Walker v. Walker

• Citation: 280 S.W.3d 634
• Decision Date: 13 January 2009
• Docket Number: No. WD 69198.,WD 69198.
• Parties: Natalie WALKER, Respondent, v. Michael Aaron WALKER, Appellant.
• Court: Missouri Court of Appeals

280 S.W.3d 634

Natalie WALKER, Respondent, v. Michael Aaron WALKER, Appellant.

No. WD 69198.

Missouri Court of Appeals, Western District.

January 13, 2009.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 3, 2009.

Application for Transfer Denied May 5, 2009.

Sandra G. Hessenflow, Kansas City, MO, for Appellant.

Catherine Earnshaw-Hobbs, Lee's Summit, MO, for Respondent.

Before JAMES M. SMART, JR., P.J., LISA WHITE HARDWICK, and JAMES EDWARD WELSH, JJ.

JAMES EDWARD WELSH, Judge.

Michael Walker (Husband) appeals the circuit court's dismissal of his motion in which he sought the circuit court's declaration of non-paternity regarding N.M.W. and M.A.W. and sought to recover child support, health insurance, and other expenses from his ex-wife, Natalie Walker (Wife). Husband asserts that the circuit court erred in dismissing these counts because: (1) Rule 74.06(d) allows for Husband's cause of action for extrinsic paternity fraud, (2) collateral estoppel and res judicata are inapplicable to his cause of action for extrinsic fraud, (3) Husband should have been granted relief pursuant to section 210.834, RSMo 2000, (4) it is the trend to allow Husband to correct fraudulent parentage judgments, and (5) any arguments contrary to granting Husband relief are substantially outweighed by the harm and damage done to Husband. We affirm.

Husband and Wife were married on March 30, 2002. According to the judgment of dissolution, there were two children born of the marriage. N.M.W. was born prior to the marriage on October 1, 1999, and M.A.W. was born on January 24, 2003. The judgment of dissolution of marriage was entered on January 28, 2005.

On February 6, 2007, Husband filed his motion, which he entitled:

Respondent's (1) motion for declaration of non-paternity and for blood testing regarding N.M.W. and/or (2) in the alternative respondent's motion for declaration of non-paternity regarding M.A.W. and/or (3) in the alternative respondent's suit in equity to recover child support, health insurance and other expenses expended by the respondent for the support of petitioner's children based upon petitioner's fraud in obtaining the judgment of 01/28/2005 and/or (4) in the alternative respondent's family access motion to enforce visitation and/or (5) in the alternative respondent's application for contempt of court for petitioner's failure to comply with custody and visitation provisions and/or (6) in the alternative respondent's motion to modify judgment and decree of dissolution of marriage regarding custody, visitation and child support.

Husband's motion consisted of six counts; however, only the first three counts are at issue in this appeal.¹

In count one of the motion, Husband moved for declaration of non-paternity and for blood testing regarding N.M.W. In count two, Husband moved for declaration of non-paternity for M.A.W. And, in count three, he requested recovery of child support, health insurance, and other expenses that he paid to support the two children. In dismissing counts one through three of the motion, the circuit court found that Husband had not requested paternity testing regarding either child during the course of the dissolution action. The circuit court found that, pursuant to sections 210.822.1(1) and 210.822.1(2), RSMo 2000, Husband is the presumed father of both children. The circuit court held that, pursuant to Miller v. Hubbert, 804 S.W.2d 819 (Mo.App.1991), Husband's paternity was previously adjudicated in the dissolution proceeding and that he is bound by that prior paternity determination and precluded from raising it further due to the doctrine of res judicata. Husband appeals.

"Our standard of review of the circuit court's granting of a motion to dismiss is de novo." State Dep't of Soc. Servs. v. Stipancich, 238 S.W.3d 224, 225 (Mo.App. 2007). We examine the pleadings to determine whether they invoke principles of substantive law. Weems v. Montgomery, 126 S.W.3d 479, 484 (Mo.App.2004).

In his first point, Husband contends that the circuit court erred in dismissing count one through three of his motion because Rule 74.06(d) authorized him to present his suit in equity based upon extrinsic paternity fraud. Rule 74.06(d) provides:

This Rule 74.06 does not limit the power of the court to entertain an independent action to relieve a party from a judgment or order or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these Rules or by an independent action.

The circuit court held that this action was precluded by the doctrines of collateral estoppel and res judicata. However, res judicata and collateral estoppel are inapplicable to bar a claim to set aside a judgment obtained by extrinsic fraud. State ex rel. Div. of Child Support Enforcement v. Hill, 53 S.W.3d 137, 145 n. 4 (Mo.App.2001). A prior judgment can be set aside if it can be shown that it was obtained by extrinsic fraud.² Vinson v. Vinson, 725 S.W.2d 121, 124 (Mo.App. 1987). Extrinsic fraud refers to the fraudulent procurement of a judgment, not the propriety of the judgment. Id. It must relate to the manner in which the judgment was obtained. Id. It is defined as "`fraud that induced a party to default or to consent to a judgment against him.'" State ex rel. Lowry v. Carter, 178 S.W.3d 634, 637 (Mo.App.2005) (citation omitted).

The character of a cause of action must be determined from the factual allegations of the petition. Memco, Inc. v. Chronister, 27 S.W.3d 871, 875 (Mo.App. 2000). "`[O]ne cannot recover for a cause of action not pleaded.'" Gunter v. City of St. James, 189 S.W.3d 667, 678 (Mo.App. 2006) (citation omitted). For Husband's motion to invoke the equitable powers of the court, he must have pled extrinsic fraud sufficiently in his motion. Fraud must be pled with particularity. Rule 55.15. In count one Husband moved for declaration of non-paternity and blood testing with regard to N.M.H. Husband alleged the following:

That although [N.M.W.] was conceived during a time when the Petitioner and Respondent were married and Petitioner stated under oath in her Petition for Dissolution of Marriage that [M.A.W.] was a child of the marriage, blood testing has subsequently shown that the Respondent is not the biological father of [M.A.W.] as set forth in more detail in Count III of Respondent's Motion.

That this Court, Respondent, Respondent's counsel, and presumably Petitioner's counsel, relied upon the fraudulent statements of Petitioner concerning the parentage of [M.A.W.] which now raises a question as to the accuracy of Petitioner's similar assertions concerning the parentage of [N.M.W.], and blood testing is necessary to determine [N.M.W.]'s biological father.

In count two, Husband moved for declaration of non-paternity for M.A.W. In that count Husband alleged:

That this Court, the Respondent, Respondent's counsel, and presumably Petitioner's counsel relied upon the fraudulent statements of the Petitioner made under oath in her Petition of Dissolution of Marriage wherein she claimed that [M.A.W.] was a child born of the marital union between herself and Michael Walker, as is set forth in more detail in Count III of Respondent's motion.

And, in count three, Husband moved to recover child support and expenses based on Wife's fraud. In count three, Husband alleges:

That Petitioner committed both intrinsic and extrinsic fraud on the Court, the Respondent, the Respondent's counsel, and presumably on her own counsel in this matter in numerous ways.

First of all, she signed under oath a Petition for Dissolution of Marriage filed with this Court on February 13, 2004 wherein in paragraph 7 she indicated that the two minor children [N.M.W.] and [M.A.W.] were children born of the marriage between the Petitioner and the Respondent when she knew in fact that one, and possibly both of those children were not children of the marriage and were not the biological children of the Respondent.

That the Court, Respondent, Petitioner's counsel, and Respondent's counsel all relied on Petitioner's sworn Petition for Dissolution of Marriage in resolving the underlying dissolution case, and in allowing to be entered a subsequent Judgment concerning the custody, visitation and support of the two minor children....

That based upon Petitioner's fraudulent representations to the Court in her Petition and in her live testimony under oath during the divorce proceedings, this Court entered a child support order[.]

Husband fails to invoke the equitable powers of the court. Although he made the general assertion of extrinsic fraud in count three, Husband failed to allege any facts supporting that cause of action. He specifically alleged acts which constitute intrinsic fraud only. Husband does not allege anything that constitutes extrinsic fraud because his allegations are based solely on Wife's false averments in a divorce petition and her sworn testimony in court, which do not constitute extrinsic fraud. Miller, 804 S.W.2d at 821; K.E.A., 765 S.W.2d at 391. "It is the facts stated in the petition, along with the relief sought, which under our system of code pleading are to be looked at to determine the cause of action, rather than the form of the petition." Memco, Inc., 27 S.W.3d at 875. Husband's allegations are insufficient to invoke the equitable powers of the court, and, therefore, the circuit court did not err in dismissing counts one through three of Husband's motion.

In support of his claim of extrinsic fraud, Husband relies on Jefferson v. Jefferson, 137 S.W.3d 510 (Mo.App.2004), for the proposition that a man can raise the issue of non-paternity when he has blood test results showing that he is not the father. However, the facts in Jefferson are clearly distinguishable from facts in the...