872 N.W.2d 357
Wis. Ct. App.2015Background
- Mother (Arika) was married when she gave birth; she had a brief relationship with Douglas during a separation from her husband and the child was born into the marriage. Twenty days after birth Douglas petitioned to establish paternity.
- Mother objected to genetic testing under Wis. Stat. § 767.863(1m) because the child was born during marriage; the court appointed a guardian ad litem (GAL) and held a hearing on whether testing would be in the child’s best interest.
- At the hearing Douglas and the GAL supported testing; mother and husband opposed testing, citing family stability and concerns about Douglas (including marijuana use). The GAL emphasized family stability could change.
- The circuit court dismissed the paternity petition without prejudice, concluding a judicial determination of paternity would not be in the child’s best interest and referencing a presumption favoring the intact family, but the court made no explicit factual findings.
- Douglas appealed the denial (arguing the court erred in concluding testing was not in the child’s best interest). Arika cross-appealed, arguing dismissal should have been with prejudice.
- The court of appeals held: (1) the trial court may dismiss under § 767.863(1m) without prejudice; (2) because the appellate standard (per precedent) requires de novo review of the best-interest conclusion and the trial court made no factual findings, the matter must be remanded for detailed findings to allow a proper de novo review.
Issues
| Issue | Douglas's Argument | Arika's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in finding genetic testing not in the child’s best interest | Trial court wrongly concluded testing was not in child’s best interest; appellate court should evaluate de novo | Opposed testing to preserve intact family; trial court decision was correct | Court could not review de novo because trial court made no factual findings; remanded for detailed findings so de novo review can occur |
| Whether dismissal under § 767.863(1m) must be with prejudice | (implicit) dismissal without prejudice preserves ability to seek testing later if circumstances change | Dismissal should be with prejudice; best-interest dismissal is an adjudication on the merits barring future actions | Dismissal may be without prejudice; statute and related provisions permit courts discretion to dismiss with or without prejudice |
Key Cases Cited
- Cockroft v. Ulrich, 201 Wis. 642 (1930) (originally treated best-interest determinations as factual)
- Shehow v. Plier, 60 Wis. 2d 540 (1973) (held best-interest determination is a question of law)
- Young v. Alderson, 68 Wis. 2d 64 (1975) (discussed mixed fact/law nature and applied discretionary review)
- Brandt v. Witzling, 98 Wis. 2d 613 (1980) (adopted Young’s discretionary standard for best-interest review)
- W.W.W. v. M.C.S., 161 Wis. 2d 1015 (1991) (held ultimate best-interest conclusion in paternity context is reviewed de novo)
- F.R. v. T.B., 225 Wis. 2d 628 (1999) (explains best-interest determinations often fall to trial court discretion)
- Cook v. Cook, 208 Wis. 2d 166 (1997) (appellate courts bound by published precedent)