Kielkowski v. Kielkowski

• Decision Date: 12 March 2015
• Docket Number: No. 20130225–CA.,20130225–CA.
• Citation: Kielkowski v. Kielkowski, 2015 UT App 59, 346 P.3d 690 (Utah App. 2015)
• Parties: Joshua Steven KIELKOWSKI, Petitioner and Appellant, v. Amanda C. KIELKOWSKI, Respondent and Appellee.
• Court: Utah Court of Appeals

346 P.3d 690

2015 UT App 59

Joshua Steven KIELKOWSKI, Petitioner and Appellant

v.Amanda C. KIELKOWSKI, Respondent and Appellee.

No. 20130225–CA.

Court of Appeals of Utah.

March 12, 2015.

Bryant J. McConkie and Adam D. Wentz, Salt Lake City, for Appellant.

Troy L. Booher, Salt Lake City, Noella A. Sudbury, and T.R. Morgan, for Appellee.

Judge STEPHEN L. ROTH authored this Opinion, in which Judge JAMES Z. DAVIS concurred.Senior Judge RUSSELL W. BENCH dissented, with opinion.¹

Opinion

ROTH, Judge:

¶ 1Joshua Steven Kielkowski(Husband) appeals from the district court's denial of his petition to modify the divorce decree to address custody, parent-time, and support of a child, who was born during his marriage to Amanda C. Kielkowski²(Mother) but who is not Husband's biological offspring.We conclude that the presumption of Husband's paternity was neither adjudicated by the district court nor conclusively rebutted by Husband's statement in his divorce filings that there were “no children at issue in this marriage.”As a consequence, the district court erred in denying Husband's divorce modification petition without first addressing his parentage claim.We reverse and remand for further proceedings in accordance with this decision.

BACKGROUND

¶ 2This case involves the application and effect of the presumption of parentage established by the Utah Uniform Parentage Act (the Parentage Act) in the context of a divorce modification petition.Under the Parentage Act, a rebuttable presumption arises that the husband of any woman who gives birth during the marriage is the father of the child.Utah Code Ann. § 78B–15–204(1)(a)(LexisNexis 2012).³The Parentage Act also prescribes the means by which that presumption can be rebutted.Id.§ 78B–15–204(2);id.§ 78B–15–607(3)(providing that the presumption may be rebutted through genetic testing, evidence that the mother and presumed father neither cohabited nor engaged in a sexual relationship at the time of the child's conception, or through an adjudication that the husband is not the father).

¶ 3 Husband married Mother in July 2002, and they separated in 2007.During the separation, Mother became pregnant with another man's child (Child).Child was born in 2009.Husband was aware that Child was not his biological son, but he had a relationship with Child from his birth until sometime after his second birthday.

¶ 4 In March 2011, the parties obtained a default divorce without the benefit of counsel.Husband relied on the Online Court Assistance Program (OCAP) to prepare a verified divorce petition, from which the divorce decree automatically generated.In the verified petition, Husband represented, by checking the applicable box, that there were “no children at issue in this marriage” because he understood the OCAP questionnaire to be asking only about biological children.As a result, the final divorce decree stated simply that “[t]here are no children at issue in this marriage” and contained no provisions regarding Child's custody, parent-time, or support.Mother did not respond to the divorce petition, and the decree was granted by default.⁴

¶ 5 For about six months after the divorce was finalized, Mother allowed Husband to exercise parent-time with Child and Husband made regular payments to Mother that he considered to be child support.Sometime prior to April 2012, Mother initiated an adoption proceeding to allow her new husband to adopt Child.She began denying Husband access to Child in January 2012 and, around the same time, started refusing Husband's child support payments.⁵

¶ 6 In April 2012, just over a year after the divorce was finalized, Husband filed a petition to modify the divorce decree, in which he requested that the court“modify the parties' Decree because the Decree fails to address the custody of the parties' minor child.”He asked the court to rule on his rights and obligations to Child, specifically on issues pertaining to legal custody, parent-time, and child support.Mother objected, arguing that Husband was not the biological father of Child and that he had effectively rebutted the presumption of paternity when he swore under oath in the verified divorce petition that there were no children at issue.

¶ 7 After a hearing on the modification petition, the domestic relations commissioner recommended that the district court“not use [its] equitable powers to change the divorce decree” because Husband knew there was a child born during the marriage and yet stated in the verified divorce petition that there were no children at issue and then made no effort to establish his rights and obligations as a father to Child during the divorce proceedings.Husband objected to the commissioner's recommendation on the basis that “[t]he Decree of Divorce failed to address any issues related to the minor child, ... who was born into the marriage, including custody and child support issues.”He requested a hearing before the district court.Mother responded that the district court adequately addressed the issue of children because it found, based on Husband's own representations, that there were no children at issue in the marriage.

¶ 8 After a hearing on Husband's objection, the district court adopted the commissioner's recommendation and denied Husband's petition to modify.The court stated that “it is undisputed that [Husband] is not the natural father of the minor child” and that although Husband and Mother“were married at the time of [Child]'s birth,” Husband “prepared and signed a formal legal document under oath wherein [he] affirmatively stated there were ‘no children at issue [in this] marriage,’ thus rebutting the presumption that he is the legal father of [Child].”Husband appeals.

ISSUE AND STANDARDS OF REVIEW

¶ 9 Husband challenges the district court's decision to deny his petition to modify the divorce decree.We“generally review[ ] the determination to modify a divorce decree for an abuse of discretion.”Sill v. Sill,2007 UT App 173, ¶ 8, 164 P.3d 415(citation and internal quotation marks omitted).However, to the extent “that determination is based on a conclusion of law,” as is the case here, “we review [the modification decision] for correctness.”Id.(citation and internal quotation marks omitted).

ANALYSIS

¶ 10 Husband claims that the district court erred in denying his petition to modify the divorce decree for the purpose of adding provisions for the custody and support of Child, who is legally presumed to be Husband's son under the Parentage Act.According to Husband, the failure of the default divorce decree to take Child into account constitutes a material omission sufficient to warrant modification of the decree.The district court explained that it was denying the modification petition because Husband had effectively rebutted any presumption of parentage when he represented under oath in the verified petition for divorce that there were “no children at issue in this marriage.”

¶ 11Mother asserts a number of grounds for upholding the district court's decision.First, she asserts that the court already adjudicated paternity in the divorce decree's provision, based on Husband's own representation, that the marriage produced no children.Second, she argues that to overcome the res judicata effect of the adjudication, Husband had to demonstrate a substantial change in circumstances, which he did not.Mother also argues that if Husband is contending that the divorce decree contains a mistake based on Husband's sworn representation, then he was required to file a timely motion under rule 60(b) of the Utah Rules of Civil Procedure to set aside the divorce decree, which he did not do.Finally, Mother contends that even if there is a basis for modification, Husband is prohibited from asserting the presumption of parentage now because the Parentage Act required the presumption to be asserted during the divorce proceedings.

¶ 12We conclude that the district court did not adjudicate Husband's paternity of Child and that the absence of any provisions pertaining to Child is a basis for modification.Accordingly, we remand for the district court to adjudicate parentage under the Parentage Act.Depending on the outcome, the court then may modify or not modify the decree as appropriate.

I.Adjudication of Parentage

¶ 13 Under the Parentage Act, “[a] man is presumed to be the father of a child if ... he and the mother of the child are married to each other and the child is born during the marriage.”Utah Code Ann. § 78B–15–204(1)(a)(LexisNexis 2012).This presumption arises automatically upon the child's birth and remains in effect “until that status is rebutted or confirmed as set forth in [the Parentage Act].”Id.§ 78B–15–102(20)(defining “[p]resumed father” as “a man, who by operation of law under [the Parentage Act], is recognized as the father of a child until that status is rebutted or confirmed as set forth in [the Parentage Act]”);see alsoR.P. v. K.S.W.,2014 UT App 38, ¶ 12, 320 P.3d 1084(explaining that when “a man ... ‘and the mother of the child are married to each other and a child is born during the marriage,’ ” a presumption arises that the man is the child's legal father(quotingUtah Code Ann. § 78B–15–204(1)(a) )).Once established, this presumption can be challenged only “by the presumed father or the mother” during the course of the marriage or “in the pleadings at the time of the [parties'] divorce.”Utah Code Ann. § 78B–15–607(1).To successfully rebut the presumption of paternity, the challenging party must provide

(a) genetic test results that exclude the presumed father;

(b) genetic test results that rebuttably identify another man as the father in accordance with [another section of the Parentage Act];(c) evidence that the presumed father and the mother of the child neither cohabited nor engaged in sexual intercourse with each other during the probable time of conception; or

(d) an adjudication under this part.

Id.§ 78B–15–607(3).When the...