agency may order genetic testing only if there is no presumed, acknowledged, or adjudicated father.

(3) If a request for genetic testing of a child is made before birth, the court or support enforcement agency may not order in utero testing.

(4) If two or more men are subject to court-ordered genetic testing, the testing may be ordered concurrently or sequentially.¹⁰

¶ 22 The plain words of this statute state the legislature's intent that genetic testing is mandatory where there is a properly supported motion of a party to a parentage proceeding, subject to limited exceptions. “Where a provision contains both the words ‘shall’ and ‘may,’ it is presumed that the lawmaker intended to distinguish between them, ‘shall’ being construed as mandatory and ‘may’ as permissive.” ¹¹ Thus, as a general rule, this court interprets statutory directives using the word “shall” as mandatory or imperative in character.¹²

¶ 23 No one argues that any of the exceptions listed under RCW 26.26.405(2)–(4) apply to the facts of this case. Of the remaining exceptions to mandatory testing stated in the first sentence of RCW 26.26.405(1), RCW 26.26.535 is the only exception to the mandate for genetic testing that appears to have been addressed below. That provision states:

(1) In a proceeding to adjudicate parentage under circumstances described in RCW 26.26.530, a court may deny genetic testing of the mother, the child, and the presumed father if the court determines that:

(a) The conduct of the mother or the presumed father estops that party from denying parentage; and

(b) It would be inequitable to disprove the father-child relationship between the child and the presumed father.

(2) In determining whether to deny genetic testing under this section, the court shall consider the best interest of the child, including the following factors:

(a) The length of time between the proceeding to adjudicate parentage and the time that the presumed father was placed on notice that he might not be the genetic father;

(b) The length of time during which the presumed father has assumed the role of father of the child; (c) The facts surrounding the presumed father's discovery of his possible nonpaternity;

(d) The nature of the father-child relationship;

(e) The age of the child;

(f) The harm to the child which may result if presumed paternity is successfully disproved;

(g) The relationship of the child to any alleged father;

(h) The extent to which the passage of time reduces the chances of establishing the paternity of another man and a child support obligation in favor of the child; and

(i) Other factors that may affect the equities arising...