In re the Paternity of Christian R. H.Dustardy H.

• Decision Date: 21 December 2010
• Docket Number: Nos. 2008AP2587,2009AP739.,s. 2008AP2587
• Citation: 331 Wis.2d 158,794 N.W.2d 230,2011 WI App 2
• Parties: In re the PATERNITY OF CHRISTIAN R. H.Dustardy H., Appellant,v.Bethany H., Respondent.
• Court: Wisconsin Court of Appeals

331 Wis.2d 158

794 N.W.2d 230

2011 WI App 2

In re the PATERNITY OF CHRISTIAN R. H.Dustardy H., Appellant,

v.Bethany H., Respondent.

Nos. 2008AP2587

2009AP739.

Court of Appeals of Wisconsin.

Submitted on Briefs April 6, 2010.Opinion Filed Dec. 21, 2010.

On behalf of the appellant, the cause was submitted on the briefs of William J. Hammett and Natalie Sturicz–Heiges of Hammett, Bellin & Oswald, LLC, Neenah.On behalf of the respondent, the cause was submitted on the brief of Kathleen M. Healy of Di Renzo & Bomier, LLC, Neenah.Before HOOVER, P.J., PETERSON and BRUNNER, JJ.BRUNNER, J.

[331 Wis.2d 160] ¶ 1 This case emphasizes once again the importance of finality in our justice system. In 2004, the circuit court erroneously granted Dustardy H. parental rights to Christian R. H., a child conceived via artificial insemination by Dustardy's same-sex partner, Bethany H.¹ Four years later, after Dusty and Beth ended their relationship, Beth moved to void the parental rights order under Wis. Stat. § 806.07(1)(d).² The circuit court granted Beth's motion. Dusty appeals that 2008 order and a 2009 order denying Dusty's motion for reconsideration.

[331 Wis.2d 161] ¶ 2 We reverse. An order is void only if the court rendering it lacked subject matter or personal jurisdiction or denied a party due process of law. Here, the circuit court concluded its legal errors in the 2004 parentage order deprived it of subject matter jurisdiction. We conclude a court's subject matter jurisdiction is not affected by its errors of law. Thus, the circuit court erroneously exercised its discretion by voiding its 2004 order.

BACKGROUND

¶ 3 Dusty and Beth were in a same-sex relationship between October 2001 and November 2005. They participated in a civil commitment ceremony in Hawaii in 2003.³ That year, the couple decided to have a child via artificial insemination using an anonymous donor's sperm. Beth agreed to carry the child, Christian, who was born on April 20, 2004.

¶ 4 Later that year, Beth and Dusty filed a “Petition for Determination of Parentage.” They sought an order pursuant to Wis. Stat. § 891.40 declaring Dusty to be Christian's legal parent. Following a hearing, the circuit court found Dusty had consented to the artificial insemination and concluded she was Christian's parent under § 891.40, and a “de facto parent” under Holtzman v. Knott, 193 Wis.2d 649, 533 N.W.2d 419 (1995).

¶ 5 After Dusty and Beth ended their relationship, they informally agreed to share equal custody of Christian. Then, in 2008, Dusty petitioned the circuit court for an order awarding the parties joint legal custody and shared physical placement. In response, Beth filed a motion for relief under Wis. Stat. § 806.07(1)(d), asserting the 2004 parentage order was void because the circuit court lacked authority to enter it under both Wis. Stat. § 891.40 and Holtzman.

¶ 6 In a 2008 written order, the circuit court granted Beth's motion to void the parentage order. The court concluded it lacked subject matter jurisdiction because “the [ Holtzman ] decision and existing statutory provisions [clearly establish] that Dustardy [H.] could not be a legal parent of the child.”

¶ 7 Dusty filed a motion for reconsideration, claiming the circuit court's interpretation of state law violated her and Christian's constitutional rights. ⁴ The circuit court denied Dusty's motion on January 7, 2009. Dusty appeals the order vacating the 2004 order and the order denying her motion for reconsideration.

¶ 8 After Dusty's intent to appeal became apparent, Beth sought to amend her Wis. Stat. § 806.07 motion to include the catch-all provision set forth in § 806.07(1)(h). The catch-all provision permits the circuit court to relieve a party from an order for any reason that appears just. But a motion under (1)(h) must be brought within a “reasonable time,” Wis. Stat. § 806.07(2), and the circuit court concluded Beth's motion was untimely. Beth has not appealed that determination.

DISCUSSION

¶ 9 Our review is limited to the circuit court's 2008 and 2009 orders, but the nature of this case requires that we assess whether the court's 2004 parentage order was void. As we have noted, the order rested on the circuit court's interpretation of the artificial insemination statute, Wis. Stat. § 891.40, and Holtzman. Our reading of both authorities indicates the circuit court clearly erred in 2004.

¶ 10 Wisconsin's artificial insemination statute creates a presumption that a husband whose wife is artificially inseminated with semen donated by another man is the “natural father” of the child.⁵ Wis. Stat. § 891.40(1). For obvious reasons, a same-sex partner of the child's biological mother can never receive the presumption of parenthood under § 891.40(1). The presumption operates only in favor of a male, as evidenced by the statute's use of the words “husband” and “father.” Further, same-sex couples can never satisfy the marital relationship described by the statute. See Wis. Const. art. XIII, § 13 (“Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.”). The circuit court's most recent orders correctly conclude that it erred in 2004 by granting Dusty parental rights under § 891.40(1).

¶ 11 Curiously, the circuit court cited Holtzman as an alternative basis for its parentage order. In that case, the circuit court dismissed Sandra Holtzman's petition seeking custody and visitation rights to the biological child of her same-sex partner, Elsbeth Knott.⁶ Holtzman, 193 Wis.2d at 657, 533 N.W.2d 419. The supreme court first determined that the circuit court properly dismissed Holtzman's custody petition because she failed to raise a triable issue regarding Knott's fitness or ability to care for the child and failed to demonstrate compelling circumstances that would warrant a custody transfer. Id. at 665–66, 533 N.W.2d 419.

¶ 12 The confusion in our case stems, however, from the supreme court's discussion of Holtzman's visitation petition. Although the court concluded Holtzman's visitation request lacked a statutory basis, it determined a circuit court has common-law authority to award equitable visitation in a child's best interest “if the petitioner first proves that he or she has a parent-like relationship with the child and [further proves] that a significant triggering event justifies state intervention in the child's relationship with a biological or adoptive parent.” Id. at 658, 533 N.W.2d 419. The court then described the four component elements of the “parent-like relationship” requirement:

(1) that the biological or adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing towards the child's support, without expectation of financial compensation; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

Id. at 658–59, 533 N.W.2d 419 (footnotes omitted).

¶ 13 Here, the circuit court erroneously extracted the “parent-like relationship” prong from the supreme court's equitable visitation standard and used it as a stand-alone test to confer parental rights. Parentage may be established in one of three ways: by initiating a paternity action under Wis. Stat. § 767.80, by petitioning for adoption under the Children's Code, or by virtue of the presumption established by the artificial insemination statute. See Wis. Stat. § 48.02(13) (defining a “parent”). While a circuit court possesses common-law authority to order visitation, it has no authority outside of the Wisconsin statutes to confer parental rights. See Georgina G. v. Terry M., 184 Wis.2d 492, 506, 516 N.W.2d 678 (1994) (“Adoption proceedings, unknown at common law, are of statutory origin and the essential statutory requirements must be substantially met to validate the proceedings.”); State v. M.T.D., 132 Wis.2d 262, 263, 392 N.W.2d 97 (Ct.App.1986) (paternity proceedings are purely statutory). Accordingly, the circuit court erred in 2004 by reaching beyond the statutes to construct its own basis for conferring parental rights.⁷

[331 Wis.2d 166] ¶ 14 We next address whether the circuit court's erroneous legal conclusion rendered its parentage order void under Wis. Stat. § 806.07(1)(d). We review a circuit court's decision to grant relief under Wis. Stat. § 806.07 for an erroneous exercise of discretion. Schauer v. DeNeveu Homeowners Ass'n, 194 Wis.2d 62, 70–71, 533 N.W.2d 470 (1995). We will not reverse a circuit court's decision if it examined the relevant facts, applied a proper standard of law, and reached a reasonable conclusion. Lee v. GEICO Indem. Co., 2009 WI App 168, ¶ 16, 321 Wis.2d 698, 776 N.W.2d 622. Whether the circuit court properly interpreted statutory language is, however, a question of law. DOR v. River City Refuse Removal, Inc., 2007 WI 27, ¶ 26, 299 Wis.2d 561, 729 N.W.2d 396.

¶ 15 An order is not “void” under Wis. Stat. § 806.07(1)(d) unless the court rendering it lacked subject matter or personal jurisdiction or denied a party due process. Wengerd v. Rinehart, 114 Wis.2d 575, 578–79, 338 N.W.2d 861 (Ct.App.1983). This interpretation of § 806.07(1)(d) mirrors that of the federal rule, Fed.R.Civ.P. 60(b)(4), upon which our statute was based.⁸ Wengerd, 114 Wis.2d at 578–79, 338 N.W.2d 861. Here, Dusty claims the circuit court erroneously concluded it lacked subject matter jurisdiction in 2004.

¶ 16 Article VII, section 8 of the Wisconsin Constitution states, “Except as otherwise provided by law, the circuit court shall have original jurisdiction in all matters civil and criminal within this state.” As our supreme court...