Marriage of T, In re

• Decision Date: 11 January 1993
• Docket Number: No. 26267-0-I,26267-0-I
• Citation: 68 Wn.App. 329,842 P.2d 1010
• Parties: In re the MARRIAGE OF T 1
• Court: Washington Court of Appeals

Page 329

68 Wn.App. 329

842 P.2d 1010

In re the MARRIAGE OF T ¹

No. 26267-0-I.

Court of Appeals of Washington Division 1.

Jan. 11, 1993.

John S. Mills, Tacoma, for Mr. T.

Pamela D.O. Larson, Kirkland, for Mrs. T.

Ralph W. Moldauer, Lawrence Moldauer & Marshall, Bellevue, for minor.

AGID, Judge.

Mr. T appeals the trial court's denial of his request for attorney fees relating to a paternity action initiated by Mrs. T in connection with the dissolution of their marriage. He also asks this court to review two of the trial court's rulings in that paternity action.

Mr. and Mrs. T were married on October 27, 1986. Mrs. T was pregnant at the time of their marriage and their child, B, was born on June 1, 1987. Mr. and Mrs. T separated in May 1988. In June, Mrs. T filed a petition for dissolution in which she declared for the first time that B was not the natural child of Mr. T. Mrs. T then filed a motion requesting that Mr. T be ordered to take a blood test to establish that he was not B's father. Based on the recommendation of the guardian ad litem, the court refused to grant the order until after the putative father had been tested. The court reasoned that it was not in B's best interest to eliminate Mr. T as the father before establishing paternity in any other individual.

Mrs. T thereupon filed an amended petition alleging that B's natural father was Mr. G, a man with whom she had been involved prior to her marriage while she was also dating Mr. T. Mr. G denied the claim and insisted that he had not had sexual relations with Mrs. T during the relevant period. Mr. G has not had any contact with B and wants none even if he is B's biological father. Mrs. T nevertheless filed a motion for an order requiring Mr. G to take a blood test.

Mr. T, B's presumptive father, has resisted Mrs. T's efforts to disestablish his paternity from the beginning. ² He joined Mr. G in contesting Mrs. T's motion for an order requiring Mr. G to take a blood test and requested a full evidentiary hearing prior to the issuance of that order. The court denied the request for a full evidentiary hearing and granted the order. Mr. T's motion to dismiss the paternity claims as time-barred was also denied. Mr. G filed an interlocutory appeal challenging both the order requiring him to take a blood test and the trial court's denial of Mr. T's motion to dismiss the paternity action as time-barred. Mr. T joined in that appeal by filing a motion for discretionary review, which was denied. Mr. G subsequently withdrew his appeal and complied with the court's order requiring him to submit to a blood test.

The case was subsequently bifurcated to permit resolution of the paternity question prior to consideration of the remaining issues in the dissolution. In accordance with the recommendation of the guardian ad litem, Judge Pro Tem Paul Seligmann granted a pretrial motion to dismiss the paternity claim as contrary to B's best interests. The remaining issues were resolved following trial before Judge Joan DuBuque. Judge DuBuque declined to award attorney fees to either party and ordered that Mrs. T pay certain fees and costs of the guardian ad litem. This appeal followed.

I.

Mr. T first contends that the trial court erred in concluding that RCW 26.09.140 provided the only basis on which attorney fees could be granted and in failing to consider RCW 26.26.140 as a basis for an attorney fee award. ³ RCW 26.09.140 provides in pertinent part:

The court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for reasonable attorney's fees or other professional fees in connection therewith....

An award of attorney fees under RCW 26.09.140 is reviewable only for abuse of the trial court's discretion. In re Marriage of Nelson, 62 Wash.App. 515, 521, 814 P.2d 1208 (1991).

By contrast, RCW 26.26.140 provides in part:

The court may order reasonable fees of experts and the child's guardian ad litem, and other costs of the action, including blood test costs, to be paid by the parties in proportions and at times determined by the court. The court may order that all or a portion of a party's reasonable attorney's fees be paid by another party....

The language of this provision indicates that its application, too, is left to the discretion of the trial court. Because RCW 26.26.140 does not contain the language "after considering the financial resources of both parties" as RCW 26.09.140 does, the paternity statute does not require consideration of need or ability to pay in making an award. See In re Marriage of Hunter, 52 Wash.App. 265, 274 n. 5, 758 P.2d 1019 (1988), review denied, 112 Wash.2d 1006 (1989) (distinguishing RCW 26.18.160 from RCW 26.09.140 on the ground that it does not require an award of attorney fees be based upon a showing of one party's need or the other's ability to pay).

In this case, RCW 26.09.140 does not provide the only basis on which fees may be granted. RCW 26.09.140 applies only to proceedings under RCW 26.09. Hunter, 52 Wash.App. at 273 n. 4. While RCW 26.09 governs matters such as child custody, visitation and support that arise after paternity has been established, issues related to paternity itself are addressed by RCW 26.26. It is a basic rule of statutory construction that a specific provision controls over one that is general in nature. Miller v. Sybouts, 97 Wash.2d 445, 448, 645 P.2d 1082 (1982). Thus, the availability of an award of that portion of the attorney fees incurred in connection with the paternity action should have been considered under RCW 26.26.140. This includes attorney fees incurred by the presumptive father in protecting his rights under RCW 26.26, which were also affected by the paternity action. The question of whether such an award was appropriate is still, of course, within the trial court's discretion. However, as the prevailing party in the paternity action, the presumptive father was at least entitled to have his request for attorney fees under RCW 26.26.140 considered.

The trial court apparently assumed that the question of whether attorney fees should be awarded under RCW 26.26.140 would be resolved in the paternity proceeding. However, at the conclusion of the paternity proceeding, Judge Seligmann awarded no attorney fees and reserved all such issues for the trial court. Because no decision was made on the issue, the question of whether Mr. T should be awarded attorney fees under RCW 26.26.140 and the amount of any such fees is remanded to the trial court for determination.

II.

Mr. T next argues that the trial court erred by issuing an order requiring the putative father to submit to a blood test without first conducting a full evidentiary hearing. Before deciding that issue, however, we must determine whether a presumptive father has standing to challenge such an order. A person has standing to challenge a court order or other court action if his or her protectable interest is adversely affected thereby. Vovos v. Grant, 87 Wash.2d 697, 699, 555 P.2d 1343 (1976); Paris Am. Corp. v. McCausland, 52 Wash.App. 434, 438, 759 P.2d 1210 (1988), review denied, 111 Wash.2d 1034 (1989) (a party has standing to raise an issue if that party has a distinct and personal interest in the issue). The interest must be more, however, than simply the abstract interest of the general public in having others comply with the law. Vovos, 87 Wash.2d at 699, 555 P.2d 1343. Mr. T argues that he has standing to raise this issue because the order constituted a challenge to his presumptive paternity against which he was consequently obligated to defend. The putative father is clearly the party with the most direct interest in challenging the court's order. However, because Mr. T's interest is more than simply a general interest in having others comply with the law and because the paternity determination is a distinct and personal interest of the presumptive father in the outcome of the case, we conclude that Mr. T has standing to challenge the trial court's order.

The question remains, however, whether the underlying issue is moot. An issue is moot if a court can no longer provide effective relief and if the issue presented is purely academic. Yacobellis v. Bellingham, 55 Wash.App. 706, 709, 780 P.2d 272 (1989), review denied, 114 Wash.2d 1002, 788 P.2d 1077 (1990). While appellate courts normally will not decide a moot issue, the court may consider the issue if it is one of substantial public importance and is capable of evading review. DeFunis v. Odegaard, 84 Wash.2d 617, 627-28, 529 P.2d 438 (1974). Mr. G has already submitted to the blood test which was ordered and the paternity claims were ultimately dismissed. Because this court therefore cannot provide effective relief, the question is moot. Nevertheless, the issue is also one of substantial public importance implicating the due process rights of the presumptive father and the child. Consequently, we shall address the due process issue.

The type of hearing required under due process principles depends on consideration of three factors: (1) the private interest that will be affected by the official action; (2) the risk of erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the governmental interest in the matter. Mathews v. Eldridge, 424 U.S. 319, 321, 96 S.Ct. 893, 896, 47 L.Ed.2d 18 (1976). While we held in State ex rel. McGuire v. Howe, 44 Wash.App. 559, 567, 723 P.2d 452, review denied, 107 Wash.2d 1014 (1986), that a full evidentiary hearing is not required before a court may enter an order requiring a putative father to submit to blood tests, the circumstances of the instant case are distinguishable from those in Howe in several significant respects. First, in Howe, there was...