*1 original promise which falls outside statute frauds. Rodney TREIMER, Petitioner-Appellant, Sue LETT and Darrin J.
Respondents-Appellees. Lett, petitioner-Appellant,
Connie Sue
Rodney Treimer and Darrin J.
Lett, Defendants to cross
petition-Appellees.
Court of of Iowa. *2 Rodney trial. did dissolution
the scheduled
appeal the court’s decision.
concerning
order
temporary
In a
Rodney
court found that
and
Q.
and Richard
Barrett
Affeldt
James W.
father, but
Darrin
biological
that
was Jena’s
Pirnie, P.L.C.,
Rapids,
&
Cedar
Elderkin
he was
her
father because
was
established
Lett.
appellant
for
Connie
time
to Connie at
of Jena’s
married
Con-
court also determined that
birth.2
Wehr, Berger,
&Lane
Edward N. Wehr of
carry
prove it
had failed to
her burden to
nie
Stevens,
Rodney
Davenport,
appellant
to
best
interests
overcome
Jena’s
Treimer.
paternity. Darrin was
Darrin’s established
Sporer
Sporer
Law
F.
Theodore
physical care
temporary primary
awarded
Firm, P.C.,
appellee Darrin Lett.
The dissolution decree
all three children.
tempo-
incorporated the earlier
specifically
SACKETT, C.J., and
Decided
order, finding
failed to
rary
that Connie had
MAHAN,
VOGEL,
HUITINK, STREIT,
carry
to overcome the establish-
her burden
JJ.
appealed
paternity.
Darrin’s
ment of
cross-appealed.
from the decree
Darrin
VOGEL, J.
appeal from the dissolution de
While
Rodney
Lett
Treimer and Connie
a
to
pending, Rodney
filed
cree was
sepa-
dismissing their
court order
the district
paternity. Connie filed a cross-
establish
paternity.1 Rod-
petitions to establish
rate
seeking
Rodney
have
determined
petition,
to
erred in dis-
ney argues the district court
to
child
be Jena’s father
ordered
to
standing.
missing
petition for lack
his
support. Darrin filed motions to dismiss
the district court erred
Connie asserts
Darrin’s
petitions. The court sustained
both
dismissing
cross-petition
misapplying
motions, finding
not have
did
affirm
preclusion. We
the doctrine of issue
action be
bring
to
as to
Rodney,
reverse
the district court
father” or
was not the “established
cause he
Connie, and remand.
“legal
representative.”
See Iowa
procedure.
Background
Con-
600B.41A(3)(a)(1).3 It
Con
also dismissed
Lett were married
Decem-
nie and Darrin
grounds
pre
cross-petition on
of issue
nie’s
16,1983.
dur-
Three children were born
ber
judicata.
clusion/res
Julia, Justine,
marriage:
and Jena.
ing the
appeal from the
In
on the
our decision
decree,
the trial
we revoked
April
dissolution
a
Connie filed
dissolution
custody of Jena
joint legal
court’s award
petition,
In
she
Jena was
stated
1995.
gave
legal
to Connie.
sole
Rodney’s,
Darrin’s child.
at-
7-484/96-2148,
slip op.
No.
to
in the dissolution
tempted to intervene
1997). However,
(Dec.29,
we did not
7at
paternity, but the court denied
establish his
support for
days
require
just
request,
filed
before
which was
repre-
Although
father of
captioned
a
1.
as
(Emphasis
Iowa Code sec-
action falls under
of these
sentative of
added).
-
600B.41A actions
tion
language of section
Compare
broader
the much
fa-
lists Darrin as her
2. Jena’s birth certificate
600B.8,
indicating
have
those who
144.13(2).
ther,
required
Iowa Code section
paternity:
action to establish
part:
pertinent
provides, in
section
brought by the moth-
"The
time
was married either
If the mother
er,
or if the
interested
or other
birth,
hus-
conception or
the name
charge, by
the author-
a
or is
as the
on the certificate
band shall be entered
its
After the death
ities
father of the child...
disability, it
of her
mother or in case
600B.41A(3)(a)(1) expressly
section
acting
by the
also
standing to file an action
who have
limits those
(Em-
guardian
through
or next friend.”
its
phasis
paternity may
"A
only by
the mother of
testing,
agreed upon by
because she is not his
child and thé
and as
“equitable
However,
trial court
recognized by
father”
the court.
Darrin is
claim. Id. at 7 n. 1.
Jena’s “established father.” His name re-
mains
beyond
on the birth certificate but
Scope
review.
Actions to estab
that,
currently
his role is
limited.4 Because
lish or
*3
paternity
are triable as
“equitable par-
the trial court
ordinary
proceedings.
Iowa
Code
argument,
ent” doctrine
and this court af-
600B.10, 600B.41A(5);
§§
Dye Geiger,
v.
554
firmed,
Darrin was not ordered to
(Iowa 1996).
538,
539
This
Jena.
Iowa
comes to us after the
granted
district court
600B.41A(6).5
§
Darrin’s motions to dismiss. Our review of
procedure
The
paternity
to overcome
is
motions to dismiss is for correction of errors
strictly
statutory.
Iowa Code
4;
R.App.
of law.
Iowa
P.
State ex rel.
§ 600B.41A.
Rodney’s
The unassailed fact of
Allen,
(Iowa
Johnson v.
569 N.W.2d
144
stipulated
judicially
to and
1997).
rec-
A motion to dismiss is not directed to
ognized
case,
throughout
pro-
has failed
court,
the discretion of the
but rather
cedurally to overcome Darrins status as “es-
legal grounds.
based on
See Renander v.
tablished father.”
now seeks to
Ltd.,
Inc.
500 N.W.2d
A
overcome Darrin’s “established father” status
ruling
on a motion to dismiss “does
pursuant
600B.41A,
conclusively
determine the merits of the
Connie seeks the same end in order to collect
presented
petition.”
issues
in
City
plain reading
Yet under a
Electronics, Inc.,
City
Hagen
Iowa
statute, Rodney
standing
petition
lacks
(Iowa 1996)
(quoting City
paternity
overcome Darrin’s
of Jena. This
Ankeny
Armstrong,
perhaps
is a
anticipated by
situation
App.1984)).
It
ais
result of the conflict
Rodney’s petition
pa
to overcome
“equitable parent,”
between the term
as de-
ternity.
pro
Code section 600B.41A
law,6
fined
case
and the term “established
vides for an action to overcome
parent,”
clearly
which has not been
defined.
“only
Such action
the mother These circumstances leave Jena as a child
child,
of the
with an “established father” who has no cus-
representative
responsibility
todial
nor
these
and a
father who has no
600B.41A(3)(a)(1)
added).
§
(emphasis
or visitation.
differs from the
who
file an
Returning
question
to the
before us on
action under
pater
600B to establish
appeal,
Rodney’s
we determine
status as bio-
nity:
mother,
“the
or other interested
logical father does not
upon
confer
him
or if the child is
charge,
to be a
to overcome Darrin’s
support.”
the authorities
with its
paternity
pursu-
as the “established father”
600B.8
requirements
ant to the
of Iowa Code section
legislature clearly intended to limit who could
600B.41A. We therefore affirm the district
Rodney’s petition.
court’s dismissal of
At odds with section 600B.41A are the
plain
facts of
biolog-
pater
this case:
is the
proven
nity.
ical father of
with blood
ap-
Connie claims our decision in the
primary
including
Visitation remains for the
benefit of
and the
establishment of a
half-siblings.
support obligation
Jena and the
pursuant
to section 598.21
provision
pursuant
and visitation
to section 598.41.
5. This section
b.
If the
equitable parent
court dismisses the action to
adopted
over-
6. The
doctrine was
in
paternity
preserves
come
Marriage Gallagher,
deter-
Iowa in In re
of
being
subsection,
mination under this
previously rejected
court shall
after
Ash,
establishing
parent-child
enter an order
beginning
that the
in a line of cases
with Petition of
relationship exists between the established father
resulting consequences except for Jena All concur judges inequitable.” are “severe and partially who dissents. argues the dismissal SACKETT, (concurring part; J. correct based on doctrine Connie was senting part) applies Issue preclusion. part. part I concur in and dissent party attempts to
when a majority peti- that Connie’s concur with decided in a has been raised and which I also not have been dismissed. tion should Moines, City Hunter v. Des action. majority Rodney is the agree (Iowa 1981); Matsui *4 majority, the father of Jena. Unlike App.1996). King, I I has and would believe issue The four elements of reverse, too, petition. the of his dismissal (1) in the the identical are: issue must be a situation majority suggests this is (2) actions; must raised the issue be two anticipated not the (3) action; litigated prior the in the Code section 600B.7 relevant to the must be material and (4) action; Proceedings paternity and to establish prior of disposition father, compel support in the of the issue determination provisions with the necessary in accordance and essen- action must They chapter. shall not exclu- judgment. tial to may be sive other Matsui, Ackley (citing equity. principals on law available Haupt, N.W.2d Bank v. State (Iowa 1990)). the dissolution asserts § 600B.7 overcoming decided biological father and Rodney is Jena’s it under cannot previously termi- have not been those dismiss, prevail 600B. To motion Principals equity nated. dictate the court Darrin needed to convince an established either be considered should her to relief claim would entitle paternity ac- or allowed to provable under under state of tion. petition. Rittscher allegations of the State, On dismissal, we appellate
our review allegations light in the most
construe those doubts resolved to Connie
favorable Stanley Fitzgerald, 509 favor. In determin dissolution, ing custody in the MILLIS, E. Jr. and Bonita Gordon necessary for court it was not we find Millis, Appellants, Winter, 598.41(3); (both listing 165, 166-67 HUTE, Appellee. D. Theresa cus determining to be factors considered preclusion does tody). conclude issue of this the circumstances apply under Iowa. Court dis case. We reverse district remand cross-petition and of Connie’s missal proceedings pursuant
this matter for further of this 600B.41A. Costs among three split equally are
parties.