*1 Malloy. Dr. also Linder conceded N.H.’s might condition consti- disorder, tute a form of personality bemay accompanied psychotic brief episodes.
The trial court was weigh testimony entitled to of the two experts, their respective opportunities consider to observe N.H. over time, points and evaluate the which they agreed on and the areas Rescue, they diverged. where See at Operation (factfinder evidence). at 414 is best to weigh situated Based on the above, record evidence summarized we cannot conclude the court clearly finding by erred in clear and convincing evidence that N.H. suffered from mental a illness the statutory within definition.
N.H. also contends the evidence failed to the court’s finding that her illness so her lessened self-control and judgment that posed she of harm danger or herself others. The court on relied sister, extreme nature N.H.’s on assault as well as evidence that she had engaged wards, bizarre and violent behavior had at progressively isolated herself home hospital, and in the experienced thought blockages home and dialogues with psychiatrists. staff and The record as a amply whole supported the court’s finding that without the structure of hospitalization, continued deteriorate, N.H.’s condition would her tenuous grip self-control reality further, slip would and she would pose danger to herself others. or the court’s conclusion that N.H. was patient need of further reasonably treatment was supported evidence, by the must be upheld.
Affirmed.
Mark A. v. Rita Godin Godin
[725 904] A.2d No. 97-147 Amestoy, C.J., Dooley, Morse, Skoglund, Present: Johnson and JJ.
Opinion Filed December *2 Albans, Cahill, Miller, Brown, for & St. Timothy Ryan J. Gawne Plaintiff-Appellant. Godin, se, Enosburg, Defendant-Appellee. pro
Rita whether, after a final Morse, years six presented J. The question disavow a may a father adjudication paternity, and divorce decree years to for fourteen marriage presumed during child born may his. hold that he not. have been We motion to require Mark Godin’s family plaintiff court denied Christina, the child born testing to determine genetic Godin, his Rita and dismissed married to his former wife while he was order. Plaintiff contends to set aside a child complaint seeking adjudication concluding the court erred judicata was res and barred in the final divorce decree implicit affirm.1 relitigation. We Mother and undisputed. plaintiff are largely
The material facts during Sum- sexually relationship intimate Vermont shared On 1981, military from service. was on leave plaintiff mer of while Subse- 15, in South Carolina. returned to his station July plaintiff when he returned to pregnant she was plaintiff mother told quently, November, in December 1981. they were married Vermont 18, Mother filed May 1982. gave Mother birth Christina child, was one she stated there in 1989.In her hearing Christina, A final uncontested divorce marriage. born portions brief as well as of mother’s to strike from the record Plaintiff’s motion 10(a). granted pursuant to VR.A.E previously unfiled documents both were April parties present. was held in at which order adopted parties’ stipulation, May and a final was issued order, 1990.Under the terms of the final divorce mother was awarded custody required was child pay support. years
In the Fall of six after the divorce approximately final, family became rumors his suspect within led he was his biological not Christina’s father. He then reconsidered earlier with he must relationship mother and concluded not be the father elapsed alleged months concep- because ten between Christina’s result, tion birth. pro genetic and her As a he filed a se motion for motion, testing with the court. The court ruling denied requested the test should have been before divorce became final. Plaintiff retained counsel and a complaint seeking then filed relief 60(b). from judgment based on fraud the court. See V.R.C.P As action, part of this plaintiff requested genetic that the court order testing and vacate provisions those of the divorce referring order him as him requiring the father Christina and to pay support. child
A was in March 1997. hearing held Plaintiff testified that until the Fall of he believed his child and treated her as such. He explained questioned that he his paternity only after *3 began Christina him if asking he was her father. Mother sexually testified she was that intimate with another prior man to the marriage plaintiff while inwas South Carolina. She also testified that when she informed she was pregnant, she “never stated who was addition, the father and wasn’t.” In who she denied ever telling any plaintiff’s relatives that plaintiff was not Christina’s biological father. she Finally, stated that although she was not opposed to she genetic testing, was impact concerned about such testing would have on then fifteen-year-old her who daughter “has always thought [plaintiff] is her father.”
The court appointed a ad guardian represent litem Christina’s interests, and reset hearing for April April 1997. At the hearing, plaintiff objected testimony guardian intended ad litem on grounds that testimony hearsay her would relate evidence and matter, would introduce an subject irrelevant namely, Christina’s feelings genetic testing. about The court declined to testimony hear from guardian ad plaintiff’s litem held that request for genetic testing was time-barred. The court reasoned that an opportunity to original contest proceeding or on appeal, that his him precluded failure to do so from challenging paternity Accordingly, at a later date. the court concluded his independent modify support, child plaintiff’s motion followed. court, appeal moot. This were of fraud action upon the court a fraud perpetrated that mother contends Plaintiff by alleging proceedings the divorce during fraud, and, of such because her husband’s biologically was support. child obligation pay any should set aside trial court involve claims that both of the trial court agree with We findings issue: the underlying same conclusiveness addressed previously have judgment. in a divorce We and implications Lerman, 629, 629, Lerman v. 148 Vt. this issue. See Lerman, (mem.). husband was (1987) a former In we held that years ten genetic testing approximately to court-ordered not entitled id. no where reasoned that final. See We his divorce became after during proceeding a divorce was raised concerning paternity issue contesting paternity, action from the divorce was taken appeal and no See relitigation paternity. judicata precluded doctrine of res holding id. Plaintiff’s our us to reconsider requires appeal implicitly in Lerman. 60(b) judgment. of relief from granting governs
V.R.C.P Fed. R. counterpart, to its “substantially identical” federal Rule 60 rule, Notes, a court 60. Under 60. V.R.C.E Reporter’s Civ. P See “newly discovered evidence judgment a final relief from may grant in time to move have discovered diligence could not been due 59(b)” misrepresentation, . . or for “fraud. for new trial under Rule (3). 60(b)(2), party.” of an adverse V.R.C.E or other misconduct alleged on two facts: mother’s premised seems to be Plaintiff’s claim “newly This partner. sexual and another gestation period, ten-month it before their mother’s failure to disclose discovered evidence” and in the As stated alleged expressly constitutes the fraud. marriage however, on either of rule, judgment a motion for relief from based after the year must be made within one grounds these judgment approxi from his motion for relief entered. Plaintiff filed not he was judgment. the date of the mately years six after 60(b)(2) or to relief under Rule entitled not and thus that his claim is time-barred realizing Apparently *4 these contends that provisions, plaintiff the above cognizable under Instead, mother’s contends that controlling. not he subsections are is not court” and therefore “upon committed the fraud was alleged this limitations. Based on one statute of subject year to the same catch-all characterization, by provi- governed claim is for 60(b)(6), may granted be provides that relief sion of Rule from justifying operation judg- other reason relief “any based provides ment.” The rule that motions on the catch-all explicitly 60(b). “shall made within a reasonable time.” provision be V.R.C.E power also that there is no limit to “the of a court to rule states judgment an from independent party entertain action to relieve a upon ... or to set aside a for fraud the court.” Id. State, 316, 318, 503 explained Levinsky As we A.2d 60(b) (1985), independent simply “the action clause Rule historical of the courts of reform preserves authority equity to added) (internal judgments special (emphasis circumstances.” omitted). “However, provision this catch-all is avail quotation marks only when a ground justifying encompassed able relief is not within any of the first five classes of rule.” at Id. at (internal omitted). quotation marks issue, then, first is whether the fraud alleged may here be
properly
upon
characterized as a fraud
the court and therefore
one-year
from
exempt
statute
limitations. We
conclude
fraudulent,
all,
the extent mother’s conduct
at
if
it constituted
upon plaintiff,
fraud
not
court.
upon the
The seminal decision
Co.,
area Hazel-Atlas Glass Co. v. Hartford-Empire
Since courts and commentators alike have observed that the fraud-on-the-court doctrine must narrowly or it applied, indistinguishable fraud, would become from ordinary and undermine the important policy favoring finality of “If judgments. fraud
519 encompassed that interpretation a broad given court were to be the parties, between of fraudulent misconduct virtually all forms 60(b) of Rule time limitations final and the would never be judgments al., Practice Moore, Moore’s Federal 12 J. et meaningless.” would be 1997). ¶ (3d Thus, has generally the doctrine 60.21[4][c], ed. at 60-55 evidencing, as misconduct egregious the most only reserved for been design improp Hazel-Atlas, and calculated an unconscionable Sales See, v. Johns-Manville e.g., Wilson influence the court. erly (fraud (5th 1989) requires the court 869, F.2d 872 Cir. Corp., 873 designed improperly or scheme plan of unconscionable showing decision). explained, court has in its As one federal influence court only spe that should ‘“embrace concept narrow fraud-on-the-court itself, to, court or is defile the attempts cies of fraud which does or judicial that of the court so by fraud officers perpetrated task of impartial usual manner its perform cannot machinery Instruments, Prods., H. Inc. v. N. & cases.’” Kerwit Med. adjudging (5th 1980) Moore, Inc., 833, 7 Federal (quoting 616 F.2d 837 Cir. ¶ ed.)). (1971 60.33, another court has observed: at 515 As Practice the most justified only by egregious “‘A of fraud on the court is finding itself, such as . . . fabrication misconduct directed to the counsel, clear, by unequivocal must supported evidence Tools, Inc., v.Klein 949 F.2d convincing evidence.’”Nichols (8th 1991) Pfizer, Corp., Inc. v. International (quoting Cir. Rectifier (8th 1976)). 180, 538 F.2d 195 Cir. standard, mother’s conduct this case
Judged light in the of this as a fraud on the court. The reasonably cannot be characterized is mother’s attestation plaintiff’s allegation basis of fraud primary marriage.”' [the] was “born her divorce Christina mother’s, in the but rather was contained wording The was not form, that the child was merely signified preprinted complaint fact, From this the law legally while the were married. parties born 15 parents. are the child’s natural See presumes parties that the 308(4)(Cum. 1998) rebuttably (alleged parent shall be Supp. V.S.A. if while husband and wife to be natural child born presumed parent married); Cicero, v. 395 N.Y.S.2d legally are see also Cicero 1977) to “issue of the attached (App. (presumption legitimacy Div. 1968) Rose, Div. (App. marriage”); Orange N.Y.S.2d presumption legiti- marriage” were entitled (“offspring 1964) Div. (App. 246 N.Y.S.2d macy); Corp., Best v. L.J.F. (issue there legitimate). marriage” presumed of this are “born representation mother’s Christina nothing was fraudulent about law marriage. supplied presumption was born of the child’s natural mother did not make that parent; representation. affirmative real thrust of claim is that plaintiff’s fraud-on-the-court facts during proceedings,
mother failed disclose certain the divorce namely, she sexual relations with another man sometime military duty, after returned to and that was born some ten months after last sexual encounter with mother. observed, As a of courts have mere an number “‘the nondisclosure to adverse and to the court of facts to a party pertinent controversy *6 up before the court does not add to “fraud the court” for 60(b).’”Wilson, purposes vacating judgment of a under Rule 873 F.2d 837). Prods., Furthermore, at 872 Kerwit 616 F.2d (quoting Med. at do, fact, many extend than pregnancies longer average gestation period, periods and of 42 weeks or are not longer unknown. (R. ed., Lawyer’s See 5 Cyclopedia Medical 37.2a Patterson 4th ed. 1998)(three percent days of women or past day deliver more first last menstrual period). of the nondisclosures in this case did not calculated, approach egregious adjudica the kind of of “defiling” process traditionally tive that has characterized fraud on the court. Teamsters, Inc. Express, See Great Coastal v. International Bhd. of (4th (fraud 1349, 1982) 675 F.2d Cir. on court must “defile the itself”). The second and important more issue is whether the facts of this present case “special circumstances” that warrant the exercise of the court’s equitable jurisdiction, despite lapse of time and despite our previous application judicata of the of doctrine res Lerman. all, After issues concerning parental rights and responsibilities are the utmost importance always and do not lend readily themselves rigid legal rules. previously We have addressed the court’s authority 60(b): arising from the action independent clause of Rule power This has been and must continue to be exercised guardedly, it as carries with it an inevitable clash of two competing principles judicial principle administration: the finality and repose judgments, which is so fundamental to our system justice, and the principle ultimate justice must be done unto the parties. (internal
Levinsky, at
(1) equity ought which judgment (2) enforced; alleged to the science, good defense to be (3) founded; fraud, judgment which the of action on cause in the the defendant accident, prevented or mistake (4) defense; of his the benefit obtaining from defendant; part on the negligence of fault or absence (5) remedy at law. any adequate the absence Id. A.2d at 537. failed to fraudulently mother alleges that
Although plaintiff here reason no plausible he offers gestation period, the ten-month disclose prior dates unaware of the relevant would have been why he divorce, irregularity. notice of at least some inquiry thus on consti period the ten-month that nondisclosure of Plaintiff asserts Accordingly, fact. he can omission of material tuted a fraudulent of the dates and significance unaware of the hardly claim that he was dispositive, plaintiff’s not taking from action. While therefore excused certainly order to the final divorce prior failure to raise the issue us to require conscience” “equity good his claim that undermines (W. W.R.C., 796-97 See N.C. 317 S.E.2d Va. judgment. void the 1984) (father’s prior issue to final raising paternity in not negligence challenging pa action precluded independent of divorce disposition ternity). view, policy in our are the fundamental compelling, more
Even adjudications.2 It is note finality require concerns statutory presumption law raises rebuttable worthy Vermont where, here, while the husband and “the child is born parentage *7 (Cum. 308(4) married to each other.” 15 V.S.A. legally wife are 1998). in the common originated of Supp. presumption parentage law, “‘a child born of a married woman was which established that was not unless her husband conclusively presumed legitimate v. Miscovich kingdom.’” the four seas which bounded the within (Pa. 1997) Miscovich, Common- 726, Super. (quoting 729 Ct. 688A.2d 2 necessarily original question paternity in the “was determined There was no Slansky Slansky, support.” 150 proceeding, granted of child v. an award Lerman). (1988) n.l, 152, (construing holding 438, A n.l our 441 553 A.2d 153 Vt. necessary predicate finding paternity to an ex-husband’s child is a Moreover, overwhelming survey jurisdictions obligation. reveals that of other adjudication paternity of weight authority of the that a divorce decree is an holds (Mass. Anderson, 546, See, e.g., 550-51 marriage. v. 552 N.E.2d child of the Anderson (Mich. 1986); DeVaux, 906, 907-08 1990); 514 Hackley Hackley, DeVaux v. v. 395 N.W2d 548, (Neb. Coburn, 1994); 640, A.2d ex rel. v. 558 644 Commonwealth Coburn N.W2d (Pa. 1989). Super. 551 Ct.
522 (Pa. Goldman, wealth ex. rel. Goldman v. 184A.2d Super. Ct. 1962)). presumption of paternity has been described as ‘“one of strongest and most persuasive known to the law.’”Richard B. v. B.B., 1995) 127, Sandra 625 N.Y.S.2d 129 (App. Div. (quoting In re 471, 472(N.Y.1930)); 170 Findlay, S.G., N.E. see also A.G. v. 609 P.2d 121, (Colo. 1980) (presumption is “one of the law”). strongest presumptions known to the Protecting innocent children from the social burdens of illegitimacy, ensuring their financial and emotional security, ultimately pre serving the stability unit all contributed to origins the parental presumption, and all help explain its enduring power today. D., (1989) See H. 110, (in Michael v. Gerald 491 U.S. addition to avoidance of illegitimacy, presumption pre vented children from becoming wards of preserved state and stability famihes); A.G., 609 P2d 124 (public policy underlying presump tion of paternity prevent is to unnecessary litigation and disruption of family relations); D., Ettore I. v. Angela 733, 513 N.Y.S.2d 739 (App. 1987) Div. (presumption of paternity preserves child’s need for continuity of family relationships); L.T., K.T. Michael v. Tina (W. 866, 1989) (defeat S.E.2d 871-72 Va. parental presumption would result in child). undeniable financial and psychological harm to Indeed, the presumption of paternity has assumed greater even significance today, alternative methods of conception unrelated to the “biology” of the presumed parent have become more common. B.L.V.B., See In 368, re
Thus, the State retains a
strong
direct
interest
ensuring that
children born of a marriage do not suffer financially or psychologi
cally merely because of a parent’s belated and self-serving concern
over a child’sbiological origins. These
conclusion,
themes underlie the
reached by
courts,
numerous
that the public interest
in finality of
paternity determinations is compelling, and that the doctrine of res
judicata therefore bars subsequent attempts to disprove paternity.
See, e.g.,
Hackley
(Mich.
Hackley,
1986)
395 N.W2d
913-14
(best
interests of child in maintaining stability and preventing
psychological trauma
prevail
must
any
over
unfairness to father
resulting from denal of challenge to paternity
years
nine
after
divorce);
B.,
Richard
523 DJB, 1991) (“Because KB v. & P.2d of (Wyo. potentially damaging relitigation paternity effect determi children, nation might judicata have innocent the doctrines of res are estoppel rigorously paternity collateral observed context.”). Supreme
As the observed in a Michigan factually Court case similar to the case at bar: if position. we were inclined to . . that res adopt
[E]ven
judicata sometimes does not
relitigation
bar
of a factual
ease,
determination decided in a prior
adopt
we would not
exception
here.
We believe
the best interests of this
child, and all children
rights
implicated by
whose
will be
today,
Court’s decision
must prevail
any
over
unfairness that
may result to this
by denying his chal-
[former husband]
lenge
paternity
years
raised nine
after
of his
entry
divorce.
Hackley, at 913.
many
jurisdictions
N.W.2d
other
have
rejected
attempts
similar
to reopen paternity judgments based on
evidence,
post-judgment blood tests or other
absent clear and con
vincing evidence that it serves the best interests of the child. See
W.,
(Md.
Tandra
v. Tyrone
1994)
S.
(collecting
cases); JRW,
cases).
Although we
understand
interest in ascertaining the true
child,
genetic makeup of the
agree
jurisdictions
we
with the many
holding
child,
that the financial and emotional welfare of the
and the
preservation of an
parent-child
established
must
relationship,
remain
paramount.
the presumptive
Where
father has held himself out as the
child’s
parent,
engaged
ongoing
an
parent-child relationship
a period
years,
may
he
not disavow that relationship and
destroy
long-held
child’s
assumptions, solely for his own self-
I,
interest. See Ettore
interests is conclusive. *9 (N.J. 1993). S.K., 36, See A.K. v. 624 A.2d 40-42 Super. App. Ct. Div. Here, Christina, father, plaintiff lived with as her for the first eight years of her Although opportunity, life. he had the did not paternity during raise the issue of the proceedings, divorce and he thereafter, continued to treat Christina as his child for six years lending parental guidance her is support. readily and It thus apparent formed, that a parent-child and it is that relationship relation- test, and ship, not the results of a genetic that must control. We no in perceive basis this case to relieve of the prior adjudication of and paternity, all of its attendant and legal financial responsibilities.3
The dissent contends that mother committed a fraud on the court by affirmatively in misrepresenting plaintiffs paternity the divorce complaint, in the stipulation incorporated decree, into the divorce noted, however, in testimony under oath. As the complaint divorce did not contain a false representation plaintiff’s paternity, only but the accurate that statement Christina was born of the marriage. The alleged misrepresentation in parties’ stipulation the concerned child custody, not paternity, and stated only that mother “is awarded the legal and physical responsibilities of the parties minor child.” This was hardly an unequivocal representation paternity. Finally, we are hard pressed to conclude that mother made fraudulent misrepresentations when, under oath notes, as the dissent transcript of her testimony is not before us.
Citing decisions, several sister-state the dissent argues also stringent standards for a finding fraud on should be in family-law relaxed context because the state is an integral party. however, We persuaded, are not that the state’s interest in the welfare of children requires post-judgment attacks on paternity should be made easier. On the contrary, the state’s concern is to ensure that secure, children’s lives remain stable and and this militates, if anything, against the liberal reopening determinations. argues dissent also a finding of fraud on the court is
compelled by our prior
Goodrich,
decisions
In re
111 Vt.
party
This is not a
seeking
case where a
third
to establish
and assume
support
child,
being
or
sought
third-party
where
putative
from a
finding
nonpaternity
father. A
essentially
in this case would
leave the child without
the benefit of
relationship,
a father-child
well-being
and the economic and emotional
N.H.,
(N.J.
accompanies
it.
Super.
Cf. M.F. v.
App.
Ct.
Div.
1991).
Brooks,
(1940), and
A.2d 325
Blondin v.
83 Vt.
Finally, our ruling this case help parents will deter other who seek, might or reasons, otherwise for financial other self-serving to I., (were dissolve their parental bonds. See Ettore 513 N.Y.S.2dat 740 court to sanction father’s denial of of paternity, “innocent victims to challenges belated would be deprived any protection law”). under the Far representing interests, from archaic these policy before, are more signficant today concerns than ever as structures become fluid and the more means conception become an Nor, our interested finally, ruling prevent does
ever more varied. child’s identity to ascertain the attempting child from later (action 302(b) parentage to establish See 15 biological father. V.S.A. twenty-one). to by up age child may brought reasons, therefore, we conclude foregoing For all of the valid in Lerman remain underlying our decision policy interests for correctly plaintiff’s request denied controlling. and trial judgment. from testing for relief genetic Affirmed.
Dooley, J., night September defendant’s dissenting. One called and said teenage daughter plaintiff Godin not her This her that he was father. telling children at her schoolwere is plaintiff first is now plaintiff’s undisputed, notice what only fully The truth came out not the father Christina. of her whether asking after Christina wrote notes various relatives father, finally admitted he was not was her and defendant apparently sister Christina. legal consequences should be Because believes there facts, him for from the true been withheld from stemming his majority disavowing he is labeled years, by fifteen destroying “long-held assump- with Christina relationship tions, making his I take it the solely majority own self-interest.” case, accusation, so the actual facts of the at variance with just public and consistent with the interest. To suggest its result that, core, at its this is contrary, undisputed facts demonstrate blaming an result victim. defending unjust classic case of I Accordingly, dissent. facts, proviso
I statement of with accept majority’s validity assertions in plaintiff’s we must assume all *11 find the court made no accompanying affidavit because to as judgment that was entitled a matter ings, ruling defendant Herdt, 448, 456, v. 155 Thayer law of the facts. See Vt. irrespective (1990) that, awarding when on (holding judgment 586 A.2d by trial must facts pleadings, accept well-pleaded alleged the court inclusion, my opinion, at the outset of nonprevailing party). Hence alleged by plaintiff of certain additional circumstances but omitted that, although sought I note has majority. plaintiff further test, really that is because defendant has step unnecessary not assertion that he is not Christina’s father and denied admitted sexually has she was active with another man plaintiff after duty to military July returned 1981.* with majority leads off the assertion that we already have held that a father cannot prevail these circumstances in Lerman Lerman, 629, 629, (1987), A.2d and that plaintiff asking us to overrule that memorandum decision. This is Lerman, an only overstatement of that judicata holds res applies paternity adjudications and prevents relitigation when litigated matter should have been Id. the divorce. at 1122.In filing his reopen judgment based on fraud court, plaintiff accepted on the judicata applied, alleged res but grounds for reopening judgment existed because of defendant’s superior fraud judgments court 1990. Unless are somehow immune from reopening any based on grounds applicable to judgment, with, actually invoking, other not warring Lerman. 60(b) majority
As the recognizes, V.R.C.E establishes two alterna- procedures (1) obtaining tive for judgment: relief from a motion (2) rule, action, relief under the an an independent including independent action “to set aside a for fraud upon the court.” Notes, Reporter’s concludes, 60. majority however, V.R.C.E although may defendant’s actions they have been a fraud on plaintiff, not a were fraud on court. This ignores conclusion our law settled subject. on this agree
I
that we should look initially to Federal Rule of Civil
60(b),
Procedure
as
especially
interpreted by Hazel-Atlas Glass
v.Co.
Co.,
Hartford-Empire
Because court, Minnesota as the point the same essentially have made ings, we Siebert, 124 Vt. v. party.” a Siebert virtually that “the state noting (1964). in most other complaint 258, 261 Unlike 187, 192, 200A.2d plaintiff. by under oath signed cases, must be complaint a divorce uncontested, action must 4(b)(1)(A). the divorce if Even See V.R.F.E 4(d). make court must The See V.R.F.E by the court. be heard testimony. See uncontradicted so doing not bound and is findings 495, 497, Davis, 266 A.2d 128 Vt. Davis involved, has held this Court interest public Again because divorce, testimony false using in a or complaint a false presenting Goodrich, 111 In re divorce, court. In fraud upon a is a to obtain a the court divorce (1940), lawyer presented a A.2d 325 divorce, stated a which, then barred because recrimination The marital covenants. faithfully performed when he adultery had been convicted that the lawyer knew of law lawyer practice from suspended We complaint. filed the misconduct, represented that it finding of this year for one because 159-60, 326-27. court. Id. at superior fraud 472, 486, A. Brooks, 83 Vt. in Blondin v. Similarly, we held to obtain residency order (1910), misrepresenting 189-90 a fraud on the court. divorce that the on the basis distinguish Goodrich majority seeks majority arguing lawyer. The attributable to the
fraud there was oath, does under pleading a false knowingly signs party, that a who court, who delivers lawyer while a fraud on the not commit a I find this distinction such a fraud. court does commit to the pleading are the “on the court” fraud and the effect both involve illogical since such an drew that this Court suggests Nothing same. Goodrich distinction. illogical majority curious. The Blondín is more distinguish attempt obtaining foreign found that that this Court dispute
does not foreign is a fraud on residency misrepresentation aby divorce. I believe recognize such that this Court does not have to to understand the holding that this is the real of the case fail as to majority’s suppositions further the Blondín relevancy of the Court’s mo- underlying any Court’s motivation. Under view tives, fraud on court is decisis holding entitled stare *13 fact, In effect has sub silentio overruled majority here. the Goodrich them, they can disagrees and Blondín it with and not because because be distinguished. cases, overruling recognize than we that the
Rather these should greater force of and is the involves Blondín Goodrich even when issue The “court in public’s paramount children. embodies the interest the care and in a White the[] maintenance children” before it divorce. (1982). White, 1108, 1110 499, v. “duty A.2d the obligation” and first the court the is consider welfare the children, it is by any agreements parties doing not bound of the in Frink, so. Frink 128 Vt. A A.2d misrepresentation of makes it for the court to paternity impossible discharge properly “duty its and first obligation.”
I it beyond question think is fraud perpetrated that defendant a superior signed complaint the court. She under oath a divorce stating that Christina of the marriage plaintiff was born between defendant and requested that defendant be child pay ordered support for Christina. not Although testimony we do have her divorce us, it is very likely before that she continued fraudulent misstate- ment in testimony, again under oath. She a that signed stipulation child,” false, Christina was “parties’ the minor that to in knowing order to induce the court to a child support against issue order plaintiff.
The majority responded has that defendant accu- technically was in rate the “born pleading marriage” because of the means actually during “born marriage,” that defendant’s statement in the stipulation equivocal, and that we do not know what defendant in actually Quite said her divorce hearing. apart from the regrettable inducement to sharp pleading represented by reading such a — complaint an invitation that is particularly unfortunate the context of proceedings where the — welfare of children is at issue majority confuses the application evidentiary a rebuttable see discussion with presumption, infra, straightforward process understanding more the actual words that appear complaint. the divorce No theory language credible interpretation would accommodate the of “born of metamorphosis of the marriage.” Regardless legal during into “born
marriage” offspring a married are the that children born to woman presumption husband, any reading I doubt the words and her one of the woman than a anything them other regard would the divorce Indeed, is the father of Godin. that Mark Godin statement is divorce decree majority’s constant insistence res holding its as to undermined judicata plaintiff’s paternity father of never was the defendant asserted Christina. ' claim that did not commit I the same reaction to the defendant have nothing equivocal There is about a signing stipulation. fraud in child,” minor whatever was “parties’ that Christina is the statement course, plaintiff might have stipulation. brought Of purpose if his claim representations about the nature of defendant’s out more factual any development. not been dismissed before adjudication has majority also determined reopened “absent clear the divorce cannot be because inherent it serve interests convincing that would the best showing I assume child, adjudication of conclusive.” this is prior has allowed make throw-away line because never been now allow him to remanding and the is not do any showing majority *14 add a rule of the best only requiring exploration so. I would is not of in of the new her light reality interest Christina holding, than would be far more desirable the Court’s father makes that irterest irrelevant. are
Finally, agree policy I do not that there reasons to compelling First, majority has reached. has majority the result impose paternity. effect of the of There greatly presumption overstated in which of would presumption are states D., majority See H. v. 491 decision has reached. Michael Gerald (1989) (upholding presumption California’s irrebuttable U.S. (Tex. 1994) statute); J.W.T., (striking In re down S.W.2d statute). 308(4) is not one of similar Texas them. V.S.A. Vermont state, In this presumption paternity. creates a rebuttable rebuttable operate only assign production. burden See presumptions 301(a). against presumption oper Once whom the party V.R.E. fact is bursts the bubble evidence that the not as presenting ates presumption the function of the is over and fact-finder presumed, fact, on the evidence paternity, must determine the here based 301(c)(3); Notes, Reporter’s V.R.E. 301. presumption. not the See id. is that the fact is not as by any The rebutted evidence presumption presumed.
My point presumption the Vermont of paternity never operates evidence, id., paternity contrary determine to the see exactly majority assign the effect the seeks to it here. By adopting rebuttable presumption, Legislature has refused to make a man fiction, legal case, a father based on a than on In rather his action. this plaintiff rebutted the presumption paternity, and it should not in way just stand his to a result.
We are left then with the majority’s
policy
assertion that our
must
preserve
stability
units
require plaintiff
to continue
his relationship with Christina whether or not
he
father. The
policy requiring the husband of the mother of a child to
accept paternity, despite biological
contrary,
evidence to the
is based
(1)
on two rationales:
stigma
because of the
and legal disability of
illegitimacy,
status;
the law should
placing
avoid
children in this
(2) the law should
intact
promote
families. See Michael H. v. Gerald
D.,
The rationales are greatly weakened by modern conditions. Ap proximately 25% children parents state are born of who are not married to Health, each other. See Dep’t Vermont Agency of Servs., (1997) Human State Vermont 1995 Vital Statistics at 31. legal disadvantages of illegitimacy have largely been eliminated as a matter of Cole, federal constitutional law.See Smith v. 553 So. 2d (La. 1989) 850 n.4 (citing Supreme Court invoking cases Equal children). Protection rights of illegitimate rights of putative fathers expanded. have See id. at 851 (citing Supreme Court cases delineating fathers). Due rights Process of biological Societal atti tudes about the obligation of biological parents to support their have changed. As the Indiana Supreme Court has observed: offspring [Stability and finality significant objectives are to be served when deciding the status of children of divorce. On the other hand, there is a public substantial policy correctly iden- tifying parents and offspring. their Proper identification of parents and child should prove the best interests of *15 the child for medical or psychological reasons. It also plays a just role in the determination of child support; we have already public declared that policy disfavors a support order a against man who is not the child’s Conversely, father. . . . there is a substantial public policy which favors a support order a man against who is a child’s father. (Ind. 1992) (citation internal S.R.I., 602 N.E.2d
In re omitted). cases Pennsylvania those discussing In marks quotation majority decision here: consistent with the which are results biological reality a a fiction for Substituting legal child, father the presumptive for the inequities in a host of (i.e. child has a husband), father. The alleged and the his identity of knowing interest in legitimate his lineal knowing include The child’s interests father. — for for inheritance and purposes, for medical descent financial reasons. other alleged and the father regard presumptive to the
With knowing father, interest legitimate both have not be forced to the natural father. One should identity of child. Further- financial for another man’s support provide in the denial more, may fiction of result legal this custody visitation either right and/or As the States alleged or the father. United presumptive H.], today’s society stated Michael Supreme [in Court parentage.” “there is no room for dual Comment, During Born Paternity Children Challenging no Wedlock, The first rationale 100 Dick. L. Rev. 964-65 majority espouses. longer supports policies was formulated when support. rationale has even less It The second unavailable. and divorce was required stay together, families were laws, break-up accepted no-fault divorce we have Through family This unit stay together. units that no seek to family longer that it can be reunited. suggests and no one apart long ago, broke from a divorce payments to make child Requiring plaintiff desirability keeping family on justified decree cannot be based units intact. public belief that it is in the majority opinion premised bond parent-child continuation somehow of a
interest force the payment continued We can force the plaintiff between Christina. perpetuate cannot this decision support, of child but we disclosure will. The father-daughter relationship against plaintiff’s fundamentally biological father has plaintiff is not Christina’s us gives it or not. The constitution whether we like altered love as his but we cannot order that many powers, expect we would guidance or her the daughter provide parental as her father. Nor can we order Christina to treat father. *16 if I thought Even policy reasons assigned by majority strong, were I would question whether they outweigh the countervailing policy Although considerations. is barring Court the door to prevent husbands from reopening divorce decrees paternity determinations, contest Legislature provided has that a range wide of persons can bring parentage action against the parent 302(a). natural to pursue support. See 15 V.S.A. Those include the child or the child’s natural representative, the natural (i.e. parent mother), the Office of Child Support under an assignment from a recipient, welfare and the Office of Support Child a parent. Id. I do not believe this decision is requested by when consistent with the Legislative policy. can, parties While other if they desire, require the court to shift the burden of child paying support onto the biological parent, where it belongs, person bearing that burden improperly has no remedy to initiate that shift.
In years, recent placed we have far more emphasis requiring responsible parents to pay their children consistent with their financial ability. This goes decision opposite direction. father escaped has any responsibility for action, his while is required to support a child who is not his. The result is just, neither nor consistent with our child support policy.
Finally, in our decision today we are rewarding fraud. The majority calls actions self-serving while ignoring that defendant misled her husband and daughter for fifteen years and then precipitated this by finally truth, case disclosing the so in doing a manner that caused plaintiff to hear this revelation from a child he thought his daughter. The majority questions why plaintiff earlier, did not act while ignoring that defendant intentionally kept from him facts upon which the majority requires that he act. We are condoning affirmative misrepresentations court, to the not of matters, collateral but of the central facts which the divorce court must act to protect the children before it.
Because this decision is inconsistent with our precedents own as well thoughtful courts, decisions from other is based on policies that are archaic and counterproductive to the concerns and interests we should respect, and is unjust I plaintiff, respectfully dissent from the decision to affirm the dismissal of plaintiff’s complaint. I would reverse and remand for a hearing and decision on the merits of plaintiff’s action to reopen based on defendant’s fraud on the superior court.