W.W.W. v. M.C.S.
| Decision Date | 25 June 1987 |
| Citation | 140 Wis.2d 863,411 N.W.2d 428 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. IN RE THE PATERNITY OF C.A.S. AND C.D.S.: W.W.W., Petitioner-Respondent, v. M.C.S., Respondent-Third-Party Petitioner-Appellant, R.J.S., Third-Party Respondent-Appellant, C.A.S. AND C.D.S., Appellants. 86-1207. |
| Court | Wisconsin Court of Appeals |
Circuit Court, Dane County
Affirmed
Appeal from an order of the circuit court for Dane county: Angela B. Bartell, Judge.
Before DYKMAN, EICH and SUNDBY, JJ.
M.S.C. (the 'mother'), R.J.S. (the 'husband'), and C.A.S. and C.D.S. (the 'children'), by their guardian ad litem, appeal from an order requiring them and respondent W.W.W. (the 'putative father') to submit to blood tests to determine the paternity of the children and denying motions to dismiss the putative father's paternity action and for summary judgment recognizing the husband as the father of the children. We agree with the putative father that the trial court did not err in ordering the blood tests or denying the motions. We therefore affirm.
The putative father commenced a paternity action seeking a determination that he is the father of the children. The mother is the childrens' mother and the husband is her husband of twenty years. The mother and the putative father had an extramarital affair during the conceptive periods for the children. The children have lived in a family with the mother and husband since birth.
At a pretrial, the putative father requested that the court commissioner order blood tests. The commissioner determined that continuation of the action was contrary to the childrens' best interests, recommended dismissal of the petition and declined to order blood tests. Sec. 767.46(2), Stats. The putative father refused to accept the recommendation. The court commissioner certified the matter to the trial court judge. The putative father renewed his demand for a blood test.
The mother filed a third-party petition which alleged that the husband is the father of the children. The husband answered and admitted paternity. The guardian ad litem moved for judgment on the pleadings on the ground that they established the husband as the father and continuation of the action was not in the childrens' best interest. The trial court denied the motions, and granted the putative father's request for blood tests. We granted leave to appeal. The Wisconsin Supreme Court denied appellants' petition to bypass.
Appellants argue that the paternity statutes should be construed to require a finding that continuation of the action is in the child's best interest before a blood test can be ordered. Construction of a statute is a question of law and no deference is owed to the trial court's decision. In Interest of P.A.K., 119 Wis.2d 871, 876, 350 N.W.2d 677, 680 (1984). The primary goal of statutory interpretation is to give effect to the legislature's intent. Id. at 878, 350 N.W.2d at 681. We look first to the statute's language. Id. If it is unambiguous, we must give effect to its plain meaning. Id.
Section 767.46(2), Stats., requires a judgment or court commissioner at a paternity pretrial to 'evaluate . . . whether a judicial determination of paternity would be in the best interest of the child . . .' The judge or commissioner is required to advise the parties of the evaluation, and may make 'an appropriate recommendation for settlement to the parties.' If the parties accept the recommendation, judgment is entered accordingly. If any party or the guardian ad litem refuses to accept a recommendation made under the statute, and no blood tests have yet been taken, 'the court shall require the appropriate parties to submit to blood tests.' Sec. 767.46(4). A separate section provides that the court may order blood tests, and shall order blood tests if requested by a party. Sec. 767.48(1). The plain meaning of these statutes shows that the ordering of blood tests under secs. 767.46(4) and 767.48(1) does not entail or depend on a finding that a determination of paternity would, or would not, be in the child's best interest.
Section 767.48(1), Stats., cannot be construed to make ordering the test discretionary when requested by a party. Where 'shall' and 'may' are both used in a section, as they are in sec. 767.48(1), we can infer that the term 'shall' is intended to be mandatory. In Matter of E.B., 111 Wis.2d 175, 18, 330 N.W.2d 584, 590 (1983).
State ex rel. Scott v. Slocum, 109 Wis.2d 397, 398, 326 N.W.2d 118, 119 (Ct. App. 1982), stated in dictum that a blood test cannot be ordered until the court determines there is a probability that paternity can be established and that paternity is in the child's best interest. See also In re Paternity of D.A.A.P., 117 Wis.id 120, 124, 344 N.W.2d 200, 202 (Ct. App. 1983). Neither case involved a trial court's duty to order a requested blood test under sec. 767.48(1), Stats., after the pretrial proceedings have been completed, however. They are not controlling.
Appellants contend that the trial court had inherent equitable authority to dismiss the action because it was not in the childrens' best interest. A circuit court may grant equitable relief absent statutory authority in response to the invasion of legally protected rights. In Interest of E.C., 130 Wis.2d 376, 388-89, 387 N.W.2d 72, 77 (1986). In re Paternity of R.W.L., 116 Wis.2d 150, 158, 341 N.W.2d 682, 685 (1984), held that the primary interest in a paternity action is that of the child. However, the ruling was made in the context of whether a child had a right to bring the action. It did not decide that a paternity action can only proceed if it is in the child's best interest.
The putative father has a legally protected right to establish his parentage, Slawck v. Stroh, 62 Wis.2d 295, 304, 215 N.W.2d 9, 15 (1974), and to have blood tests ordered. Sec. 767.48(1), Stats. Happel v. Mecklenburger, 427 N.E.2d 974 (Ill. App. 1981), is distinguishable. It upheld the denial of a motion for blood tests brought by a man seeking to establish paternity to a child conceived while the mother was married to another. However, the trial court had discretion to deny the test under the applicable court rule. Id. at 980. Section 767.48(1), provides no such discretion. The trial court did not err in failing to dismiss the action based on any inherent equitable authority.
Appellants argue that the constitutional rights of an unmarried male who has not been adjudicated a father depend on his participation in the rearing of his child, citing Lehr v. Robertson, 463 U.S. 248, 261 (1983). 1 Regardless of the truth of the statement, 2 a man alleging parnity has a statutory right to a blood test. Since the putative father is not contending that any statute unconstitutionally denies him his parental rights, Stanley v. Illinois, 405 U.S. 645 (1972), Quilloin v. Walcott, 434 U.S. 246 (1978), Caban v. Mohammed, 441 U.S. 380 (1979), and Lehr, supra, which involved unwed fathers' challenges to statutes or proceedings limiting their rights, are not controlling.
The children and the husband argue that they have a protected liberty interest in their established parent-child relationship and a reputational interest in the childrens' presumed legitimacy, sec. 891.41, Stats., both of which entitle them to due process before a paternity decision is made. Due process, they argue, requires a finding that ordering blood tests is in the childrens' best interest.
Even if a reputation interest in a presumption of legitimacy exists, due process only requires notice and an opportunity to clear one's name....
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