Kielkowski v. Kielkowski
2015 UT App 59
| Utah Ct. App. | 2015Background
- Husband and Mother divorced by default in 2011 using an OCAP-generated verified petition in which Husband checked a box stating there were "no children at issue in this marriage." The final decree contained that same statement and no orders for the child (Child) born during the marriage to Mother but not biologically Husband's.
- Husband had a parental relationship with Child from birth until roughly age two and made payments he considered child support; Mother later denied him access and stopped accepting payments.
- Husband filed a petition to modify the divorce decree in 2012 seeking adjudication of parentage and orders for custody, parent-time, and support for Child.
- Mother argued Husband had effectively rebutted the statutory presumption of paternity by his sworn divorce statement, that the decree adjudicated parentage (res judicata), and that Husband should have used Rule 60(b) to set aside the default judgment within the required time.
- The district court denied modification, concluding Husband had rebutted the presumption by his sworn statement; the appellate court reversed and remanded, holding parentage was not adjudicated and the presumption of paternity still stood.
Issues
| Issue | Husband's Argument | Mother’s Argument | Held |
|---|---|---|---|
| Whether the default decree adjudicated paternity and rebutted the statutory presumption | Husband said his OCAP checkbox was a mistake and did not amount to an adjudication; parentage was never litigated | Mother said Husband's sworn representation in the verified petition and resulting decree conclusively rebutted paternity | Court: Not adjudicated — a default recital is not an adjudication under the Parentage Act because the tribunal never considered the child’s best interest or required statutory proof to rebut the presumption |
| Whether a modification petition is a proper vehicle to raise parentage after an unadjudicated default decree | Husband argued modification is appropriate because the decree omitted any treatment of the child and res judicata is weak where parentage was unadjudicated | Mother argued Husband should have used Rule 60(b) to set aside the default judgment and the modification is improper/untimely | Court: Modification is proper to adjudicate parentage and correct the omission because best-interest considerations prevail and the presumption remains until rebutted under the Parentage Act |
| Whether Husband’s sworn divorce statement alone rebutted the presumption of paternity | Husband said the statement reflected misunderstanding of OCAP and lacked the statutory proof needed to rebut the presumption | Mother said the sworn statement amounted to a challenge that the court adopted, estopping Husband from relitigating paternity | Court: Sworn checkbox insufficient; statutory methods (genetic testing, proof of no sexual relations/cohabitation, or adjudication) are required to rebut the presumption |
| Whether Parentage Act timing bars raising parentage in modification (i.e., must be raised before or during divorce) | Husband said the presumption automatically arose at birth and remained until rebutted; because neither party rebutted it in the divorce, it could be raised in modification | Mother relied on the statute’s language that paternity may be raised prior to filing divorce or in the divorce pleadings to argue untimeliness | Court: The presumption endured; because it was not rebutted during the divorce, parties may address parentage in a modification proceeding under the court’s continuing jurisdiction |
Key Cases Cited
- Reller v. Reller, 291 P.3d 813 (Utah Ct. App. 2012) (default recital that a child exists does not constitute adjudication of parentage under Parentage Act)
- Elmer v. Elmer, 776 P.2d 599 (Utah 1989) (best-interest inquiry required before reopening custody questions; res judicata subordinate to child’s best interest)
- Taylor v. Elison, 263 P.3d 448 (Utah Ct. App. 2011) (res judicata and changed-circumstances rule; low bar where custody/parentage was unadjudicated)
- Smith v. Smith, 793 P.2d 407 (Utah Ct. App. 1990) (modification appropriate upon substantial change or when material facts were not before the court)
- Sill v. Sill, 164 P.3d 415 (Utah Ct. App. 2007) (standard of review for modification decisions)
- R.B. v. L.B., 339 P.3d 137 (Utah Ct. App. 2014) (court must conduct best-interest review; rule 60(b) is not the exclusive procedural vehicle when modification permits a best-interest examination)
- Fauver v. Hansen, 803 P.2d 1275 (Utah Ct. App. 1990) (paternity laws aim to ensure child support and protect children’s interests)