JA v. CJH

• Decision Date: 16 September 1996
• Docket Number: Nos. C-95-10,C-95-11,s. C-95-10
• Citation: 923 P.2d 758
• Parties: JA, Appellant (Third Party Plaintiff), v. CJH and SA, Appellees (Respondents). STATE OF WASHINGTON, ex rel., DAA, Appellant (Plaintiff), v. CJH and SA, Appellees (Respondents).
• Court: Wyoming Supreme Court

Page 758

923 P.2d 758

JA, Appellant (Third Party Plaintiff), v. CJH and SA, Appellees (Respondents).

STATE OF WASHINGTON, ex rel., DAA, Appellant (Plaintiff), v. CJH and SA, Appellees (Respondents).

Nos. C-95-10, C-95-11.

Supreme Court of Wyoming.

Sept. 16, 1996.

Rene Botten of Northern Wyoming Law Associates, Sheridan, and Paul G. Jarvis, Guardian ad Litem, Buffalo, for Appellant JA.

Greg L. Goddard, County and Prosecuting Attorney, Johnson County, Buffalo, for Appellant State of Washington ex rel. DAA.

Dennis M. Kirven of Kirven & Kirven, Buffalo, for Appellee CJH.

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN, ^* and LEHMAN, JJ.

THOMAS, Justice.

In these consolidated cases, the dispositive issue is whether an action can be brought to establish paternity in an alleged putative father in the absence of a timely action to declare the nonexistence of a father and child relationship between the presumed father and the child. The district court dismissed an action brought by the State of Washington (Washington) under the Uniform Reciprocal Enforcement of Support Act to establish the paternity of CJH with respect to JA. JA intervened in that action through an appointed guardian ad litem. The district court ruled, since no timely action had been instituted to declare the nonexistence of a father and child relationship between JA and the presumed father, the statutory presumption had become absolute. The district court ruled, consistently, that the action to establish paternity was foreclosed. The language of the applicable statute is clear and unambiguous and forecloses the paternity action in these circumstances. We affirm the decision of the district court.

In the Brief of Appellant State of Washington, ex rel., DAA, a single issue is posed:

When a child has a presumed father and more than five (5) years have elapsed since the date of the birth of the child, may the child or the state bring an action to establish paternity in a person other than the presumed father?

JA, the minor child, through his guardian ad litem, states two issues on appeal in the Brief of Appellant JA:

1. Did the District Court err in holding as a matter of law that SA is the presumed father of JA under W.S. 14-2-102 when it failed to consider facts which rebut, by clear and convincing evidence, that presumption?

2. If so, then did the District Court err when it applied the statute of limitations from W.S. 14-2-104(a) instead of the proper statute of limitations contained in W.S. 14-2-105?

CJH, the putative father, in his Brief of Appellee CJH, adopts the statement of the issue by Washington.

The facts in this case are settled by a Stipulation of Agreed Upon Facts. Those agreed facts are:

1. On October 8, 1992, the State of Washington, Ex Rel DAA, filed a petition (Civil Action No. 92-10 Ci-101, Fourth Judicial District, Johnson County, Wyoming) in accordance with the Uniform Reciprocal Enforcement of Support Act requesting the establishment of paternity of Respondent CJH and Order of Child Support for a dependent child named JA, who was born May 28, 1986. Approximately one month after birth, JA received medical treatment after suffering an apparent stroke, and was prescribed phenobarbital and other medications to control seizures. Sometime in 1992, JA was examined by physicians and diagnozed [sic] as being "seizure free", and at such time all seizure medications were decreased and eventually discontinued.

2. Respondent CJH, a resident of the State of Wyoming, was served with the petition on October 10, 1992.

3. At the time of the birth of the minor child, JA, on May 28, 1986, the natural mother, DAA, was married to the presumed father, SA. SA and DAA separated approximately three years prior to conception of the minor child, JA.

4. DAA was married to SA from September 18, 1982, until their divorce on January 20, 1987. However, the existence of the minor child was not acknowledged or otherwise mentioned in the divorce decree.

5. The birth certificate contains no indication of the father of the minor child, JA. The minor child's name appears as [JCH] on the birth certificate.

6. Under the provisions of W.S. 14-2-102(a)(i), 1977, SA is the presumed father of the minor child, JA.

7. A period of more than five (5) years have [sic] expired since the birth of the child on May 28, 1986, and the filing of this action by the petitioner.

8. SA, currently a resident of the State of Arizona, was joined to this action as a necessary and indispensable party, and was served on May 7, 1993, but filed no answer or other responsive pleading.

9. On June 8, 1993, the court ordered blood testing to be administered to all parties for determine [sic] paternity in this matter.

10. Pursuant to the blood testing conducted by the Blood Center of Southeastern Wisconsin, the probability of paternity of the respondent, CJH, is 99.96%.

11. Pursuant to the blood testing conducted by the Blood Center of Southeastern Wisconsin, SA was excluded as the natural father of JA.

12. Respondent SA did not, within five years after the birth of JA on May 28, 1986, commence any action to determine the nonexistence of his presumed paternity of said child.

13. Neither SA or CJH have had a determination in any other jurisdiction of their paternity or other rights and obligations with respect to the minor child, JA.

14. On April 26, 1994, an order was entered allowing the minor child, JA, to intervene as a third party Plaintiff.

15. Neither CJH or SA have had continuous contact with the minor child.

On October 8, 1992, Washington, on the relation of DAA, invoking the Uniform Reciprocal Enforcement of Support Act, filed a petition in which it sought to have the existence of a father and child relationship between CJH and JA be determined and in which it also sought support. Washington had been furnishing support and also medical treatment to JA since September 22, 1987. CJH was served in Wyoming, and SA, who was also joined, was served in Arizona. SA did not file an answer to the petition nor any other responsive pleading.

It is clear no action ever was instituted to have declared the nonexistence of the father and child relationship between SA and JA, as provided for in WYO. STAT. § 14-2-104 (1978):

(a) A child, his natural mother or a man presumed to be his father under W.S. 14-2-102(a)(i), (ii) or (iii) may bring action:

* * *

(ii) For the purpose of declaring the nonexistence of the father and child relationship presumed under W.S. 14-2-102(a)(i), (ii) or (iii) only if the action is brought within a reasonable time after obtaining knowledge of relevant facts, but in no event later than five (5) years after the child's birth. After the presumption has been rebutted, paternity of the child by another man may be determined in the same action if he has been made a party. (Emphasis added.)

On April 26, 1994, the court permitted JA, through a guardian ad litem, to intervene in the paternity action as a third-party plaintiff. JA requested judgments against CJH or SA, or both of them, for child support. CJH answered, denying paternity, on May 10, 1994. On May 24, 1995, the district court certified the case to our court, but we declined to answer the certified question of law. The parties respectively moved for summary judgment, and the district court issued an order of dismissal on August 16, 1995. The court ruled no timely petition to challenge the presumption of paternity in SA was filed, and "the petition to establish paternity in a person other than mother's husband at the time of the child's birth [SA] is dismissed." JA and Washington separately appealed to this court, where the cases were consolidated.

SA is presumed to be the father of JA in accordance with WYO. STAT. § 14-2-102 (1978), which provides, in pertinent part:

(a) A man is presumed to be the natural father of a child if:

(i) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within three hundred (300) days after the marriage is terminated by death, annulment or divorce or after a decree of separation is entered by a court; or

* * *

(b) A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two (2) or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. A presumption is rebutted by a court decree establishing paternity of the child by another man.

Washington and JA opine that, because the probable paternity of CJH has been established, the presumption of paternity in SA has been rebutted by clear and convincing evidence in accordance with WYO. STAT. § 14-2-102(b). In a circular vein, they argue, since the presumption of paternity has been effectively rebutted, the paternity action on behalf of JA is timely under WYO. STAT. § 14-2-105 (1978) because there is no presumed father. The pertinent statutory language reads:

An action to determine the existence of the father and child relationship as to a child who has no presumed father under W.S. 14-2-102 may not be brought later than three (3) years after the birth of the child, or later than three (3) years after the effective date of W.S. 14-2-101 through 14-2-120, whichever is later. However, an action brought by or on behalf of a child whose paternity has not been determined is not barred until three (3) years after the child reaches the age of majority.

WYO. STAT. § 14-2-105 (1978) (emphasis added).

The essence of this argument is that, since the bloodtesting resulted in there being no presumed father, JA had until three years beyond majority to bring the action to determine the existence of the father and child relationship between CJH and JA. This argument fails to acknowledge the barrier to the action found in WYO. STAT. § 14-2-104. Pursuant to the provisions of WYO. STAT. § 14-2-102,...