Shepherd v. Scott
| Decision Date | 03 November 2014 |
| Docket Number | No. 60936,60936 |
| Parties | ZENDA MARIE SHEPHERD, Appellant, v. GENE EDMOND SCOTT, Respondent. |
| Court | Nevada Supreme Court |
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
This is an appeal from a district court order denying declaratory relief concerning respondent's paternity of the minor child. Eighth Judicial District Court, Family Court Division, Clark County; T. Arthur Ritchie, Jr., Judge.
Appellant filed the underlying action seeking a declaration that respondent is not the natural father of the parties' minor child. When the child was born to appellant's sister, respondent was listed as the father on the child's birth certificate. Thereafter, appellant filed a petition in the Nevada district court to adopt the child with her sister's consent and stated in the petition that respondent was the child's natural father. When the child was eight years old, the parties were divorced in California, and according to appellant, custody of the child was established in those proceedings. When the child was almost ten years old, appellant filed the underlying complaint for declaratory relief, seeking a declaration that respondent is not the child's natural father. The district court denied that request on the basis that appellant was barred from seeking such relief by the doctrine of judicial estoppel. This appeal followed.
Having considered appellant's opening brief and the record on appeal, we conclude that the district court properly denied appellant's request for declaratory relief.1 See Nevadans for Nev. v. Beers, 122 Nev. 930, 942, 142 P.3d 339, 347 (2006) (). The judicial estoppel doctrine generally applies when four factors are met: (1) a party has taken two inconsistent positions, (2) the party asserted those positions in judicial or quasi-judicial proceedings, (3) the party successfully asserted the first position, and (4) "the first position was not taken as a result of ignorance, fraud, or mistake." NOLM, LLC v. Cnty. of Clark, 120 Nev. 736, 743, 100 P.3d 658, 663 (2004) (internal quotation marks omitted). Not all factors must be met in order to successfully apply the doctrine. See Mainor v. Nault, 120 Nev. 750, 765, 101 P.3d 308, 318 (2004).
Appellant represented in her petition to adopt the child that respondent was the child's natural father and then requested to adopt the child as respondent's wife. Appellant did not assert below or on appeal that her representation regarding respondent's paternity in the adoption petition was a result of her ignorance, a fraud upon her, or her mistake. The evidence presented below established that the parties chose to hold respondent out as the child's natural father despite their knowledge thathe was not the child's natural father, in an effort to expedite the adoption proceedings, and thus, the doctrine of judicial estoppel is applicable here. See Sterling Builders, Inc. v. Fuhrman, 80 Nev. 543, 550, 396 P.2d 850, 854 (1964) (). While our dissenting colleague concludes that judicial estoppel was wrongly applied because respondent's paternity was not litigated in the adoption proceeding, Nevada authority clearly provides that once a party asserts that a fact is true in a pleading, the party is barred from denying the same fact in a subsequent proceeding. See Vaile v. Eighth Judicial Dist. Court, 118 Nev. 262, 273, 44 P.3d 506, 514 (2002); see also Sterling Builders, 80 Nev. at 549, 396 P.2d at 854 (). Moreover, respondent's paternity was a significant fact in the adoption proceeding because by asserting that respondent was the child's natural father, appellant did not have to obtain consent for the adoption from the child's true natural father. See NRS 127.040(1) (). Thus, as the factors for the application of the judicial estoppel doctrine are present here, we conclude that the district court properly concluded that appellant's request for declaratory relief was barred by judicial estoppel. See NOLM, 120 Nev. at 743, 100 P.3d at 663(providing that "[w]hether judicial estoppel applies is a question of law subject to de novo review"). Accordingly, we
ORDER the judgment of the district court AFFIRMED.2
/s/_________, J.
Parraguirre
/s/_________, J.
cc: Hon. T. Arthur Ritchie, Jr., District Judge, Family Court Division
Gene Edmond Scott
Eighth District Court Clerk
I would vacate the district court's order denying appellant's request for declaratory relief because the child was not properly made a party and because the doctrine of judicial estoppel does not apply where, as here, the prior inconsistent position was a matter of assumption that was neither debated by the parties nor decided by the court.
As an initial matter, when the underlying complaint for declaratory relief was filed, the child was, by statute, required to be made a party to an action to determine paternity and to be represented in such an action by a guardian other than the child's mother or father. NRS 126.101(1) (2007) (); see also Schwob v. Hemsath, 98 Nev. 293, 294, 646 P.2d 1212, 1212 (1982) (); St. Mary v. Damon, 129 Nev. ___, ___ n.4, 309 P.3d 1027, 1036 n.4 (2013) (). Although the underlying complaint named the child, he was not a party to the action because he was never served with process, see Albert D. Massi, Ltd. v. Bellmyre, 111 Nev. 1520, 1521, 908 P.2d 705, 706 (1995) (), and no guardian ad litem was appointed to represent him. True, after the entry of the district court's order, NRS 126.101(1) was amended to give the district court discretion as to whether the child should be joinedas a party and a guardian ad litem appointed, but even so, the matter of parentage is important enough that the district court should at least consider joinder and appointment of someone to evaluate and, if appropriate, advocate the position of the child. NRS 126.101(1) (amended 2013). Because the underlying action requested a declaration as to paternity, I would vacate the district court's order and remand this matter...
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