*1 2015UT 59 Corbett, David M. Pankratz and Criag L. City, Appellant.
Salt Lake KIELKOWSKI, Joshua Steven Appellant, and Petitioner Dupaix, B. Salt Reyes and Laura D. Sean City, Appellee. v. Lake KIELKOWSKI, Respondent
Amanda C. Appellee. Judges J. FREDERIC VOROS and Before JR., L. ROTH and MICHELE STEPHEN 20130225-CA. No. M. CHRISTIANSEN. Appeals Court of of Utah.
Decision 12, March PER CURIAM: appeals Appellant Manuel Villeda from 'the trial court's denial his motion made 4(f) to rule of the Utah Rules of
pursuant State, Manning
Appellate Procedure 628, to reinstate his him
appeal rights appeal and allow from pro
the revocation and reinstatement of his appellate counsel filed a
bation. Villeda's complying California,
brief
Anders v.
87 S.Ct.
(1967)
Clayton,
and State v.
(Utah "objectively That brief demon
strate(s] that the issues raised are frivolous." (Utah Flores,
State v. curiam); Ct.App.1993) (per also see State v. 304, ¶17,
Wells, curiam) (per (stating brief Anders potential appellate
must brief all iden issues
tified either the defendant or counsel
objectively demonstrate that those issues are
frivolous). upon Based our review of coun independent
sel's brief and our examination record, appeal we determine that the frivolous, wholly accordingly, we af
firm the decision the district court and
grant counsel'smotion to withdraw.
T2 Affirmed.
692
Judge L. ROTH STEPHEN authored Opinion, Judge in which JAMES Z. DAVIS Judge concurred. Senior RUSSELL W. dissented, opinion.1 BENCH Opinion ROTH, Judge: *3 (Husband) {1 Joshua Steven Kielkowski appeals denial of from court's his the divorce decree to custody, parent-time, support address and child, marriage who was born his (Mother) but to Amanda C. Kielkowski2 biological offspring. is not Husband's who presumption conclude that of Hus We adjudicated by band's was neither conclusively district court nor rebutted by Husband's statement in his divorce fil ings that there were "no children at issue in consequence, As a the dis denying trict court erred in di voree modification without first ad dressing claim. reverse We proceedings remand and for further ac cordance with this decision.
BACKGROUND application T2 This case involves the presumption effect of the estab by lished the Utah Uniform (the Act) in the of a context di petition. vorce modification Under the Par Act, entage presumption a rebuttable arises gives the husband of woman who birth is the father of the 78B-15-204(1)(a) § child. Utah Code Ann. (LexisNexis 2012)3 The Act also prescribes presump the means which that 78B-15-204(2); § can be tion rebutted. T8B-15-607(8) (providing pre id. Wentz, Bryant McConkie and J. Adam D. sumption- through genetic be rebutted City, Appellant. Salt Lake testing, pre evidence that the mother and Booher, Troy City, engaged L. Salt Lake Noella A. father neither nor sumed cohabited. Sudbury, Morgan, Appellee. relationship and T.R. in a at the time of the sexual Bench, pertinent provisions 1. The Honorable Russell W. Senior 3. Because the of the Parent- Judge, by special assignment sat as authorized Act have not been modified since birth of generally law. See R. Jud. Admin. 11- case, at issue in this we cite the current the child 201(6). for the . codification of the Utah Code Annotated reader's convenience. Although longer Mother no uses the last name Kielkowski, we retain the case Kielkowski name consistency v. Kielkowski here for with the dis- proceedings. trict court parties' minor He child." through adjudication conception, or child's father). asked the court to rule on his not the the husband is Child, obligations specifically on issues July Mother in Husband married legal custody, parent-time, and pertaining to During they separated in 2007. objected, support. arguing child Mother pregnant became separation, Mother biological Husband was not the father of (Child). Child was born man's child another effectively Child and that he had rebutted aware that Child was in 2009. Husband was paternity when he swore son, he had a relation- not his but under oath the verified divorcee from his birth until sometime ship with Child that there were no children at issue. birthday. after his second hearing parties obtained a T7 After a on the modification T4 In March petition, benefit of counsel. domestic relations commissioner default divorceewithout the relied on the Online Court Assis recommended that the district court "not use Husband (OCAP) Program prepare a verified equitable powers change tance the divorce [its] petition, divorce from which the divorce de decree" because Husband knew there was a *4 automatically generated. In the veri cree during yet child born and stat- represented, by petition, fied Husband ed in the verified divorce that there box, checking applicable that there were no children at issue and then made no were marriage" be "no children at issue obligations effort to establish his and questionnaire the OCAP during pro- as a father to Child the divorce cause he understood asking only about children. to be ceedings. objected Husband to the commis- result, the final divorce decree stated As a sioner's recommendation on the basis that "(there simply that are no children at issue Decree of Divorce failed to address "Itlhe marriage" provisions in this and contained no child, any issues related to the minor regarding custody, parent-time, or marriage, including Child's who was born into the support. respond Mother did not to the custody support child He issues." re- petition, granted divorce and the decree was quested hearing before the district court. by default.4 responded Mother district court ade- that the quately addressed the issue of children be- For about six months the divorcee after found, rep- cause it based on Husband's own finalized, Mother allowed Husband to resentations, at there were no children parent-time exercise with Child and Husband marriage. issue in the regular payments made to Mother that he support. considered to be child Sometime {8 hearing objec- After a on Husband's April adop prior to Mother initiated an tion, adopted the commis- the district court proceeding tion to allow her new husband to sioner's recommendation and denied Hus- adopt began denying Child. She Husband modify. band's to The court stated and, January to Child in around access undisputed that "it is is not [Husband] time, refusing the same started Husband's the natural father of the minor child" and support payments.5 child although Husband and Mother "were 2012, just birth," April year T 6 In over a after the married at the time of Hus- [Child]'s finalized, peti- "prepared signed legal divoree was Husband filed a band a formal decree, modify [he] tion to the divorce which he document under oath wherein affirma- requested "modify parties' tively that the court stated there were 'no children at issue marriage, rebutting pre- because the Decree fails to address thus [in this] Decree payments. the termination of the She contends In her of service acceptance petition, gave Judgment by Mother her "consent that De- that after Husband moved out of the marital against home, [her] fault be entered at time ... grandfather to reside there his continued in accordance with the terms of the Verified grandfa- paid $300 and Husband a month for the Divorce Petition." Mother, According Husband ther's rent. to stopped making payments September 2011 disagrees 5. Mother with Husband's characteriza- grandfather out of the because the had moved payments support tion of his as child and with marital home. description his that led circumstances to modification, prohibited is the father of Husband is from as- sumption that he appeals. Husband [Child]." serting now pre- because the required OF ISSUE AND STANDARDS REVIEW sumption to be asserted the divorcee ~ proceedings. challenges the 19 Husband district deny petition modify his court's decision to 1 12 conclude that the district court did We "generally review[ ] the divorcee decree. We adjudicate not of Child modify a divorce decree the determination to any provisions per- and that the absence of Sill, for an abuse of discretion." Sill v. taining to Child is a basis for modification. (citation 173, ¶8, UT and Accordingly,we remand for the district court omitted). quotation internal marks Howev adjudicate parentage under the er, to the extent "that determination is based Act, outcome, Depending on the the court law," here, on a conclusion of as is the case may modify modify then or not the decree as "we review modification [the decision] appropriate. (citation quo correctness." and internal omitted). tation marks Adjudication Parentage I.
ANALYSIS [ Act, 13 Under "[a] man is presumed to be the father if ... of a child he 10 Husband claims that the district court and the mother of the child are married to denying erred in each other and the child is born purpose adding divorce decree for the Utah Code Ann. 78B-15- provisions support for the (LexisNexis 204(1)(a) presump- This Child, legally presumed who is be Hus- *5 automatically upon tion arises the child's Parentage band's son under the Act. Accord- birth remains in effect "until that status Husband, ing to the failure of the default is or in rebutted confirmed as set forth [the divorcee decree to take Child into account Act]." 78B-15-102(20) (de- § Parentage constitutes a material omission sufficient man, fining "[piresumed by father" as "a who warrant of modification the decree. The dis- Act], operation Parentage of law [the explained trict court denying that it was the recognized is as the father of a child until modification because Husband had that status is or rebutted confirmed as set effectively any presumption par- rebutted Act]"); Parentage forth in [the see also R.P. entage represented when he in under oath KSW., 838,112, the verified that there divorcee (explaining 1084 that when "a man 'and were "no children at issue in this the mother of the child are married to each {11 grounds Mother asserts a number of other during and a child is born the mar- upholding the district court's decision. riage, presumption a arises that the man is First, already she asserts that the court ad- (quoting the child's Utah Code judicated paternity in the divorce decree's 78B-15-204(1)(a))). § Ann. Once estab- provision, represen- based on own lished, presumption challenged this can be tation, marriage produced that the no chil- only "by presumed the father or the mother" Second, argues dren. she that to overcome "in the course of the the judicata adjudication, the res effect of the pleadings at [parties'] the time of the di- Husband had to demonstrate substantial a 78B-15-607(1). $ voree." Utah Code Ann. circumstances, change in which he did not. successfully presumption pa- To rebut the argues Mother also that if Husband is con- ternity, challenging party provide must tending that the divorcee decree contains a (a) genetic test results exclude the represen- mistake based on Husband's sworn father; presumed tation, required timely then he was file a 60(b) (b) motion under rule of the genetic rebuttably Utah Rules of test results Civil identify Procedure to set aside the divorce de- another man as the father in cree, Finally, which he did not do. Mother [another accordance with section of the Act]; contends that if even there is a basis for
695 (c) 7 59 father and evidence that rassing repetitive actions cohab- of the child neither
the mother (quoting Elmer v. (Utah 1989))). engaged in sexual intercourse ited nor probable other with each counters that he did not Husband conception; or time of intentionally repudiate presumed parent (d) part. adjudication under this age simply but that he misunderstood the 78B-15-607(8). is § When the mother question regarding children of the OCAP challenging party, she must also "show Therefore, contends, marriage. he it preponderance a automatically gen finding, which was court's evidence interests of the child to would be in the best in erated based on his statement the verified parent-child relationship." disestablish the "adjudica petition, does not amount to an T8B-15-607(1)(c). §Id. agree tion" of the issue. We Husband.7 contends Husband T14 Mother presumption repre when he challenged the Adjudication legal process of "[the 1 16 is in for divorceethat sented the verified resolving dispute." Black's Law Dictio no children at issue in this mar are "ItJhere Act, nary parent 47. Under the clarify riage" and then failed to his relation "adjudicate[d]" question "the when entry of di with Child before the ship pleadings has been raised asserts that the vorce decree. She further a divorce and the tribunal addresses the court, effect, concluded that district issue and an order." Utah Code Ann. enters successfully presumption had been rebutted 78B-15-607(1)(a); § § see id. T8B-15- also through finding in the default decree that ("'There 607(4) if is no to rebut children at issue in this mar "[tlhere are no properly father was served riage." Consequently, argues, she the court adjudication and there has been a final "adjudicated" parentage and Husband is now issue."). addressed what it means to We . "estopped raising [paternity] issue." from "adjudicate" parentage under the ®B)(d). 78B-15-607(1)(a), In See id. in the context of a default divorce decree regard, making to be a res Mother seems Reller, in Reller v.
judicata argument;
issue that has been
"[aln
P.3d 813
decision,"
definitively
by judicial
settled
(9th ed.2009),
Dictionary
Law
117 In
the district court had
Black's
*6
again
a default divorce
cannot be raised
to the court absent a
entered
decree that stated
change
Taylor
had
substantial
in cireumstances.
that the husband and the wife
one child.
¶13,
Ellison,
modify
Id. 12. The husband later moved to
custody arrangement.
Id. The wife re
(noting
petition
a
to
child
that
the
modify,
only
brought
sponded
when
is a
with her own
to
in
can
be
there
asserted,
time,
change
substantial
in cireumstances not con which she
for the first
that
templated by the divoree decree
the husband was not the child's father.
Id.
because
sought
join
"principles
judicata
of res
...
'favor the one
She then
to
another man-the
adjudication
prevent
biological
child's actual
father-so
that he
time
of a matter
to
the
burdening
adjudicated
father
the
undue
of the courts and the ha-
could be
as the
"
child,
party attempts
presump-
right
'protected by
If
which is
...
the
6.
either
to rebut the
his
a
"
S.A.,
through genetic testing,
tion
"the tribunal
(Quoting
Constitution.'
re
United States
In
307, ¶12,
1166.)
disregard genetic
test results that exclude the
Because
if
or declarant father
the tribunal de-
in
we resolve this issue Husband's favor on other
inequitable"
it would be
not
termines that
or
grounds, we do not reach his constitutional
disrupt
in the child's best interest to
the relation-
Thurman,
claim. See State v.
P.2d
'"
ship
the child and the
between
father.
(Utah 1993) (noting
'judicial restraint
78B-15-608(1)(b),
(2) (Lexis-
§
Utah Code Ann.
requires
reaching
that courts avoid
constitutional
Nexis
deciding
questions
necessity
in advance of the
of
(quoting Lyng v.
Indian Ceme
them'"
Northwest
using
7. Husband also contends that
his state-
Ass'n,
485 U.S.
108 S.Ct.
Protective
tery
conclusively
in
ment
the verified
over-
(1988))).
determination" of Child's best
interest was
runs
specific
counter to the
Act's
*7
ever
in
party
made
this case. Neither
requirements
raised
pre
for the rebuttal of the
parentage
the
pro-
issue
the divorce
sumption
paternity
pervasive
of
and its
focus
ceedings,
any
much less offered
of the evi-
on a child's best interest
aas
core consider
required by
dence
Parentage
the
Act to re-
in assessing
ation
presumption
whether
the
§§
has been overcome.
Id.
but
statutory
78B-15-
or confirm the
607(1)(b)-(c),
-608(2);
L.B.,
R.B. v.
2014
that Husband
Although
was Child's father.
cf.
¶
representation
270, 16,
App
there were
(observing,
UT
697
reopen
if the mov
away
"courts to
determinations
stipulate
the dis
"parties cannot
ing party can demonstrate
a substantial
responsibility to con
statutory
court's
trict
contemplated
change in cireumstances" not
analysis").
seems
It also
a best-interest
duct
modification is
by the decree itself and that
of the Parent
contrary
purpose
ato
stated
Smith,
child.
793
Act,
in the best interest of the
presumed
maintain [a
is "to
which
judicata aspect
"'[Thhe
over a P.2d at 410.
res
obligations
father's]
"
rule,
however,
[changed-eireumstances]
readily
is not
when another
child"
"
323,
App
'always ...
See
to the best inter
identifiable.
is
subservient
¶¶ 18-19,
(alluding to the fact
Taylor,
n.
291 P.8d 813
Mother contends that a modifi
adjudicated
not
in cation
paternity
issue of
was
"the
petition
improper
is
nevertheless
changing
vehiclefor
divorce
decree,
judicata
...
initial
res
and collat-
decree
parties
do not bar the
from
estoppel
eral
the circumstances of this case because
finding
court's
issue").
that
there were no children
raising the
subsequently
produced
from the
was based on
representation
Husband's own mistaken
$23
Husband filed the
Thus,
petition.
argues,
the verified
she
Hus
modify in
case on the basis that
only remedy
band's
was to file a motion to
adjudicate
decree did not
default divorce
60(b)(1)
set aside the decree under rule
parentage and left unaddressed
Child's
the Utah Rules of Civil Procedure. See Utah
relating
custody,
contingent
par
concerns
60(b)(1) ("On
.,
R. Civ. P.
motion ..
the court
ent-time,
support.
appellate
courts
may
justice
in the furtherance of
relieve a
previously held that when a decree
have
does
(1)
party
judgment
from a final
...
[for]
significant aspect
par
not address a
...").
argues
mistake.
She further
that even
circumstances,
ap
modification
ties'
be
if
proper
could
propriate
"to meet the need created
60(b)
ly
motion,
be construed as a rule
it was
provision." Thompson
absence of a
60(b)(1)
untimely because rule
motions must
(Utah 1985)
presumption is is not any appropriate and to make mod- contrary, plain language. To the the the act's ification. pre an automatic Act creates husband is the sumption that a mother's BENCH, Judge (dissenting): Senior any during their mar father of child born 78B-15-204(1)(a). respectfully § 4 I dissent. Ann. 33 riage. Utah Code presumption endures until rebutted. That representa- « 34 Based on Husband's own 78B-15204(2). only § It is when a moth tions, the default decree of divorceedefinitive- challenge seeks to this er or father ly held that there were "no children at issue procedural presumption that the restraint in this Husband now claims he "Paternity play: into of a child con comes amade mistake and seeks to assert to or a with a ceived born marriage. a child born the may presumed father ... be raised judgment, T85 To set aside a default a presumed father or mother at time party proceed under rules. must our Rule prior filing action divorceeor in the 55(c) of the Utah Rules of Civil Procedure pleadings time at the divorce provides, good "For cause shown the court 78B-15-607(1) (emphasis parents." and, may entry set aside an of default if a added). party attempted neither Because entered, judgment by may default has been presumption rebut the that Husband was likewise set it aside in accordance with Rule prior through Child's father to or the divorcee 60(b)." 55(c). today, Utah R. Civ. P. Until proceedings-and we have determined that always only held Utah courts have presumption was not rebutted way judgment is in set aside a default decree itself the cireumstances-the 60(b). provisions accordance with the of rule presumption that Husband is Child's See, Anderson, e.g., Calder Bros. Co. v. 652 Thus, in effect. is still (Utah 1982); P.2d 926 Maxwell v. Max may presumption through address a well, (Utah Ct.App. 406-07 proceeding, though parent modification even 1990); Schettler, Amica Mut. Ins. Co. v. 768 initially was not raised in the divorce (Utah Ct.App.1989). P.2d 969 This pleadings, because a modification re recently principle applied black-letter was in opens proceedings through the divorcee a dis involving the context of a case continuing jurisdiction. trict court's See ¶15, Act. Relier v. ¶ Elison, Taylor 60(b) (stating that rule is the (explaining may P.3d that a district court "only path setting available" for aside a de grant 'reopen a modification (internal quotation fault divorcee decree decree if [the divorce] material facts were not omitted)). marks before the court or if the circumstances ... (36 60(b) Husband has never filed a rule (omission subsequently changed" had motion. But even if we construe Husband's original)(quotingElmer v. 776P.2d 60(b) motion, as a rule it (Utah 1989))). 599, clearly late. Husband contends filed too 131 We therefore remand this case to the original repre- that he was mistaken district court to address the issue. sentation that there are no children at issue. requires accept, 60(b) This the court to as a base- provides Rule motion and "[on line, that Husband is the father. upon just, are the court such terms as however, party, may attempt justice party to rebut relieve a the furtherance of Either order, provided judgment, proceeding as under the Par- or from final (1) mistake, entage following Act. for the reasons: inad- vertence, neglect." surprise, excusable or are, however, There R. Civ. P. making limitations for such a mo- time
strict made within a "The motion shall be
tion: (1), (2), reasons time and for
reasonable (3), judg- months not more than 3 after *11 added). (emphasis The default
ment." on March
decree here was entered action more than
and Husband initiated this was there- year April later-on 2012. It timely.
fore not reasons, I would affirm the
37 For these petition. denial of Husband's
district court's AppUT 58 Utah, Appellee, Plaintiff
STATE SANCHEZ,
Wilbert Defendant Appellant.
No. 20121030-CA. Appeals
Court of of Utah.
March