LC v. TL, s. 93-135

• Decision Date: 15 March 1994
• Docket Number: 93-136,Nos. 93-135,s. 93-135
• Citation: 870 P.2d 374
• Parties: LC, Appellant (Plaintiff), v. TL, L, and TJ, a Minor Child, Appellees (Defendants). L and TL, Appellants (Defendants), v. LC, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 374

870 P.2d 374

LC, Appellant (Plaintiff), v. TL, L, and TJ, a Minor Child, Appellees (Defendants).

L and TL, Appellants (Defendants), v. LC, Appellee (Plaintiff).

Nos. 93-135, 93-136.

Supreme Court of Wyoming.

March 15, 1994.

Dennis M. Grant, Cheyenne, for appellant.

Franklin D. Bayless, Bayless & Slater, Cheyenne, for appellees.

Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.

CARDINE, Justice.

Appellant ("LC") brought this action, No. 93-135, against TL, her ex-husband ("L"), and TJ, TL's child, to establish his paternity to the child. The district court concluded that LC lacked standing to bring the action and dismissed his complaint with prejudice. LC appeals that decision. In a cross-appeal, No. 93-136, L and TL appeal the district court's denial of attorney fees.

We affirm the district court in both appeals.

LC raises the following issues:

Did the district court err in dismissing the appellant's complaint for paternity with prejudice?

Is the case rendered moot because of the amendment of Wyoming Statute § 14-2-104(c)?

Did the district court err in determining that the appellant had no standing to pursue paternity as a presumed father pursuant to Wyoming Statute § 14-2-102(a)(iv)?

Did the district court err in denying the appellant a hearing to establish paternity and thereby denying the appellant due process and equal protection under the United States and Wyoming Constitutions?

In their cross-appeal, L and TL present the following issue:

Whether the district court erred in failing to award attorney fees to [L] and [TL], appellants, as against [LC], appellee, based upon W.S. 14-2-114 authorizing a court to order reasonable fees of counsel in paternity proceedings and/or pursuant to Rule 11, Wyoming Rules of Civil Procedure authorizing a court to award attorney fees because the pleadings are not well grounded in fact or law and are interposed for an improper purpose.

Ostensibly, this case comes to us as a dismissal for lack of standing. However, the record does not reveal whether the action was dismissed under W.R.C.P. 12(b)(6) or 41. LC believes that the dismissal was under Rule 41. We do not agree. The dismissal could not have been pursuant to 41(a), since that applies only to voluntary dismissals. This clearly was not a voluntary dismissal.

Rule 41(b) applies where the plaintiff has failed to: prosecute his claim, comply with the rules of civil procedure, or show that he has a right to relief after he has presented his evidence in a trial before a judge without a jury, none of which is applicable in this case. This action, therefore, was not dismissed pursuant to Rule 41.

This case is properly characterized as a dismissal under W.R.C.P. 12(b)(6) because the district court dismissed based upon the parties' pleadings and memoranda with no fact finding or evidentiary hearing having been held. When a motion to dismiss is determined upon matters outside of the pleadings, it is automatically converted to a summary judgment motion. See Stalkup v. State Dep't of Environmental Quality, 838 P.2d 705, 708-09 (Wyo.1992); Landmark, Inc. v. Stockmen's Bank & Trust Co., 680 P.2d 471, 474-75 (Wyo.1984). Here the district court considered matters outside of the pleadings and its decision, therefore, was a ruling under W.R.C.P. 56. Accordingly, we will use our well-established standard for summary judgment in our examination of this case.

FACTS

L and TL were married July 9, 1982. From April 1984 to February 1987, L, who was in the Air Force, was stationed in England. However, in September 1986, TL and their two sons returned to the United States. LC and TL began an intimate relationship in November of 1986, during TL and L's marriage. L had a vasectomy in September of 1986. L returned to Wyoming and stayed with TL during December of 1986 and January 1987. On September 11, 1987, TL gave birth to TJ.

TL and L separated in April 1988 and remained separated until their divorce. After separating from L, TL moved into an apartment with LC, where she and her children, including TJ, lived. L and TL were divorced on January 9, 1989, and L was ordered to pay child support for TJ. During the time LC and TL lived together, LC held TJ out to the world as his own child by: letting TJ and TL live in his apartment rent free, supervising and caring for TJ, providing clothing and other items, and introducing TJ as his son to other persons.

On September 16, 1987, five days after the birth of TJ, LC filed a paternity action. The action was subsequently dismissed without prejudice. After his break-up with TL, LC filed this action on April 30, 1992. LC claimed he was a presumed father by virtue of his having held TJ out to the world as his own son and, therefore, he was entitled to blood and DNA tests to prove his claim. The district court did not hold an evidentiary hearing; instead a hearing was held on a motion to dismiss by TL and L. The court granted the motion and ordered LC's complaint be dismissed with prejudice. In Case No. 93-135, LC has appealed that decision to this court.

L and TL moved for attorney fees under W.R.C.P. 11 and W.S. 14-2-114 (Cum.Supp.1993) because, they claimed, LC's suit was baseless. The district court denied their motion. They appeal that decision in Case No. 93-136.

STANDARD OF REVIEW

Our standard for the review of a summary judgment has been articulated by this court many times:

Summary judgment is proper when no genuine issues of material fact exist and the prevailing party is entitled to judgment as a matter of law. Baros v. Wells, 780 P.2d 341 (Wyo.1989); Farr v. Link, 746 P.2d 431 (Wyo.1987).

"We review a summary judgment in the same light as the district court, using the same materials and following the same standards. We examine the record from the vantage point most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the record. A material fact is one which, if proved, would have the effect of establishing or refuting an essential element of the cause of action or defense asserted by the parties."

Wagner v. First Wyoming Bank, N.A. Laramie, 784 P.2d 224, 226 (Wyo.1989) (citations omitted).

Kilmer v. Citicorp Mortgage, Inc., 860 P.2d 1165, 1167 (Wyo.1993) (quoting Husman, Inc. v. Triton Coal Co., 809 P.2d 796, 798-99 (Wyo.1991), appeal after remand, 846 P.2d 664 (Wyo.1993)).

DISCUSSION

I. CASE NO. 93-135

As a preliminary matter, we note that several of the paternity statutes located at W.S. 14-2-101 to 14-2-120 were amended after this action had commenced. LC asserts that the amendment to W.S. 14-2-104(c) (Cum.Supp.1993) confers standing on him, even though the amendment did not take effect until after the district court had entered its order. Since we conclude that LC had standing under the act before it was amended, we need not decide this question.

The issue of standing is not complex. At common law a putative father could not bring a paternity action. CSP v. DDC, 842 P.2d 528, 531 (Wyo.1992); State by Dep't of Family Servs. v. Jennings, 818 P.2d 1149, 1150 (Wyo.1991). The statutory provisions Assuming that the facts alleged by LC are true, W.S. 14-2-102(a)(iv) (1986) and our prior case law, clearly give LC standing to bring this action. W.S. 14-2-102(a)(iv) provides:

contained in W.S. 14-2-101 to 14-2-120 ¹, the Wyoming Parentage Act, are the exclusive means for determining the paternity of a child and his natural father. CSP, at 531; AEI v. JDM, 758 P.2d 22, 23-4 (Wyo.1988). In A v. X, Y, and Z, 641 P.2d 1222 (Wyo.1982), we held that A had no standing to bring a paternity action because he was not a presumed father under any of the three possibilities set out in W.S. 14-2-102. Our prior cases, therefore, require a putative father, as a prerequisite to standing, to show that he has a presumption under one of the three possibilities contained in § 14-2-102. X, Y, and Z, at 1223.

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

* * * * * *

(iv) While the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child.

We look at the facts alleged in the light most favorable to the party who opposed summary judgment. LC has alleged sufficient facts in his pleadings and through the affidavits of other persons to support his contention that he received TJ into his home and held the child out as his own. Therefore, we must conclude that LC is entitled to the presumption provided in W.S. 14-2-102(a)(iv). Furthermore, W.S. 14-2-104(b) (1986) provides that:

[a]ny interested party may bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship presumed under W.S. 14-2-102(a)(iv).

Since LC is a presumed father of TJ, he has standing to maintain this action. See A v. X, Y, and Z, 641 P.2d at 1223.

Our finding that LC has standing does not end our inquiry. The district court based its dismissal on two alternative grounds contained in W.S. 14-2-102(b) (1986). The district provided in its order, the following:

4. It is not disputed that the Defendants, [L and TL] were married at the time [TJ] was conceived and born to [TL]. When the Defendants were divorced by this Court, on 9 January, 1989, under Docket 117, Number 53[,] [TJ] was determined by the divorce action to be a child of the marriage. Any presumption of the paternity of the child raised by [LC] is rebutted by W.S. § 14-2-102(b): "A presumption is rebutted by Court decree establishing paternity of the child by another man."

5. If the Court were to rely solely upon the presumption of paternity of the child in [L], as set out in § 14-2-102(a)(i), as against the presumption sought by [LC], the Court must also find that [L] is the father of [TJ], because the presumption which is "founded on the weightier considerations of policy and logic controls," § 14-2-102(b). * * *

6. Under...