State ex rel. Cynthia M.S. v. Michael F.C., 91-2769

• Decision Date: 23 February 1994
• Docket Number: No. 91-2769,91-2769
• Citation: 511 N.W.2d 868,181 Wis.2d 618
• Parties: STATE of Wisconsin, ex rel. CYNTHIA M.S., Plaintiff-Respondent-Petitioner, v. MICHAEL F.C., Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 868

511 N.W.2d 868

181 Wis.2d 618

STATE of Wisconsin, ex rel. CYNTHIA M.S. Plaintiff-Respondent-Petitioner, v. MICHAEL F.C., Defendant-Appellant.

No. 91-2769.

Supreme Court of Wisconsin.

Argued Nov. 29, 1993.

Decided Feb. 23, 1994.

For the defendant-appellant there was a brief by James G. Curtis and Hale, Skemp, Hanson & Skemp, LaCrosse and oral argument by James G. Curtis.

Guardian ad litem brief was filed by Ramona A. Gonzalez and Bosshard & Associates, LaCrosse.

WILCOX, Justice.

This is a review under sec. (Rule) 809.62, Stats., of an unpublished decision of the court of appeals which reversed La Crosse County Circuit Court Judge Peter G. Pappas' order vacating the 1979 dismissal of petitioner's paternity action against the respondent, 175 Wis.2d 622, 502 N.W.2d 282. The court of appeals held that petitioner's motion to vacate the 1979 order of dismissal was not brought within a reasonable time as required by sec. 806.07(2), Stats. ¹ We believe that under the facts of this case, petitioner did bring her motion to vacate within a reasonable time. Accordingly, the decision of the court of appeals is reversed.

The petitioner, Cynthia M.S., gave birth to Nathanael S. on January 10, 1978. In February of 1979, a paternity action was commenced in La Crosse County against the respondent, Michael F.C. At a preliminary hearing, Cynthia testified that Michael was the only man with whom she had had sexual relations during the statutory period of conception. The court found probable cause to believe that Michael was Nathanael's father, and ordered that blood tests be performed. The results of those tests excluded Michael as the father.

When the assistant district attorney handling the case told Cynthia of the results, he informed her that such tests were 98 percent accurate and were considered conclusive evidence of parentage. ² He also advised her that she could have the tests performed again, but only at her own personal expense of between $600 to $800. Due to her limited financial resources, Cynthia did not have additional tests performed at that time. As a result, the assistant district attorney moved for dismissal of the paternity action. That motion was granted by order dated September 27, 1979.

At the time of Nathanael's birth, Cynthia was 23 years old and employed as a sales clerk in a La Crosse jewelry store. She was a high school graduate and had completed training as a medical assistant at the Western Wisconsin Technical Institute. This training was office/clerical in nature and had not given her any familiarity with blood testing. Similarly, Cynthia had not had any prior experience with the legal process.

In August of 1979, Cynthia moved to Minneapolis and got a job with the Hennepin County Medical Center. Her employment there continued over the ensuing 10 years, during which her annual income rose from approximately $7,000 in 1980 to $17,000 in 1989. Throughout this same period Cynthia remained solely responsible for all of her and Nathanael's expenses. These included food, clothing, rent, health insurance and day care.

Despite the outcome of the original tests, Cynthia continued to believe that Michael was Nathanael's father. In 1980 she contacted Dr. Herbert Polesky, an expert in paternity blood testing, raising with him the possibility that an error had been made. Dr. Polesky replied that such tests were exceedingly accurate and that she would have trouble convincing anyone that Michael was the father given the results. Cynthia testified that she was very intimidated by Dr. Polesky's response.

In 1987 the issue again arose when a physician acquaintance of Cynthia's inquired as to how she planned to finance Nathanael's college education. This acquaintance arranged, at no expense to Cynthia, to have the tests performed again, this time by Dr. Polesky. The new results indicated a 99.16 percent probability that Michael was in fact Nathanael's father.

Armed with this newly-acquired evidence, Cynthia tried to initiate paternity proceedings against Michael in California, the state in which he has resided since 1983. The California county attorney's office informed her, however, that it would not pursue the case until such time as the 1979 order of dismissal was vacated.

Cynthia's first response was to move the La Crosse County Circuit Court to enter an order declaring that the 1979 dismissal had not been on the merits. Such a determination would, presumably, satisfy the requirements of the California courts. The trial court denied that motion, holding that its 1979 dismissal was on the merits because it was based on then thought-to-be-accurate blood tests.

Subsequently, on April 2, 1990, Cynthia moved the trial court to vacate the 1979 order of dismissal pursuant to sec. 806.07(1)(h), Stats. ³ An evidentiary hearing on that motion was held on January 3, 1991.

On October 7, 1991, the trial court rendered its decision. Noting that its conclusions were premised on "all pleadings, testimony of witnesses and arguments by counsel," and after devoting six pages to its factual findings, the court determined that Cynthia's motion had been made within a reasonable time, "both from the time of the 1979 Order and from the time of Dr. Polesky's December 1987 HLA test results."

The court then went on to conclude that "extraordinary circumstances" justified the granting of Cynthia's motion. It characterized Cynthia as "unsophisticated," lacking the financial resources to afford additional blood tests. It also considered Nathanael's "substantial interests" in the matter, and found that they outweighed the prejudice "if any" to Michael. The court noted that Michael chose not to present any evidence of prejudice at the evidentiary hearing, that there was no indication that any man other than Michael was the father, and that blood tests now indicated a 99.16% probability that he was Nathanael's father. It also noted that Michael had not been prejudiced by a change in technology since the HLA testing performed by Dr. Polesky was the same type of testing performed in 1979.

The court of appeals reversed. It began by determining that the trial court failed to adequately explain the reasoning behind its decision. As a result, it conducted its own review of the record, one which led it to conclude that the facts did not support a finding that Cynthia brought her motion within a reasonable time. Therefore, it concluded, the trial court's holding to the contrary constituted an erroneous exercise of discretion. ⁴

The court of appeals focussed its inquiry on two factors: the basis for Cynthia's delay, and the prejudice to Michael if relief were granted. With respect to the latter, the court agreed that in most respects, any prejudice to Michael in this case was of "minimal concern." As for Cynthia, however, the court found that her financial condition could not in and of itself justify her 10 year delay in bringing the motion. This was particularly true, the court believed, given that during that period Cynthia apparently never sought help from any governmental or social services agency.

The question we must decide is whether the trial court properly granted Cynthia's motion for relief from the 1979 order of dismissal. An appellate court's review of a trial court's decision on a motion to vacate is limited to the question of whether there has been an erroneous exercise of discretion. Rhodes v. Terry, 91 Wis.2d 165, 176, 280 N.W.2d 248 (1979). Erroneous exercise of discretion will not be found if the record shows that the trial court exercised its discretion and that there is a reasonable basis for the court's determination. The term "discretion" contemplates a process of reasoning which depends on facts that are in the record or are reasonably derived by inference from the record and yields a conclusion based on logic and founded on proper legal standards. State ex rel. M.L.B. v. D.G.H., 122 Wis.2d 536, 542, 363 N.W.2d 419 (1985).

Section 806.07, Stats., entitled Relief from judgment or order provides the following:

On motion and upon such terms as are just, the court may relieve a party or legal representative from a judgment, order, or stipulation for the following reasons:

(a) Mistake, inadvertence, surprise, or excusable neglect;

(b) Newly-discovered evidence which entitles a party to a new trial under s. 805.15(3);

(c) Fraud, misrepresentation, or other misconduct of an adverse party;

(d) The judgment is void;

(e) The judgment has been satisfied, released or discharged;

(f) A prior judgment upon which the judgment is based has been reversed or otherwise vacated;

(g) It is no longer equitable that the judgment should have prospective application; or

(h) Any other reasons justifying relief from the operation of the judgment.

(2) The motion shall be made within a reasonable time, and, if based on sub. (1)(a) or (c), not more than one year after the judgment was entered or the order or stipulation was made....

In M.L.B., 122 Wis.2d at 544-45, 363 N.W.2d 419, this court observed the following with respect to motions under subsection 806.07(1)(h):

Subsection (h) is written in broad terms and obviously extends the grounds for relief beyond those provided for in the preceding sections: under subsection (h) the ground for granting relief is "justice" and the time for bringing the motion is "reasonable."

As indicated, such motions must satisfy both substantive and time criteria. With respect to the substantive inquiry, this court has adopted an "extraordinary circumstances" test. Id. 122 Wis.2d at 549, 363 N.W.2d 419. Under that test, a court must determine whether, in view of all the facts, "extraordinary circumstances" exist which justify relief in the interests of justice. Id. at 552-53, 363 N.W.2d 419. Here, the trial court determined that "extraordinary circumstances" warranting relief existed, and Michael has not appealed that holding.

The sole issue before us, therefore, is whether...