Piel v. Piel, 68254

• Citation: 918 S.W.2d 373
• Decision Date: 26 March 1996
• Docket Number: No. 68254,68254
• Parties: John Elwin PIEL, III, Appellant, v. Julia Mae PIEL, Respondent.
• Court: Missouri Court of Appeals

Page 373

918 S.W.2d 373

John Elwin PIEL, III, Appellant, v. Julia Mae PIEL, Respondent.

No. 68254.

Missouri Court of Appeals,

Eastern District,

Division Three.

March 26, 1996.

Appeal from the Circuit Court of St. Louis County; Hon. Samuel J. Hais, Judge.

Alan W. Cohen, St. Louis, for appellant.

Sarah S. Pleban, St. Louis, Guardian Ad Litem.

Philip T. Ayers, Hazelwood, for respondent.

RHODES RUSSELL, Judge.

John Elwin Piel, III, ("Husband") appeals an order dissolving his marriage to Julia Mae Piel ("Wife") in which the trial court found that he was not the biological father of J.W.P. and ordered that he have no custody rights nor child support obligations. We reverse in part and remand.

Husband and Wife married on April 17, 1989, and separated on April 26, 1992. On June 6, 1990, Wife gave birth to J.W.P. After the petition for dissolution of marriage was filed on August 12, 1992, Wife gave birth to another child, J.R.P. on June 16, 1994.

In Wife's petition she requested that she be granted custody of J.W.P. and be awarded maintenance and child support. She stated that there was one child "born during the marriage." ¹ At the same time Wife also requested that a temporary restraining order be issued to prevent Husband from taking J.W.P. out of the state, which was granted by the court. In addition, Wife filed a motion for temporary maintenance and temporary child support.

Shortly thereafter, on November 12, 1992, Wife filed a motion for blood testing, stating therein that she did not believe Husband was the father of J.W.P. Blood tests were conducted on Husband, Wife and the child without objection. On February 12, 1993, Cynthia K. White, Ph.D., Associate Director of Roche Biomedical Laboratories, prepared a report excluding Husband as the biological father of J.W.P. All parties were notified of these results. The guardian ad litem ("GAL") was appointed to represent J.W.P. after allegations of abuse were made. The trial court directed the GAL to file a Petition for Determination of Paternity and Order of Child Custody and Child Support, pursuant to the Uniform Parentage Act ("UPA"), §§ 210.817-210.852 RSMo 1994. That petition named Bill Mays, a resident of Indiana, as the father of J.W.P. The summons was never served upon the putative father and no further action was taken on that petition.

A hearing on Wife's pendente lite motion was held on October 20, 1994. At that hearing Wife testified that Husband was not the father of J.W.P. She asserted that she had been separated from Husband at the time of J.W.P.'s conception and that Husband was aware that he was not the biological father when they reconciled. Wife also testified that Husband had physically abused her throughout the marriage and alleged that Husband had touched J.W.P. in inappropriate ways. A PDL order was issued on October 27, 1994, in which the trial court ordered Husband to pay a sum of $2,500 for maintenance and attorney's fees. Husband was not ordered to pay any temporary child support. ²

The case was tried on February 6, 1995. Wife again testified that Husband was not the father of J.W.P. The blood test results excluding Husband as J.W.P.'s father were admitted without objection. ³ Both Husband and Wife agreed that Husband was not the natural father of J.R.P. The trial court thereafter entered a Decree of Dissolution which included a finding that Husband was not the father of either J.W.P. or J.R.P. The court held that it was not in the best interest of J.W.P. to have any further contact with Husband and ordered that he have no right of temporary custody or visitation. No child support was ordered. Husband's motion for a new trial was denied and this appeal follows.

In the first point on appeal Husband argues that the trial court lacked authority to enter an order finding that Husband was not the biological father of J.W.P. Husband did not appeal the finding of non-paternity with regard to J.R.P. even though the child was born during the parties' marriage and he was, therefore, the presumed father of her as well. Wife also concedes that the trial court lacked jurisdiction to make a finding on the paternity issue, however she states that the case should be remanded for consideration under the UPA provisions. The GAL for J.W.P. and J.R.P. maintains that the trial court in a dissolution action does have the authority to make a finding that the presumed father is not the natural father and urges this court to affirm the decision. The GAL points out that the cases interpreting the UPA have dealt with actions to establish paternity, not non-paternity as in this case.

Husband relies on a number of appellate court decisions in this state which have found that the UPA is the exclusive method for determining paternity. P.L.K. v. D.R.K., 852 S.W.2d 366, 368 (Mo.App.1993); Poole Truck Lines, Inc. v. Coates, 833 S.W.2d 876, 878 (Mo.App.1992); Snead by Snead v. Cordes by Golding, 811 S.W.2d 391, 395 (Mo.App.1991). While none of those cases involved a court in a dissolution action finding that the presumed father was not the biological father, we agree with Husband and Wife that when paternity is contested in a dissolution action, the UPA should be followed to resolve the issue. ⁴

The UPA was adopted by Missouri in 1987. The purpose of the UPA was to establish a uniform method for determining paternity which would protect the rights of all parties involved, especially the children. State ex rel. Ford v. Wenskay, 824 S.W.2d 99, 100 (Mo.App.1992); Snead, 811 S.W.2d at 395. The UPA's procedures were not followed herein in that neither child was made a party to the action. For that reason, this case must be remanded for a determination of paternity in accordance with the requirements set forth under §§ 210.817-210.852 RSMo.1994. The parties, as originally directed to by the trial court, should file a petition pursuant to the UPA so as to authorize the trial court to make a determination of the paternity of both children.

In the second point on appeal Husband argues that the trial court was required to enter a finding that he was the biological father of J.W.P., based on alleged judicial...