*1 susрended with a minimum term of sus- years commencing March
pension of three
2, 2000, subject to the and reinstatement
terms outlined above.
BY THE COURT Page
Alan C.
Associate Justice Benjamin
In re the Matter of WITSO, Respondent,
G.
Mary OVERBY, al., Appellants. C. et
No. C6-99-1618. Appeals
Court of of Minnesota.
March *2 Daudelin, Walling Berg,
Susan A. & P.A., Minneapolis, respondent. for Hill, Larkin, Hoffman, Daly John R. & Ltd., Lindgren, Bloomington, appel- for lants. DAVIES,
Considered and decided LANSING, Presiding Judge, Judge, and HARTEN, Judge.
OPINION DAVIES, Judge
FACTS Benjamin Respondent brought Witso April this action in 1999 to establish that M.R.O., he was the father of a child born appellant Mary Overby April Mary Overby is—and was at the time of conception аp- and birth —married to pellant Overby. She concedes she James had sexual relations with about conception. the time of M.R.O.’s Overbys moved to dismiss Witso’s paternity petition, asserting that he lacks standing because he does not have the positive needs to genetic-test evidence he father; presumed make him a it is not that, if fa- disputed he were ther, standing. have The Over- he would bys sign a release to allow have refused testing. The district court denied the motion to dismiss and ruled that Witso him a showing gave made a genetic testing, notwithstanding James Ov- presumed paternity as the husband erby’s mother. court ordered test- The district results; it ing and sealed the then certified important question: as and doubtful hav- biological When the mother admits ing hаd intercourse with the during period possible con- father * * * ception does mother and standing compel have testing to [genetic' child to submit to paternity pre- a basis for establish sumption]? question certified reflect the II.
To make the issue, actual we recast it as follows: properly “Whether the trial court Must a action be dismissed interpreted act ais petitioning law, lack when the which we review without deference requisite sexu- putative father shows to the trial court’s conclusions.” In re *3 genetic had nqt C.M.G., al contact but has test- 555, 516 N.W.2d Welfare of ing, might genetic which establish the (Minn.App.1994). that a standing basis for arises from Parentage The Minnesota Act positive genetic test? 2(1) 257.57, § provides, in Minn.Stat. subd. in question negative We answer this the (1998), alleging that man himself to be affirm. may bring the father of a child an action purpose declaring “for the of the existence ISSUES relationship” of the father and child based question properly I. Is certified this on a presumed any father status under of decided at this time? 257.55, § the in clauses Minn.Stat. subd. (1998). (f) Under clause of that subdivi paternity II. Must a action be dis- sion, paternity a man’s if lack standing peti- missed for of when the probability pa of statistical of [e]vidence tioning putative father requisite shows the ternity genetic testing based on blood or genetic sexual contact but has not had establishes the likelihood that he is the which testing, might establish the * n * percent father of the child is 99 or posi- basis for that arises from a greater. tive tеst? 1(f) (1998).
ANALYSIS That is the basis asserts for his paternity presumption.. I. court, This in discussing competing pre properly This court should answer sumptions, has stated the question certified that asks whether a presumption of the mother’s husband does motion to properly dismiss was denied. automatically prevail genetic- not over a The certified question squarely here falls presumрtion test-based Kel appel within the terms of civil the rule of (Minn. Cataldo, 822, ly v. 488 N.W.2d procedure appeal may late that an be (Minn. App.1992), Sept. review denied brought “if to this court the trial court 1992). Kelly court stated: presented certifies that the im question First, the legislature has withheld a dec- doubtful, portant and from an which order laration of weightier presumption, the * * * denies motion to dismiss .” Minn. directing adjudi- instead the courts 103.03(h). R. Civ.App. P. Second, cate the issue. signif- and more that, We note also were we to decline icantly, legislature the has the directed review, urges, as the dissent the result courts, weighing when considerations of test will be revealed without policy [determining gov- and before the] opportunity appeal. for furthеr Be- erning conflicting presumptions, to ex- rejecting cause certification would insulate amine the case “on the facts.” deny decision from review and Id. court, Overby’s in day appellate their this justice A compel positive genetic interests of consider- test thus creates would, presumption ation of the question certified this time. Civ.App. (Appеllate paternity, compete See Minn. R. P. action to establish “may any presumption paternity applica courts with review other matter as justice may require.”). the interest of ble to the mother’s husband. this court As legislature not de- We are not so certain the has Kelly, legislature has held provisions is nec- left the unanswered. The stat- that one of these clared quite clearly respon- utes allow a man in or that one automatical- essarily weightier position party to a competing dent’s to be trumps the other. When ly established, the district action: are presumptions in an action to establish court child, mother, personal rep- or determine which should
must child, public resentative of the au- which by еvaluating on the facts control thority chargeable by law with the weightier is founded on the support personal rep- policy. logic considerations of parent or a of the mother resentative (1998). Kelly con- Stat. minor, if the mother died or is a has judicial obligation firmed the each ease alleged alleging man or himself *4 weigh competing marriagе genetic- to father, personal representa- the or the presumptions. based parent tive of the if alleged or father mi- alleged the father has died or is a question narrow before us The may bring nor an action: therefore, case, is whether a district court standing, dismiss for lack of before must (1) any purpose time for the petitioner genetic tеsting obtains the the declaring existence of the father and the may probabil- the “statistical establish relationship presumed child under sec- rise, first, genetic-based to a ity” gives 257.55, (d), paragraph tion subdivision and, second, * * paternity of his (h) (e), (f), *. (g), or maintain to resulting standing to the its 257.57, (emphasis § subd. 2 Minn.Stat. peti- conclusion an action to establish added). tioner’s In addition: Although pеtitioner Kelly already mother, biological pre each man positive genetic had a test —and the result- sumed be the father under section Kelly court foresaw ing —the 257.55, each to be the presented alleged in this man question squarely father, parties biological shall made case: [W]e need not determine here the diffi- ‡ n [*] [1] proceed- when a cult issue which arises (1998) § (emphasis add- by initiated a man
ing such as this is ed). testing believe will who shows reason to Thus, statutes, respondent under the presumptive parent- demonstrate his And, proper party action. once a to this present hood but who has no evidence of enjoys right provid- to a test party, he- testing. genetic party by following: ed to each Kelly, Kelly at 828. The court may, and public authority The court or question ordering also stated that the shall, require upon request party tests was “invited but not an- genetic child, mother, or father to alleged legislature when it amended swered submit to blood or tests. act to establish [in 1989] (em- 1(a) (1998) 257.62, parenthood on the basis of Minn.Stat. presumptive added).2 phasis genetic testing.” Id. alleging denying paternity alleging biological either or and set- 1. A man himself to be the alleged appear would to be a "man ting father establish the reasonable forth facts that biological was, not, abe father.” possibility that or was there par- requisite contact between the sexual provision
2. The continues: ties. alleged requesting A or mother file with the an affidavit tests shall court summary, “alleging paternity a man himself to establish instead in the man al- In party leged is a un- (respondent) be the father” to be the father. Id. at 638- (dismissal 257.57, And, if “request [genet- der section subdivision of child’s (re- remanded”). paternity testing] the man his own ic is reversed and alleging Thus, spondent) “alleged granted is an father” —a reason- the R.B. court reading “party” genetic testing party able is also a under obtain to the one who —he Finally, party, if he make legal genetic-test section 257.60. he is could use of re- Here, testing very is entitled to an order for under sults—the child. 1(a). legal position section subdivision much the same is, legal still entitled to make C.S., R.B. v. dissent views genetic-test use of results. This R.B. rul- disposi- (Minn.App.1995), N.W.2d 634 as ing only judicial guide is the available as appeal. tive of the issue in this Unlike the today: we address the before us dissent, do not R.B. as controlling. we read party whether a asserting paternity has R.B., In father was denied a compulsory to seek an order for a test, adjudica- but in that case an earlier genetic test.4 presumptions tion of overrode all ' rule, statutory We based on inter marriage based on —whether R.B., pretation 636; and on that a or Id. at testing. see (1994) action should not be dismissed before the (presumption Stat. *5 putative opportunity father has had an to paternity of under this section “is rebutted obtain genetic testing. establishing paternity a court decree of child”). Thus, a ruling right the on the of primarily We view the issue as one of putative generally genetic fathers to obtain discovery procedure, and rather than a necessary was not to testing the decision question of right. Garrity substantive See in ruling ques- R.B.—nor would a on the Sales, 202, v. Kemper Motor 280 Minn. R.B., appropriate. tion have been See 536 (1968) 207, 103, 159 N.W.2d (discovery 107 (“Putative N.W.2d at 635 father has no objective party is to allow each opportunity standing to assеrt where another to obtain all facts relative claim or to its father.”) adjudicated man has been defense). underlying substantive added).3 (emphasis right respondent asserts was established Kelly; only in he needs to discover the fact however, helpful R.B. guide, is as a for prove with which up predicate he can (after in ruling ruling its second that the his claimed putative father had no to was in what test) a legally pointless case the court Our ruling will not allow unreasonable held that fishing expeditions child could obtain a com- or casual assertions pelled genetic test. This was because that a birth was a result of an extramarital all, relationship. child was still entitled to challenge presumption First of adjudicated father and to of a relationship father-child between a man, test, argues adjudica- genetic 3. The dissent that the standing earlier in absence of lacks tion was decisive in R.B. was than a less to assert when marital But, uncontested, adjudication. though real exists), S.R.H., paternity already of with In re adjudication adjudication, awas true one 199, (hold (Colo.Ct.App.1998) P.2d 981 202 by stipulation typе gen- adjudication of we —a ing putative standing pa father has to assert erally welcome. ternity having genetic without first obtained testing, even when marital of states, 4. Two other which like Minnesota have exists), (Colo. paternity already granted cert. genetic presumption parent added a to their 2, 1999). Aug. point Because these cases acts, agе conflicting have come to conclusions likely different and were directions decided on whether father has slightly statutory provi based on different compel already pre a test when there is sions, K.D., they provide significant guid do not Compare sumed father. B.H. v. 506 368, (N.D.1993) (holding N.W.2d 374-75 ance for our decision. policy all the considerations during balancing of child born to his wifе man and a mention) (too and the courts numerous challenged only marriage can be their luxury looking of will have the two men years brought within two if the action father.”). want to be the who bringing the action has person after the fa- similarly to believe that the and other men Denying reason Witso procedure ge- not the father of the but situated a lawful to obtain ther is disruрtive years testing self-help than three after netic also risks no event later hair, cells, skin or other to obtain locks child’s birth. specimens. See Erickson v. Curtis 1(b) (1998). (Minn.1989) Co., 165, Inv. 447 N.W.2d addition, discovery pro- In issues of self-help public poli- (policy of contravenes to the sound discre- cedure are committed 145, cy); Berg Wiley, N.W.2d And, to obtain test- tion of district courts. (“[i]n (Minn.1978) society, our modern with must a sworn give ing, prompt and availability sufficient facts setting affidavit forth sufficient described, there no legal remedies as believing basis for provide a factual self-help”); place and no need for see also may be relevant. Minn. genetic-test result 692, Glorvigen, Glorvigen v. 1(a) (“alleged father” Stat. J., (Minn.App.1989) (Crippen, 700-01 con- testing must file affidavit requests who (“because unjust deci- curring specially) setting forth facts alleging paternity always through are attacked for- sions not probability of “the establishing reasonable occurrence process, enlarge mal we par- contact between the requisite sexual self-help destroy acceptance efforts to ties”). decrees”). judicial provisiоn, requiring an affidavit be- This again we the limited Finally, note alleged an father becomes entitled to fore consequence allowing from test, was added 1997. 1997 testing requests. he If have the 6, § ch. art. 21. The Laws *6 biolog shows to be the test father” legislature “presumed did not use father, conflicting pre will be ical there describe who is entitled to a to paternity. pre Then the sumptions of test, language “alleged used the but rather weightier founded on the sumption that “is therefore, legislature, The creat- father.” policy logic and controls.” considerations of a man to right ed a obtain 257.55, § subd. Those consid Minn.Stat. presumed father. testing though not court to look require erations the district discovery procedural and mechanism This relationships, marriage, and the at blood father the to obtain gives of the child to determine best interests necessary ge- the information to establish fathers should be presumed which of the and, thus, pa- to have his netic Thomas, 584 adjudicated legal father. merits. ternity action decided on its at 424. N.W.2d act for the parentage
The allows give respondent the test Our dеcision presumptions of possibility conflicting any way imply that requests he does not Thomas, 584 N.W.2d paternity. State father of respondent, biological if he is the 421, (Minn.App.1998), child, review denied prevail over James Over- should (Minn. 1998). 17, deny putative To presumption. express Nov. We no by’s marital genetic testing fathers would mean the district court should opinion on how supprеss presumptions, truth and frus if it mother could that conflict of resolve § in fact policy trate the of Minn.Stat. arises. 1(f). (“When you have See id. at DECISION wanting to involved actively
two men be in the answer the certified a minor the best interests We the life of concluding that dismissal before negative, a careful by child will be served 103.04; testing prop- Civ.App. justice would not have been P. thе interests of require decision to do not such a result. er. The district court’s order not to genetic testing and dismiss the ac- majority provisions cites various proper. tion was act to that leg- contend ques- islature has not “left the [certified] Affirmed. parties pa- tion unanswered” because ternity action are entitled to blood tests HARTEN, Judge (dissenting) parties paterni- and fathers are procedural I on both dissent and sub- ty majority’s actions. But the construction Procedurally, grounds. stantive the ma- depends transposing language on included jority misinterprets Minn. R. P. Civ.App. provision provision. one to another 103.03(h) misapplies Civ.App. Minn. R. 2, Minn.Stat. provides in accepting ques- P. 103.04 the certified that when under tion; substantively, majority miscon- criteria, some of the statutory “a man al 257.57, .60, §§ strues Minn.Stat. and .62 leged alleging or to be the father” himself ignores precedent controlling in an- may bring an action to establish swering question. added.) (Emphasis 103.03(h) Civ.App. Minn. R. P. provides emphasized does not include the language; that: provides parties it to a ac If the trial court ques- certifies that the tion shall include “each man аlleged to be presented tion is important and doubtful the biological legislature father.” Had the appeal may [an be taken] from an order so, repeated wanted to do it could have which denies a motion to dismiss for “alleged alleging or himself to be” lan failure upon to state claim which relief guage majority’s interpretation granted cаn or from an order which requires. But “a court reviewing ‘cannot summary denies a motion for judgment. supply that which the legislature purposely ” There is no such order here. The majority omits inadvertently or overlooks.’ Co., contends that this an appeal “from an Brandt v. Management Hallwood dismiss,” 396, order which denies a motion to (Minn.App.1997) (quota omitted), (Minn. but motion dismiss here wаs tion review denied June 1997). Moreover, not, brought for lack of standing, “[w]here as the a statute requires, persons rule “for failure to enumerates the or things state claim to be upon which granted.” provisions, relief can be affected its there im is an *7 majority’s plied interpretation impermissibly exclusion of others.” Id. (quotation omitted). broadens the rule. majority’s The “reasonable reading” thus violates canon of construc Civ.App. Minn. R. P. provides for tion. appellate “any review of other matter as justice may the interests of In require.” Finally, this court already has resolved justice,” C.S., “the interests of the majority question. ac- the certified R.B. v. cepts give the certified in order to (Minn.App.1995), holds “[appellants] Minnesota, thеir day appellate putative “[i]n father in giving appellants court.” But day presumed their must be a father order to court, majority compels bring them to risk action parent- under the R.B., destruction of a belief integral age to their act.” In the child was born out i.e., structure, wedlock; family of of the mother had never married notes, Overby. majority father, James As the presumed putative either the or the adjudicate district court will still be free to and the was based on father, legal him the adjudica- signed stipulation but even an paternity approved by powerless tion will be adjudication. restore that be- the court and entered an as lief. majority misapplies R. Id. attempts distinguish majority there, paterni- on the ground
R.B. adjudi- been
ty presumed father had of the here, there no reason
cated. But was adjudication Overby’s paterni-
an James mother are and have
ty: he and the child’s before the child’s con-
been married since marriage is the basis for
ception, and of his See 1(a) (1998) mother establishes
(marriage to child’s paternity).
presumption father
Allowing a father, presumed married as
oppose a
here, denying but stand- adjudicated
ing oppose an
father, R.B., per as introduces an unwar-
ranted and artificial distinction into the
parentage law. That distinction means
that, parents until a child of married
three, provides any man who an affidavit with the
stating he had sexual relations conception the time will
mother around proof that the legally entitled to his, regardless
child is or is not po-
mother’s or the child’s interests. The incal- ensuing
tential for familial discord is
culable. HANSEN, as trustee
Susanne
for the next-of-kin of Adam Helmbrecht, Respondent,
R. TREATMENT
ST. PAUL METRO
CENTER, INC., al., et
Appellants.
No. C1-99-1350. Appeals
Court of of Minnesota.
April