Smith v. Smith, WD

• Decision Date: 01 December 1998
• Docket Number: No. WD,WD
• Parties: Frank N. SMITH, Jr., Appellant, v. Joyce Sanders SMITH, Respondent, and Dwight Elias, Respondent. 54511.
• Court: Missouri Court of Appeals

Page 829

985 S.W.2d 829

Frank N. SMITH, Jr., Appellant, v. Joyce Sanders SMITH, Respondent, and Dwight Elias, Respondent.

No. WD 54511.

Missouri Court of Appeals,

Western District.

Dec. 1, 1998.

As Modified March 2, 1999.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 2, 1999.

Robert Calbi, Kansas City, MO, for appellant.

Steven K. Wickersham, Kansas City, MO, for Respondent Joyce Smith.

Kay Madden, Kansas City, MO, for Respondent Dwight Elias.

Before ELLIS, P.J., LOWENSTEIN and RIEDERER, JJ.

RIEDERER, J.

Frank N. Smith Jr. appeals from the trial court's judgment dismissing with prejudice Joyce Sanders Smith's petition for declaration of paternity and from the trial court's judgment of dissolution finding that he is the father of Kashen Smith and ordering him to pay child support. We affirm.

Facts

Frank N. Smith, Jr., Appellant, and Joyce Sanders Smith, Respondent, were married on August 27, 1977. By April 1, 1978, they had separated and were not living as husband and wife. Respondent has two children, Frank Smith born January 18, 1978, and Kashen Smith, born June 22, 1980. When the parties separated in 1978, Appellant left the Kansas City area and did not have contact with Respondent again until 1990 or 1991. Appellant does not contest that he is the father of Frank Smith. However, Appellant denies that he is the father of Kashen Smith. Appellant claims he did not know of the existence of Kashen until he returned to Kansas City, Missouri in 1990.

After Appellant and Respondent separated in 1978, Respondent had sexual relations with Dwight Elias. Kashen Smith was born to Respondent on June 22, 1980. In June of 1988, the State entered an administrative default order which ordered Appellant to pay child support for both Kashen and Frank Smith. Appellant claims he received no notice of the administrative proceedings, and was not aware of the proceedings until 1990. Notice had been mailed to an old address and was not forwarded. Although Appellant admits he had tax refunds withheld to pay support, he assumed that it was for Frank Smith. There is no evidence in the record that Appellant ever knew of the 1988 administrative proceedings.

On December 29, 1995, Appellant filed a petition for dissolution of marriage, in which he denied being the father of Kashen. Respondent filed an answer and cross-petition for dissolution of the marriage on February 15, 1996, in which Respondent admitted that Appellant was not the biological father of Kashen. On February 17, 1996, Respondent filed an application for leave to file a third party petition, to add Dwight Elias as a third-party defendant. On February 28, 1996, Respondent, as Kashen's next friend and individually, filed a third party petition for declaration of paternity and order of custody and support, in which Respondent claims Dwight Elias is Kashen's father. On April 1, 1996, Elias filed his answer to Respondent's petition for declaration of paternity, in which he denied being Kashen's father. On September 2, 1996, Respondent filed a motion for blood tests to determine the paternity of Kashen. On September 28, 1996, Elias filed suggestions in opposition to Respondent's motion for blood tests and a motion to dismiss Respondent's petition for declaration of paternity. On October 16, 1996, Elias filed supplemental suggestions in opposition and motion to dismiss in which he argued that Respondent's action to establish paternity was time-barred and precluded by the doctrine of res judicata. On February 19, 1997, a hearing was held concerning the motion for blood tests and Elias's motion to dismiss Respondent's petition for declaration of paternity. On March 25, 1997, the court sustained Elias's motion to dismiss and "ordered that plaintiff's Petition for Declaration of Paternity is dismissed with prejudice." Finally, on April 29, 1997, a hearing was held on the dissolution of marriage. On May 21, 1997, the trial court issued its judgment and decree of dissolution. The trial court found that "the minor child Kashen S. Smith ... to be born of the marriage of the parties in that Petitioner was determined to be the father of the child in a prior judicial proceeding in Jackson County, Missouri bearing the case number DR88-4867." The court also ordered Appellant to pay support for Kashen. This appeal ensued.

Appellant asserts four points on appeal:

I. The trial court erred in dismissing Respondent Joyce Sanders Smith's petition for declaration of paternity in that the cause of action was not barred because the statute of limitations under the Uniform Parentage Act had not expired.

II. (a) & (b) The trial court erred in holding that Appellant was the father of Kashen Smith and ordering him to pay child support for Kashen Smith when the testimony of the parties, including Respondent Joyce Sanders Smith's declaration that Appellant was not the father of Kashen Smith, overcame the rebuttable presumption under § 210.822.1(1) that Appellant was the father of Kashen Smith

III. The trial court's application of the pre-1993 version of 210.826.1 was error in that it violated Appellant's equal protection and due process rights.

IV. The trial court erred in holding that an administrative default order finding Appellant to be the presumed father of Kashen Smith had a collateral estoppel effect in the dissolution proceedings when the determination of the administrative body was void.

Standard of Review

The judgment of the trial court should be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Shadwick v. Byrd, 867 S.W.2d 231, 235 (Mo.App.1993) (citing, Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)).

I.

Appellant claims in his first point that the trial court erred in dismissing Respondent Joyce Sanders Smith's petition for declaration of paternity with prejudice because the applicable statute of limitations had not expired.

The statute of limitations at issue is § 210.826.1. ¹ The current version of § 210.826.1 provides:

A child, his natural mother, a man presumed to be his father under subdivision (1), (2), or (3) of subsection 1 of section 210.822, a man alleging himself to be a father or the division of child support enforcement may bring an action at any time for the purpose of declaring the existence or nonexistence of the father and child relationship presumed under subdivision (1), (2), or (3) of subsection 1 of section 210.822. (Emphasis added).

Prior to its 1993 amendment former subdivision 1(2) of § 210.826.1 stated:

For the purpose of declaring the nonexistence of the father and child relationship presumed under subdivision (1), (2), or (3) of sub-section 1 of section 210.822 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. (Emphasis added).

Appellant argues in a roundabout manner that the current version of the statute applies. However, Appellant concedes that if the pre-1993 version of the statute applies, then the action would be barred, since the child was sixteen years old when the action was filed.

The Missouri Supreme Court has recently addressed this issue in W.B. v. M.G.R., 955 S.W.2d 935 (Mo. banc 1997). In W.B., the Respondent and the mother were married in 1976. During the marriage, she gave birth to three children, including the daughter at issue in the case, who was born on June 15, 1984. When the parents of the children divorced in 1984, the trial court found that the three children were born of the marriage, custody was awarded to mother, and Respondent was ordered to pay child support. Mother and Respondent remarried in 1985. When the second marriage was dissolved, the trial court found once again that the children were born of the marriage, awarded custody to the mother, and ordered Respondent to pay child support. Mother subsequently married Appellant in 1992. In 1993, Appellant filed a petition seeking to have himself declared Daughter's father. The trial court dismissed the action with prejudice based on the pre-1993 five year statute of limitations contained in § 210.826.1(2). Our Supreme Court held that the current version of § 210.826.1 could not be applied retroactively and that as of the daughter's fifth birthday, June 15, 1989, Respondent, "acquired, under the law as it then existed, a vested right to be free from a suit to challenge his paternity of daughter." Id. at 937.

Appellant attempts to distinguish his action from that of the W.B. case. Appellant claims that the rationale for § 210.826 is to encourage the creation and maintenance of a relationship between a child and father, and that this rationale is not pertinent in his case. Appellant argues that he has never seen the child and does not have an existing paternal relationship to protect. Appellant's argument is taken out of context. In W.B., the court stated that the statute did not violate equal protection. Id. at 940. The court found that the State had a legitimate state interest in protecting paternal relationships and that this interest is protected by allowing paternity to be challenged only for five years. Id. at 938. The court in W.B. did not assert that § 210.826 applies only if there is an existing parental relationship to protect.

Since W.B., this court has addressed this very issue in two decisions. In State ex rel. Umelu v. Edwards, 963 S.W.2d 670 (Mo.App.1997), the State's Division of Child Support Enforcement and the mother of the minor child appealed the trial court's dismissal of their paternity action. In Edwards, the mother and husband were married in May of 1978. In December of that same year, the couple separated ². In the summer of 1979, Mother began having sexual relations with Michael Edwards. In April of 1981, Mother gave birth to C.J.U. In May of 1994, the State and the Mother of the child filed a...