Rk v. State ex rel. Natrona County

• Decision Date: 08 January 2008
• Docket Number: No. S-07-0072.,S-07-0072.
• Citation: 2008 WY 1,174 P.3d 166
• Parties: RK, Appellant (Defendant), v. The STATE of Wyoming, ex rel., NATRONA COUNTY CHILD SUPPORT ENFORCEMENT DEPARTMENT, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

174 P.3d 166

2008 WY 1

RK, Appellant (Defendant), v. The STATE of Wyoming, ex rel., NATRONA COUNTY CHILD SUPPORT ENFORCEMENT DEPARTMENT, Appellee (Plaintiff).

No. S-07-0072.

Supreme Court of Wyoming.

January 8, 2008.

Representing Appellant: Larry R. Clapp and Scott J. Olheiser, Clapp & Associates, PC, Casper, Wyoming. Argument by Mr. Olheiser.

Representing Appellee: Patrick J. Crank, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Ellen Rutledge, Assistant Attorney General. Argument by Ms. Rutledge.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

BURKE, Justice.

[¶ 1] Appellant RK challenges the district court's order establishing his paternity of MJ. We affirm.

ISSUES

[¶ 2] RK raises the following issues:

1. Did the district court commit error in 1993 by failing to enter an order dismissing this case as required by Wyo. Stat. Ann. § 14-2-111(f) (LexisNexis Supp.1992) subsequent to a certified paternity test authenticated and filed in the record demonstrating that the appellant cannot be the biological father of the minor child?

2. Did the district court commit error by allowing this matter to be reopened as an active case subsequent to the expiration of the statute of limitations pursuant to Wyo. Stat. Ann. § 14-2-105(a)(ii) stating that "[a]n action to establish the existence of the father and child relationship . . . may be brought: [n]ot later than five (5) years after the birth of the child"?

3. Did the district court abuse its discretion in failing to require the Appellee to show that the genetic test that excluded the Appellant from paternity was rebutted by clear and convincing evidence?

4. Did the district court err in applying parentage statutes currently in effect as opposed to the law in effect at the time the action was commenced?

a. Did the district court apply the incorrect statutory standard by refusing to allow evidence of another paternity test concerning the paternity of the minor child in this matter?

b. Did the district court err in failing to weigh evidence in the form of testimony from a geneticist concerning the validity of the paternity tests and the genetic markers which were tested?

FACTS

[¶ 3] DJ gave birth to MJ in October 1989, in Casper, Wyoming, and later moved to Oregon. After she filed the appropriate paperwork in the State of Oregon, that state requested the State of Wyoming to initiate proceedings to determine paternity and establish child support pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA).¹ The State of Wyoming filed the URESA petition against RK in 1991.² The petition alleged that RK was MJ's father and requested an adjudication of paternity and an order of support. RK denied paternity of MJ.

[¶ 4] In early 1993, RK submitted to a genetic test to determine paternity. The laboratory result was filed with the district court on June 7, 1993, and excluded RK as MJ's father. We refer to the 1993 test as "Test 1." Although the test apparently excluded RK as the father, the paternity action remained pending. No significant activity occurred in the case until August 1994 when the court received a new paternity report accompanied by a letter from the laboratory revealing that it had uncovered a "discrepancy in the conclusions" in Test 1. A second letter from the laboratory explained that it had accidentally switched the genetic samples that made up the RK-DJ-MJ test with samples from a different trio. When it discovered the error, the laboratory re-ran the genetic test and concluded that RK could not be excluded as MJ's father. We refer to the 1994 test as "Test 2." Test 2 revealed a 99.99% probability of paternity.

[¶ 5] In response to the laboratory's letter and Test 2 results, the State moved to require additional genetic testing. RK filed a Motion for Protective Order and Motion for Entry of Judgment Nunc Pro Tunc.³ RK's motion asked that the district court "enter a Judgment Nunc Pro Tunc in compliance with the Paternity Evaluation Report filed with the Court on June 7, 1993, and further, that the Court enter a Protective Order barring the State from any further proceeding against the Defendant." The district court denied RK's motion and ordered an additional genetic test to be performed at RK's option and paid for by the State.

[¶ 6] The next case activity occurred in February 1999, when the State filed a Petition to Establish Child Support and Medical Support Obligation. RK responded with his claim that he had requested the additional testing, but that it never took place. After a hearing, the district court ordered additional genetic testing pursuant to its 1995 order. RK was tested and the result was filed with the court in December 1999. The report stated that RK could not be excluded as MJ's father and that the probability of paternity was 99.99%. We refer to the 1999 test as "Test 3."

[¶ 7] Following Test 3, there was no substantive case activity in RK's paternity matter until March 2003, when the State requested a hearing. After that hearing and subsequent discovery, RK filed a "rebuttal" to the genetic test results, with a supporting affidavit from "an expert in genetic testing." In December 2003, the parties stipulated that RK would be allowed to arrange for yet another genetic test using the methodology recommended by his genetic expert, at his own expense. If the 2003 genetic test took place, it is not reflected in the record.

[¶ 8] The district court held a final hearing on October 12, 2006. At that hearing, RK's general strategy was to impeach the genetic test results by introducing the testimony of an expert, Ms. Kim Gorman. The district court relied on Wyo. Stat. Ann. § 14-2-705(b) and ruled that Ms. Gorman could not testify.⁴ At the conclusion of the hearing, RK presented an offer of proof by putting Ms. Gorman's proposed testimony on the record.⁵ Ms. Gorman testified that Tests 2 and 3 did not adequately rebut the exclusionary results in Test 1. The reason, she explained, was that Tests 2 and 3 did not examine the same genetic marker that had initially excluded RK as MJ's father in Test 1. Ms. Gorman posited that without testing that same genetic marker, one of RK's close relatives could turn out to be MJ's father, rather than RK himself. Ms. Gorman did not discuss the laboratory's disclosure that Test 1 involved the wrong trio of subjects. After the hearing, the district court entered an order establishing RK as MJ's father. RK now appeals the district court's paternity order.

DISCUSSION

Dismissal After Test 1

[¶ 9] RK's primary contention is that the genetic testing statute in effect in 1992 required the district court, sua sponte, to dismiss the suit on receipt of the Test 1 results. Further, RK claims that the paternity suit "should have been dismissed against [RK], by operation of mandated law and without any further consideration or hearing." We disagree.

[¶ 10] RK's assertion presents an issue of statutory interpretation, which we consider de novo. Worcester v. State, 2001 WY 82, ¶ 13, 30 P.3d 47, 52 (Wyo.2001). When conducting a de novo evaluation, we afford no deference to the district court's interpretation of the statute. Id. In conducting our statutory analysis we are guided by the following standard:

The paramount consideration is to determine the legislature's intent, which must be ascertained initially and primarily from the words used in the statute. State ex rel. State Department of Revenue v. Union Pac. R.R. Co., 2003 WY 54, ¶ 12, 67 P.3d 1176, 1182 (Wyo.2003). We look first to the plain and ordinary meaning of the words to determine if the statute is ambiguous. Id. A statute is clear and unambiguous if its wording is such that reasonable persons are able to agree on its meaning with consistency and predictability. Conversely, a statute is ambiguous if it is found to be vague or uncertain and subject to varying interpretations. Id. If we determine that a statute is clear and unambiguous, we give effect to the plain language of the statute. Petroleum Inc. v. State Bd. of Equalization, 983 P.2d 1237, 1240 (Wyo.1999).

RME Petroleum Co. v. Wyo. Dep't of Rev., 2007 WY 16, ¶ 25, 150 P.3d 673, 683 (Wyo. 2007).

[¶ 11] RK relies on the language of Wyo. Stat. Ann. § 14-2-111(f), in effect in 1992 when the paternity suit was commenced. That statute states:

If the scientific evidence resulting from the genetic tests conclusively shows that the defendant could not have been the father, the action shall be dismissed, and the defendant shall be refunded all monies ordered paid by him as child support from the mother of the child.

Wyo. Stat. Ann. § 14-2-111(f) (LexisNexis Supp.1992).

[¶ 12] RK contends that the phrase, "the action shall be dismissed," in section 14-2-111(f) affirmatively requires the trial court to dismiss the action, even when no litigant moves for the action's dismissal. Alternatively, he claims that the paternity action was terminated by operation of law when Test 1 was filed with the district court. RK relies on several cases in which we have accorded mandatory effect to the word "shall" when it appears in a statute. E.g., LePage v. State of Wyo., Dep't of Health, 2001 WY 26, 18 P.3d 1177, 1180 (Wyo.2001); Mayland v. State, 568 P.2d 897, 899 (Wyo.1977). In LePage, for example, we stated that "[w]here a statute uses the mandatory language `shall,' a court must obey the statute as a court has no right to make the law contrary to what is prescribed by the legislature." ¶ 11, 18 P.3d at 1180.

[¶ 13] The cases relied upon by RK do not, however, establish that the plain language of Wyo. Stat. Ann. § 14-2-111(f) mandates dismissal in the absence of an appropriate motion. The statute does not establish a timeframe for dismissal, nor does the statute require the district court to dismiss paternity cases on its own initiative. There was nothing to prevent RK from filing a motion to dismiss the paternity...