Rydberg v. Rydberg

Decision Date13 April 2004
Docket NumberNo. 20030212.,20030212.
PartiesDiane L. RYDBERG, Daniel P. Richter, Director, and Ward County Social Service Board, Plaintiffs and Appellants v. Andrew G. RYDBERG, Defendant and Appellee.
CourtNorth Dakota Supreme Court

Tina M. Heinrich (argued), Assistant State's Attorney, and Lisa J. Zastrow (appeared), Assistant State's Attorney, Minot, N.D., for plaintiffs and appellants.

Faron E. Terry, Terry Law Office, Minot, N.D., for defendant and appellee.

SANDSTROM, Justice.

[¶ 1] The Ward County Social Service Board is appealing a Northwest Judicial District Court order dismissing a child support action against Andrew Rydberg because DNA testing excluded him as the father of Diane Rydberg's child. The Board argues that because Andrew Rydberg did not rebut the presumption of paternity, the district court erred when it dismissed the child support action. The Board also argues the district court erred because it did not consider the best interests of the child involved and no guardian ad litem was appointed. We affirm, concluding the district court did not err in dismissing the child support action.

I

[¶ 2] On March 9, 1992, Diane Rydberg gave birth to a child. On March 10, 1992, Andrew Rydberg acknowledged in writing that he was the father of the child. The parties were married on July 22, 1994, and separated in April 2002. In May 2002, the Ward County Social Service Board brought an action for child support against Andrew Rydberg. The Board is a real party in interest under N.D.C.C. § 14-09-09.26 for the purposes of establishing paternity and of securing repayment of benefits paid, future support, and costs in this action. See Sprynczynatyk v. Celley, 486 N.W.2d 230, 231-32 (N.D.1992)

. After the action for child support was brought, Andrew Rydberg denied he was the child's biological father and asked that the case be dismissed. In his answer, he stated that if the case were not dismissed, he would request genetic testing. He subsequently requested genetic testing for the purpose of proving the nonexistence of a parent-child relationship. On September 23, 2002, a hearing was held on the request for genetic testing. On October 18, 2002, the district court ordered Diane Rydberg, Andrew Rydberg, and the child to submit to genetic testing. The district court found DNA testing excluded Andrew Rydberg as the father of Diane Rydberg's child. On the basis of the DNA testing, the district court dismissed the case with prejudice. The Board moved for reconsideration of the district court's order. The district court, finding the paternity evidence was clear that Andrew Rydberg was not the father of the child, denied the motion.

[¶ 3] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 4] The Ward Country Social Service Board argues Andrew Rydberg was the presumed father of the child and failed to rebut this presumption.

A

[¶ 5] Andrew Rydberg argues the Ward County Social Service Board is prevented from raising this issue on appeal because it did not raise it in its motion to alter or amend the judgment under N.D.R.Civ.P. 59(j). Andrew Rydberg argues that issues on appeal should be restricted to those raised in a motion to alter or amend the judgment. We previously addressed this issue in In re N.C.C., in which we concluded that a motion under N.D.R.Civ.P. 59(j), unlike a motion for a new trial under N.D.R.Civ.P. 59(b), does not limit the issues on appeal to those presented in the motion. In re N.C.C., 2000 ND 129, ¶ 12, 612 N.W.2d 561. We will not, however, consider issues that were not raised at the district court. See Owens v. State, 1998 ND 106, ¶ 50, 578 N.W.2d 542

(we will not consider issues raised for the first time on appeal).

[¶ 6] The Board moved to alter or amend the judgment under N.D.R.Civ.P. 59(j). In its motion, the Board argued that Andrew Rydberg was precluded from rebutting the presumption of paternity. This is one basis for the Board's argument that Andrew Rydberg failed to rebut the presumption of paternity. This issue was presented to the district court during the hearing regarding genetic tests. The Board also argued to the district court that if genetic tests were positive, the best interests of the child should be determined. This is another basis for the Board's argument that Andrew Rydberg has not rebutted the presumption of paternity. We conclude the Board is not prevented from raising this issue on appeal.

B

[¶ 7] The Ward County Social Service Board argues that a presumption of paternity was created under N.D.C.C. § 14-17-04(1)(e), (1)(c)(1), and (1)(d). It argues this presumption cannot be rebutted because the statute of limitations to rebut the presumption of paternity has run and because genetic tests alone should not be enough to rebut the presumption of paternity.

[¶ 8] Section 14-17-04(1)(e), N.D.C.C., provides:

1. A man is presumed to be the biological father of a child if:
....

e. The man acknowledges the man's paternity of the child in a writing filed with the division of vital statistics of the state department of health, which shall promptly inform the mother of the filing of the acknowledgment, and the mother does not dispute the acknowledgment within a reasonable time after being informed of the acknowledgment, in a writing filed with the division of vital statistics of the state department of health. If another man is presumed under this section to be the child's father, acknowledgment may be effected only with the written consent of the presumed father or after the presumption has been rebutted.

Section 14-17-04(1)(c)(1), N.D.C.C., provides:

1. A man is presumed to be the biological father of a child if:
....

c. After the child's birth, that man and the child's biological mother have married or attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:

(1) The man has acknowledged the man's paternity of the child in writing filed with the division of vital statistics of the state department of health.

Section 14-17-04(1)(d), N.D.C.C., provides:

1. A man is presumed to be the biological father of a child if:
....

d. While the child is under the age of majority, the man receives the child into the man's home and openly holds out the child as the man's biological child.

[¶ 9] One day after the birth of Diane Rydberg's child, Andrew Rydberg acknowledged paternity in a writing filed with the division of vital statistics of the State Department of Health. After the child's birth, Andrew Rydberg and the child's biological mother, Diane Rydberg, married. The couple lived together with the child during the marriage. Andrew Rydberg does not dispute that a presumption of paternity was created.

[¶ 10] "`Issues involving the application and interpretation of statutes are questions of law fully reviewable by this Court.'" Guardianship of Shatzka, 2003 ND 147, ¶ 5, 669 N.W.2d 95 (quoting Public Serv. Comm'n v. Wimbledon Grain Co., 2003 ND 104, ¶ 20, 663 N.W.2d 186). In construing statutes, it is the Court's duty to ascertain the Legislature's intent. N.D.C.C. §§ 1-02-02 and 1-02-03. Words in a statute are to be understood in their ordinary sense. Public Serv. Comm'n v. Wimbledon Grain Co., 2003 ND 104, ¶ 20, 663 N.W.2d 186. Words must be given their plain, ordinary, and commonly understood meaning. Reed v. Hillsboro Pub. Sch. Dist. No. 9, 477 N.W.2d 237, 240 (N.D.1991). "We construe statutes as a whole and harmonize them to give meaning to related provisions." Shatzka, at ¶ 5.

[¶ 11] The Ward County Social Service Board argues the presumption of paternity was not rebutted within the time frame allowed by N.D.C.C. § 14-17-05(1)(b), which provides:

1. A child, the child's biological mother, or a man presumed to be the child's father under subdivision a, b, or c of subsection 1 of section 14-17-04, may bring an action:

....

b. For the purpose of declaring the nonexistence of the father and child relationship presumed under subdivision a, b, or c of subsection 1 of section 14-17-04 only if the action is brought within a reasonable time after obtaining knowledge of relevant facts, but in no event later than five years after the child's birth. After the presumption has been rebutted, paternity of the child by another man may be determined in the same action, if that man has been made a party.

[¶ 12] Section 14-17-05(2), N.D.C.C., provides that if paternity was presumed under subdivision d, e, or f of subsection 1 of section 14-17-04, an action can be brought at any time to determine the existence or nonexistence of the father and child relationship.

[¶ 13] Although the statute of limitations to rebut the presumption created under section 14-17-04(1)(c) has passed, N.D.C.C. § 14-17-05(1)(b), section 6(a)(2) of the Uniform Parentage Act ("U.P.A."), does not preclude an assertion of nonpaternity as a defense to the presumptive father in another action. Interest of K.B., 490 N.W.2d 715, 717 (N.D.1992). Nonexistence of the father and child relationship can be asserted as a defense after the five years have passed. See id.

[¶ 14] North Dakota distinguishes between bringing an action and asserting a defense for the purposes of this statute. Few other states that have adopted the U.P.A. have addressed this distinction. In Alabama, there is no statute of limitations to claiming nonexistence of paternity; therefore, a man can claim the nonexistence of paternity at any time, even if presumed to be the father. See J.N.H. v. N.T.H. II, 705 So.2d 448, 452 (Ala.Civ.App. 1997)

. Missouri, however, specifically mentions that the five-year statute of limitations forecloses a defense of nonpaternity by the presumed father. Missouri Div. of Child Support Enforcement v....

To continue reading

Request your trial
3 cases
  • Cudworth v. Midcontinent Communications
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • August 23, 2004
    ...intent, neither of which exists here, we give statutory terms their "plain, ordinary, and commonly understood meaning." Rydberg v. Rydberg, 678 N.W.2d 534, 537 (N.D.2004). The term "malicious" typically means "given to, marked by, or arising from malice," and "malice" most commonly connotes......
  • Rojas v. Workforce Safety and Ins.
    • United States
    • North Dakota Supreme Court
    • October 23, 2006
    ...administrative agency. [¶ 13] The application and interpretation of statutes are questions of law fully reviewable by this Court. Rydberg v. Rydberg, 2004 ND 73, ¶ 10, 678 N.W.2d 534. The primary objective in interpreting a statute is to determine the Legislature's intent. BASF Corp. v. Sym......
  • A.W. v. A.K.
    • United States
    • North Dakota Supreme Court
    • August 31, 2010
    ...a putative biological father to avoid his duty to support his children. In re K.B., 490 N.W.2d 715, 717-18 (N.D.1992); see also Rydberg v. Rydberg, 2004 ND 73, ¶¶ 15, 18, 678 N.W.2d 534. [¶ 7] In K.B., a presumed father was declared not to be the father in proceedings thirteen years after t......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT