Randy AJ v. Norma IJ

• Decision Date: 07 April 2004
• Docket Number: No. 02-0469,02-0469
• Parties: Randy A. J., Petitioner-Respondent, v. Norma I. J., Respondent-Co-Appellant-Petitioner, Brendan B., Intervening-Respondent-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

2004 WI 41

677 NW 2d 630

Randy A. J., Petitioner-Respondent, v. Norma I. J., Respondent-Co-Appellant-Petitioner, Brendan B., Intervening-Respondent-Appellant-Petitioner.

Nos. 02-0469, 02-0469

Supreme Court of Wisconsin.

Oral Argument: September 16, 2003.

Opinion Filed: April 7, 2004.

For the respondent-co-appellant-petitioner there were briefs by Robert J. Welcenbach and Welcenbach & Widmann, Milwaukee, and oral argument by Robert J. Welcenbach

For the intervening-respondent-appellant-petitioner there were briefs by Vicki Zick and Zick & Weber Law Offices, LLP, Johnson Creek, and oral argument by Jennifer L. Weber.

For the petitioner-respondent there was a brief by Matthew J. Price, Loeb & Herman, S.C., Milwaukee, Virginia M. Stuller, Carr, Kulkoski & Stuller, S.C., New Berlin, and oral argument by Matthew J. Price.

An amicus curiae brief was filed by D. Byron Goltz, Peter M. Koneazny, Milwaukee, on behalf of the Legal Aid Society of Milwaukee, Inc.

¶1. PATIENCE D. ROGGENSACK, J.

This is a review of a published decision of the court of appeals that affirmed the judgment of the Circuit Court for Waukesha County, Lee S. Dreyfus, Jr., Judge, confirming Randy A.J. as the father of Selena J.

¶2. Norma I.J. and Brendan B. contend that the previous court decisions were erroneous because Brendan has a constitutionally protected interest in asserting his paternity of Selena based on genetic tests that show a probability of 99.99% that he is her biological father. They assert the circuit court erred in applying the best interest of the child test under Wis. Stat. § 767.463 (1999-2000)¹ to override his interest as the putative father and the court of appeals erred in using the equitable parent doctrine to affirm the judgment of the circuit court. We conclude that any interest Brendan has in asserting his paternity is not a constitutionally protected interest because he has failed to establish a substantial relationship with Selena. We also conclude that § 767.463 cannot be employed once genetic tests have been completed and that the equitable parent doctrine should not be used in paternity determinations. However, because we also conclude that Norma and Brendan are equitably estopped from asserting the genetic test results as proof to rebut the marital child presumption found in Wis. Stat. § 891.41, that presumption remains intact. Accordingly, we affirm the judgment insofar as it concludes that Selena is Randy's child and he is her father. We also affirm the dismissal of Norma and Brendan's claims in regard to Selena's paternity.

I. BACKGROUND

¶3. Randy A.J. and Norma I.J. were married on May 11, 1990. On January 24, 1998, Norma gave birth to a daughter, Selena J. Randy paid all of Selena's birthing expenses and is listed as Selena's father on her birth certificate. However, during the conceptive period, Norma was involved in an adulterous relationship with Brendan B., of which Randy had no knowledge.

¶4. Both before and after Selena's birth, Norma saw Brendan several weekends a month when she traveled to Chicago, Illinois, for what she told Randy were modeling jobs for Saks Fifth Avenue. After Selena's birth, Randy continued to pay all of her expenses and to provide a home for her and Norma in Wisconsin. Notwithstanding Norma's reliance on Randy, she did have discussions with Brendan during the pregnancy and after Selena's birth that Brendan might be Selena's biological father.

¶5. In 1999, Norma was convicted of embezzlement, and on May 10, 1999, she was sentenced to eight years in prison. It was only then that she told Randy that he might not be Selena's biological father. Until that time, Randy had no thought that he had not fathered Selena.

¶6. On August 25, 1999, Brendan filed a paternity action in Illinois, seeking to have an Illinois court declare him to be Selena's father. Randy, who was living in Wisconsin with Selena, was served with a copy of that action.

¶7. On September 23, 1999, Randy filed for divorce in Wisconsin, wherein he requested sole legal custody and physical placement of Selena. On October 14, 1999, a temporary custody hearing was held, and although Brendan had been provided with notice, he did not appear. At that hearing, the court commissioner ordered Brendan to have no contact with Selena and granted temporary sole custody to Randy. On December 6, 1999, Norma counterclaimed, asserting that Selena was not Randy's child and requesting genetic testing. Randy opposed genetic tests. He claimed that he is presumed to be Selena's father and that it is not in her best interest to have a genetic determination of paternity.

¶8. On September 22, 2000, for reasons that are not reflected in the record before us, Randy stipulated to an order for genetic tests of Selena, Norma and Brendan, conditioned upon "reserving his right to contest final adjudication of the legal father." On September 26, 2000, the circuit court ordered tests that established a probability of 99.99% that Brendan is Selena's biological father.²

¶9. On March 5, 2001, again upon a stipulation of the parties, Brendan was permitted to intervene in the divorce action. He asserted that he had tried to have his paternity determined in Illinois, but that the action was dismissed on March 20, 2000, for lack of personal jurisdiction. He asked to have Selena declared his child.

¶10. The issue of paternity was tried to the court. It concluded that: (1) Norma was equitably estopped from raising Selena's paternity; (2) Brendan was not equitably estopped; (3) Brendan failed to rebut the marital presumption of Wis. Stat. § 891.41; (4) Wis. Stat. § 767.463 applies to this case; and (5) it is in the best interest of Selena to adjudicate Randy as her legal father. Accordingly, the circuit court dismissed Brendan from the divorce action and dismissed Norma's counterclaim insofar as it related to paternity.

¶11. On appeal, the court upheld the circuit court's decision adjudicating Randy as Selena's father, but it did so on different grounds. First, it agreed that Norma was equitably estopped from asserting Brendan's paternity. Second, it concluded that neither Wis. Stat. § 767.458(1m) nor Wis. Stat. § 767.463 was applicable because the genetic tests had already been completed and those statutes may be employed only when genetic tests have not been done. Third, it concluded that the genetic tests had enabled Brendan to rebut the marital presumption set out in Wis. Stat. § 891.41. However, the court also concluded that rebutting the marital presumption merely entitled Brendan to a rebuttal presumption of paternity pursuant to Wis. Stat. § 767.48(1m) that the equitable parent doctrine overcame under the facts of this case. Fourth, it concluded that it was in Selena's best interest to adjudicate Randy as her father, and it affirmed the circuit court's judgment. Brendan and Norma petitioned this court for review, which we granted.

II. DISCUSSION

A. Standard of Review

¶12. This case presents questions of constitutional and statutory interpretation. When we review the constitutional protections that Brendan claims apply to his putative parental status, we do so as a question of law. See W.W.W. v. M.C.S., 161 Wis. 2d 1015, 1026, 468 N.W.2d 719 (1991). The interpretation of statutes and their applications to uncontested facts are questions of law that we review independent of the court of appeals. See VanCleve v. City of Marinette, 2003 WI 2, ¶17, 258 Wis. 2d 80, 655 N.W.2d 113. And finally, where the material facts are uncontested, we review whether equitable estoppel lies de novo. Milas v. Labor Ass'n of Wisconsin, Inc., 214 Wis. 2d 1, 8, 571 N.W.2d 656 (1997).

B. The Parties' Positions

¶13. Norma does not dispute the court of appeals conclusion that she is equitably estopped from asserting Brendan's paternity. Instead, she focuses on its use of the equitable parent doctrine, as does Brendan, arguing that it was erroneous because the genetic tests overcame the marital presumption of Wis. Stat. § 891.41. Both she and Brendan also argue that the equitable parent doctrine should not be used to overturn what they assert are parental rights of a constitutional dimension.

¶14. On the other hand, Randy and Selena argue that portions of both the circuit court and the court of appeals decisions were correct. They contend that Brendan has no constitutionally protected interest at issue. They also contend that the circuit court was correct in concluding that even when genetic tests have been completed, Wis. Stat. § 767.463 may be used to dismiss a paternity action, if the circuit court determines that to do so is in the child's best interest. And finally, they contend that the court of appeals was correct in its use of estoppel³ and the equitable parent doctrine.

C. Constitutional Underpinnings of Parental Rights

¶15. Brendan has asserted that the genetic test results, when combined with his visits with Selena until she was fifteen months old, give him a substantive due process liberty interest in his putative status as Selena's father. The circuit court found that Brendan did not support Selena emotionally or financially; that occasionally buying formula and diapers was insufficient to show his assumption of parental responsibility, as was his failure to assert parental rights either at her birth or at the court hearing in October of 1999 when all of this could have been addressed. Based on these findings, the circuit court concluded Brendan did not have a constitutionally protected interest in his putative paternity. Accordingly, we begin with a review of the jurisprudence bearing on the protections that may be afforded Brendan's putative parental rights.

¶16. A parent has a constitutionally protected liberty interest in the "companionship, care, custody, and management of his or her children." Stanley v. Illinois, 405 U.S. 645, 651 (1972). However, parental status that rises to the level of a constitutionally protected liberty interest does...