Jоhn MOUGEY, Plaintiff and Appellee, v. Clifford SALZWEDEL, Defendant and Appellant.
Civ. No. 11258
Supreme Court of North Dakota.
March 2, 1987
401 N.W.2d 509
“After speaking with his attorney, Mr. Lorenzen said, I will now go to the hospital with you. I understood this is as okay, he was now going to cooperate with me on the test I аsked him for in the first place. My answer was, we are not going to the hospital now. I no longer want that test. I have my Breathalyzer test.”
Lorenzen relies on his testimony that after the phone call to his attorney, he
“... turned around, the phone still in my hand, and I asked to go down to the hospital, I‘d like to take a blood test. And they refused me. They said, no, you‘re not going anywhere right now.”
Lorenzen argues that Deputy Thompson could have interpreted the statement set out above only as a request for an additional test beсause it was made while Lorenzen was in custody, after he had submitted to a breath test, and immediately after he consulted with his attorney. Had there been no prior offer and rejection of a blood test, Lorenzen‘s argument would be persuasive.
However, these earlier events cannot be ignored. They spawned the ambiguity in Lorenzen‘s request for a blood test and obscured his true wishes. Confusion was created by Lorenzen‘s initial refusal to cooperate with the officers and go to the hospital for a blоod test and by his statements that he did not like needles and did not want a blood test. Under these circumstances, we believe Deputy Thompson reasonably concluded that Lorenzen‘s request was an acceptance of the original offer of a blood test and an indication that he would now cooperate.
Our consideration of the particular circumstances in this case leads us to conclude that there was sufficient competent evidence fairly capable of suppоrting the trial court‘s determination that Lorenzen did not make clear to Deputy Thompson or to any other law enforcement officer that the blood test he requested was to be his own independent additional test.
Accordingly, we affirm both the order denying Lorenzen‘s suppression motion and the judgment of conviction.
ERICKSTAD, C.J., and VANDE WALLE, GIERKE and MESCHKE, JJ., concur.
Don B. Eppler of Eppler & Leadbetter, Lisbon, for plaintiff and appellee.
Mark R. Fraase of Wegner, Fraase, Nordeng & Johnson, Fargo, for defendant and appellant.
Clifford Salzwedel appealed from the judgment and the amended judgment of the district court of Ransom County, which awarded John Mougey damages in the amount of $8,426.90 plus costs of $54.50. We аffirm in part and remand for further findings.
John‘s wife, Renee, and Clifford had an extra-marital relationship which resulted in Renee‘s becoming pregnant. When the child (Jodi) was born, John had suspicions that she was not his child, but he was not sure and did not press the point with Renee. John provided support for Jodi from her birth on July 8, 1980, until the couple was divorced. He then provided support of $125 per month pursuant to a June 22, 1983, stipulation. After the divorce, the couple decided to resolve the issue of Jodi‘s paternity and obtained blood tests fоr that purpose. The results indicated that John was not Jodi‘s natural father. John then sought to amend the divorce judgment to reflect that he was not Jodi‘s father and to release him from the responsibility for Jodi‘s support. At the same time, John filed a petition to determine non-paternity. Jodi‘s guardian ad litem and John entered into a stipulation which released John from supporting Jodi after May of 1985. A judgment was entered based upon the stipulation and John was judicially declared to not be Jodi‘s father and he was released from all liability concerning her.
The State of North Dakota commenced proceedings which determined that Clifford was Jodi‘s father. Clifford was then ordered to pay support for Jodi. Upon learning that Clifford was paying support for Jodi, John commenced the action against Clifford out of which this appeal arises. John sought compensation from Clifford for support he provided Jodi prior to the court‘s determination that John was not her father. After a bench trial on the matter, judgment was entered аgainst Clifford in the amount of $8,481.40.
Clifford raises several issues on this appeal. First, he claims that the trial court erred in rendering judgment in John‘s favor because his complaint failed to state a claim for which relief could be granted. It is clear that statutory authority exists for John‘s claim.
“If existence of the father and child relationship is declared, or paternity or a duty of support has been acknowledged or adjudicated under this chapter or under prior law, the obligation of the father may be enforced in the same or other proceedings by the mother, the child, the public authority that has furnished or may furnish the reasonable expenses of pregnancy, confinement, education, support, or funeral, or by any other person including a private agency, to the extent he has furnished or is furnishing these expenses.”
“A person legally responsible for the support of a child under the age of eigh-
teen years who is not subject to any subsisting court order for the support of the child and who fails to provide support, subsistence, education, or other necessary care for the child, regardless of whether the child is not or was not in destitute circumstances, is liable for the reasonable value of physical and custodial care or support which has been furnished to the child by any person, institution, agency, or county social service board. Any payment of public assistance money made to or for the benefit of any dependent child creates a presumption that such payment equals the reasonable value of physical and custodial care or support.”
Clifford was judicially declared to be Jodi‘s father. As such, he is legally responsible for her support until she is eighteen years old.
Clifford claims that because John did not expect reimbursement when he provided support for Jodi, he cannot now demand to be reimbursed by Clifford. Clifford‘s argument fails for two reasons. First, the statute which sets forth the claim for relief under which John is proceeding has no requirement that John must have been expecting reimbursement. Second, as we will discuss later in this opinion, because John was unaware that he was not Jodi‘s father, he cannot be required to have expected reimbursement when providing support for Jodi. Public policy surely encourages a stepparent to provide support for the spouse‘s child, especially if he believes it is his natural child. But if at some time in the future he discovers that the child is not his, then, pursuant to
Because of the clear language of the statutes, John‘s complaint did state a claim for which relief can be granted.
Clifford next raises the issue of whether or not John‘s claim was barred by one of several defenses. Clifford seeks to benefit by the defenses of estoppel, waiver, laches, and accord and satisfaction. The applicability of the first three of these is ultimately determined on the basis of John‘s knowledge regarding whether or not he was Jodi‘s natural father. They have as a common element the knowledge of the person against whom the defense is being applied.1 The trial court based its ruling regarding these three defenses on the element of knowledge. The trial court found that John was unaware that Jodi was not his child prior to receiving the results of the blood tests. The court also stated that even though John may have had suspicions, he had no duty to act on those suspicions during the marriage.2 Although John did
On the basis of John‘s lack of knowledge, the trial court determined that the defenses of estoppel, waiver, and laches were not applicable and thus did not bar John‘s claim. We agree with the trial court, and therefore affirm its holding that John‘s claim was not barred by estoppel, waiver, or laches.3
Clifford also asserts that John‘s claim was barred by accord and satisfaction. Accord and satisfaction is an affirmative defense, and therefore the party who pleads it—in this case, Clifford—has the burden of proof. Shirazi v. United Overseas, Inc., 354 N.W.2d 651 (N.D.1984). Additionally, unless the evidence is of a nature that a reasonable person could draw but one conclusion, the question of whether or not there has been an accord and satisfaction is a question of fact. Shirazi, supra. Therefore, thе trial court‘s finding that there was not an accord and satisfaction was a finding of fact subject to the clearly erroneous rule. Shirazi, supra.
An essential element of accord and satisfaction is an agreement evidencing the mutual assent of the parties. Shirazi, supra; Hall GMC, Inc. v. Crane Carrier Co., 332 N.W.2d 54 (N.D.1983). The trial court held that the stipulation between John and Renee did not operate as an accord and satisfaction vis-a-vis John‘s claim against Clifford. The trial court based its holding on the fact that Clifford was not a party to the stipulation and thus he was not relеased from his obligation to John.
We stated in Shirazi, supra, 354 N.W.2d at 654:
“‘Accord and satisfaction’ has been defined by this Court as ‘a method of discharging a contract or cause of action by which the parties agree to give and accept something in settlement of a claim or demand of one against the other, where they thereafter perform such agreement.’ Campbell v. Beaton, 117 N.W.2d 849, 850 (N.D.1962). The ‘accord’ is the agreement and the ‘satisfaction’ is its execution or performance. Beaton, supra;
§§ 9-13-04 and9-13-05, N.D.C.C. ” [Emphasis added.]
It is clear from the statutes and caselaw that the defense of accord and satisfaction contemplates the mutual assent of the parties to modify their rights and obligations regarding each other. When he signed the stipulation John was unaware that he was not Jodi‘s natural father, and in turn he was unaware that Clifford was Jodi‘s natural father. Thus John cannot be held to have agreed to relinquish his rights in regard to Clifford. Furthermore, we agree with the trial court that Clifford was not released from his obligation to John because Clifford was not a party to the stipulation. The relevant portion of the stipulation provides: “Each party hereby agrees ... that this property settlement and support agreement shall constitute the mutual release of each party
Therefore, we affirm the trial court‘s holding that John‘s claim was not barred by accord and satisfactiоn.
Clifford raises, as his next issue, whether or not the trial court applied an incorrect burden of proof regarding John‘s knowledge that Jodi was not his natural child. The trial court found that John was unaware he was not Jodi‘s father until after he received the results of the blood tests. The trial court also held that although John had suspicions regarding Jodi‘s paternity, he had no duty to resolve his doubts while he was married to Renee. The trial court based its holding on the premise that the law should encourage marriage, not divorce. Cliffоrd asserts that the trial court was thereby requiring Clifford to prove his defenses by a level of proof beyond the preponderance level. But there is a difference between the level of proof required to establish a fact, and the existence of that fact. The trial court properly held that John‘s knowledge of Jodi‘s paternity is a critical element of Clifford‘s defenses. The trial court found that John was unaware that Jodi was not his natural child until he received the results of the blood tests. In essencе, the trial court found that Clifford had not proven that John knew he was not Jodi‘s natural father. The court did not require Clifford to prove by a 100 percent certainty that John knew. Rather, the court required Clifford to prove by a preponderance of the evidence that John knew, as opposed to suspected, that Jodi was not his natural child. Therefore, the trial court acted properly in determining that Clifford had not proven that John knew Jodi was not his natural child.
Clifford also raises several issues regarding damages. First, he claims that the trial court‘s award of $3,600 for child support from July 9, 1980, to July 1, 1983, was not supported by the evidence. The court determined that $200 per month was a reasonable amount, and then awarded John one-half of that amount, apparently because Renee, as the natural mother, was also responsible for Jodi‘s support. Clifford asserts that John did not prove the actual amount spent to provide support for Jodi. Thus Clifford claims the trial court erred in awarding $3,600 for support from July of 1980 to July of 1983.
John tеstified that he provided Renee with approximately $200 per month. This amount was for groceries and household supplies. John also testified that he provided shelter, transportation, medicine, and health care, as well as meat and other supplies. Clifford did not offer any evidence to prove that the support provided by John had a value which was less than what the trial court ordered.
A trial court‘s determination of the amount of damages will not be set aside by this court unless it is clearly erroneous. Jablonsky v. Klemm, 377 N.W.2d 560 (N.D.1985). In viеw of John‘s testimony regarding the support he provided for Jodi, and Clifford‘s failure to offer any proof in an attempt to minimize the value placed on John‘s support, the trial court‘s award of $100 per month for Jodi‘s support while she lived with John was not clearly erroneous.
Clifford also raises as an issue whether the trial court erred in awarding John $500 for the provision of health insurance for Jodi. Clifford asserts that the cost of health insurance is not a necessity and therefore not recoverable, and, in any event, that the record does not support the award of $500.
As we have previously discussed, the trial court properly held that statutory authority existed for John‘s action under
John offered proof on the cost of health insurance. Clifford makes much of the fact that John would have paid the same amount regardless of whether or not Jodi was covered. But it is not clear from the record that John would have sрent as much because there apparently is a difference in the cost of health insurance for a family and for that of a single person plus a dependent. Moreover, regardless of whether or not John spent more to insure Jodi, he did provide a benefit for her; namely, health insurance. The statutory provisions clearly state that John is entitled to be reimbursed for the reasonable value of that benefit. In view of the evidence presented, the trial court‘s award of $500 for health insurance is nоt clearly erroneous.
Lastly, Clifford asserts that the trial court erred in awarding John the cost of attorney fees, costs, and expenses in John‘s action to establish his non-paternity. Clifford claims that if John wants to recover these costs, Clifford should have been made a party in the non-paternity action.
We again return to
“the obligation of the father may be enforced in the same [action to establish paternity] or other proceedings by the mother, the child, the public authority that has furnished or may furnish the reasonable expenses of pregnancy, confinement, education, support, or funeral, or by any other person, including a private agency, to the extent he has furnished or is furnishing these expenses.” [Emphasis added.]
We also note
“The court may order reasonable fees of counsel, experts, and the child‘s guardian ad litem, and other costs of the action and pretrial proceedings, including blood tests, to be paid by the parties in proportions and at times determined by the court.”
If
For the reasons stated, we remand to the trial court for factual findings regarding the awarding of costs incurred by John in establishing his non-paternity. The trial court may make the necessary findings based upon the evidence already received, or if the trial court so determines it may hold a hearing to receive further evidence. In all other respects we affirm the decision of the trial court.
ERICKSTAD, C.J., and MESCHKE and GIERKE, JJ., concur.
LEVINE, Justice, concurring and dissenting.
I concur in that portion of the majority opinion remanding for a redetermination of costs and attorney‘s fees. I dissent from the affirmance of the remainder of the judgment and amended judgment. I would reverse and remand for additional findings by the trial court on the applicability of the defenses of estoppel, waiver and laches.
A third child was born to Renеe in November 1982. Clifford was the father. In September 1982 Renee told John that the third child was not his. The trial court found that after Renee became pregnant with her third child in February 1982, John Mougey “felt ninety percent certain that he was not the father of Jodi Mougey.” In my view, the only conclusion to be drawn from such a finding is that John had reasonable knowledge in February 1982 that he was not the father of Jodi so as to place him on inquiry. His failure to act on that knowledge for three years thereafter raises the issues of estopрel, waiver and laches as to his right to recover damages for those three years. Under the cases cited in footnote 1 of the majority opinion, the trial court should determine whether the elements of such defenses, other than knowledge, have been established.
It is, of course, evident that our concern is directed toward Jodi, not Clifford or John. The statutes under which John claims relief are intended to promote Jodi‘s welfare by enlarging the availability of resources to provide child support. Thеy were not intended to indemnify a presumptive father who acquires reasonable knowledge of his non-paternity but for his own personal advantage (to gain custody of a child he fathered) undertakes no reasonable inquiry and does nothing to establish his non-paternity for three years.
I do not agree that expecting a man in John‘s position to act promptly undermines the policy of the law to foster marriage. Indeed, the trial court found that problems in this marriage preexisted Jodi‘s birth in 1980 and that the partiеs ceased living together in September of 1982. The only thing to be fostered by condoning John‘s vacillation and delay is the detriment to Jodi caused by the prolonged uncertainty of her status with John, the only man she considered to be her father. John‘s refusal to exercise visitation with Jodi following the parties’ divorce in June of 1983 fortifies the finding that his knowledge of non-paternity far exceeded mere suspicion or speculation. Furthermore, the parties were divorced in June of 1983 so that
I agree with the majority‘s analysis that the trial court‘s ruling that the defenses of estoppel, waiver and laches were not applicable was based on its finding that John lacked knowledge. Because I believe that finding by the trial court to be clearly erroneous, I would reverse the judgments and remand for additional findings on the applicability of the defenses. I therefore respectfully dissent.
GERALD W. VANDE WALLE
JUSTICE