¶1 Plaintiff/Appellant Coleman Bates, III (Bates or Plaintiff), seeks review
of the trial court's order dismissing his action to determine paternity of a
child born to Defendant/Appellee Angela Copeland (Mother or Defendant). In this
proceeding, Bates asserts the trial court erred as a matter of law and fact in
holding he had not demonstrated an excuse for the untimely filing of his
petition to determine paternity.
¶2 Mother and Petitioner/Appellee Matthew Wayne Copeland, II (Copeland or
Petitioner) married on October 29, 2003. During the marriage, one child was born
in November 2003.
¶3 Mother and Copeland separated in July 2008. After the separation, Mother
and Copeland continued to have sexual relations. After the separation, Mother
and Bates also had a sexual relationship. Mother gave birth to a child on
September 24, 2009. The birth certificate of the child listed "Bates" as the
child's last name.
¶4 On September 25, 2009, Bates executed a form Acknowledgment of Paternity
(AOP) of the child. The AOP, signed by both Bates and Mother, asked, "Was mother
married at time of conception or birth?" Bates and Mother answered, "no,"
although Mother was still legally married to Copeland, albeit separated.
¶5 On August 23, 2013, after receipt of notice of a pending child support
action by Appellee State of Oklahoma, ex rel. Department of Human Services,
Child Support Services (State), Copeland commenced an action for dissolution of
his marriage to Mother. Citing the pending child support action and the birth
certificate's stated last name of the child, Copeland alleged paternity of the
child was uncertain, and genetic testing should be conducted. The trial court
subsequently entered a temporary order, by which Copeland and Mother agreed to
shared joint custody of the child pendente lite.
¶6 On October 4, 2013, Bates commenced an action to determine paternity of
the child, now four years old. On October 11, 2013, Copeland filed a Notice of
Another Action Pending, i.e., the action for dissolution of the marriage, and
Motion to Stay proceedings in the paternity action. On October 14, 2013, State
filed an objection to the petition to determine paternity, and sought either
dismissal of the paternity action or a stay pending further proceedings in the
dissolution action. On November 12, 2013, Copeland filed a Motion to Vacate the
AOP and Motion to Dismiss the paternity action, and alleged a continuing sexual
relationship with Mother after their separation.
¶7 On December 2, 2013, the parties appeared for a hearing on the Motion to
Vacate and Motion to Dismiss the paternity action. None of the parties presented
further evidence or testimony, rather relying solely on the facts established by
the pleadings and the arguments of their respective attorneys, and the trial
court took the matter under advisement.
¶8 By order filed December 30, 2013, the trial court issued its ruling. The
trial court held:
The basis of [Copeland's] and [State's] request to vacate the
Acknowledgment of Paternity is that [Copeland's] presumption of paternity
has not been properly rebutted under the Uniform Parentage Act (UPA). Under
Title 10 O.S. Section 7700-204 (A)(1), a man is presumed to be the father of
a child if he and the mother are married to each other and the child is bom
during the marriage. The marital presumption imposed under UPA may only be
rebutted by (1) a timely filing of a Husband's Denial of Paternity
accompanied by a properly executed Acknowledgment of Paternity; or in the
alternative, (2) initiating a proceeding to adjudicate the child's paternity
under Article 6 of the Uniform Parentage Act. Title 10 O.S. Section
7700-303, Section 7700-204 (B).
However, such a proceeding to adjudicate parentage of a child having a
presumed father must be brought no later than two (2) years after the
child's birth, unless the Court determines that (1) the presumed father and
mother did not cohabitate or engage in sexual intercourse during the
probable time of conception AND the presumed father never held the child out
as his own; OR (2) by agreement of the biological father, the presumed
father, and the mother to adjudicate the biological father's parentage.
Title 10 O.S. Section 7700-607(B), Section 7700-607(C).
The Court finds that [the child] was born during the marriage of Copeland
and Mother Copeland. The Court finds that because the child was born during
this marriage, [Copeland] is the presumed father. [Copeland] failed to
execute the required Denial of Paternity. While [Mother] and [Bates]
attempted to execute an Acknowledgment of Paternity, the execution of the
AOP alone is not enough to rebut [Copeland's] presumption of paternity. The
Court finds that both an Acknowledgment of Paternity signed by the
biological father as well as a Denial of Paternity signed by the presumed
father must be properly executed and that neither is valid until both are
signed. See Title 10 O.S.
7700-304. Accordingly, the Court finds that [Mother's] and [Bates's]
executed Acknowledgment of Paternity is not valid. [Bates], therefore,
cannot be an acknowledged father and must seek to be adjudicated the child's
father.
The Court finds that [Bates] filed his action to be judicially declared
[the child's] father on October 4, 2013. This, however, is well past the two
(2) year limitation, the child having been born September 24, 2009. As such,
[Bates] can only overcome the marital presumption if he can produce
sufficient evidence that [Copeland] and [Mother] did not cohabitate or
engage in sexual intercourse during the probable time of conception. The
Court finds that although [Copeland] and [Mother] were separated at the time
of conception, the only information presented to the Court concerning the
Copelands' continued sexual relationship is from [Copeland's] verified
Petition for Dissolution of Marriage. Per that Petition, [Copeland] and
[Mother] continued to engage in a sexual relationship during the time of
separation. [Bates] has failed to produce any evidence that [Copeland] and
[Mother] did not engage in sex during the probable time of conception.
.
. .
[Copeland] is the presumed father, having been married to the [Mother] at
the time of [the child's] birth. [Copeland] did not sign a Denial of
Paternity and that such was required as well as [Mother's] and [Bates's]
Acknowledgment of Paternity before either can be valid. The Court finds,
therefore, that [Bates's] Acknowledgment of Paternity is not a valid
document adjudicating [Bates] as Father. The Court further finds that
[Bates] has failed to bring an action to adjudicate the child's parentage
within the two (2) years as required by law and that further [Bates] has
failed to establish an exception to the time
limitation.
The trial court accordingly granted Copeland's Motion to Vacate the AOP and
his Motion to Dismiss Bates's petition to determine paternity. Bates
appeals.
¶9 In this appeal, Bates asserts the trial court erred as a matter of law in
holding the AOP executed by him and Mother was invalid because Copeland did not
also execute a denial of paternity. Particularly, Bates argues that, contrary to
the trial court's conclusion, 10
O.S. §7700-304 does not mandate the execution of both an
acknowledgment of paternity and a denial of paternity, and that Oklahoma
law requires the execution of both an acknowledgment of paternity
and a denial of paternity only: (1) under 10 O.S. §7700-302(A), when the AOP
states on its face that there is a presumed father; (2) under 10 O.S. §7700-305(B), when the
presumed father seeks to discharge himself from the rights and duties of a
parent; and (3) under 10 O.S.
§7700-303(1), which conditions the validity of a denial of paternity on the
execution of an AOP, but which does not condition the validity of an AOP on the
execution of a denial of paternity. In this proposition, Bates argues that the
AOP he and Mother executed, where they falsely stated Mother was not married at
the time of conception, is, at best, voidable under 10 O.S. §7700-302(C), not void
under 10 O.S. §7700-302(B).
See, e.g., Kincaid v. Black Angus Motel, Inc., 1999 OK 54, ¶7, 983 P.2d 1016, 1018-10191; Great Am.
Reserve Ins. Co. of Dallas v. Strain, 1962 OK 241, ¶5, 377 P.2d 583, 586-587.2
¶10 The facts of this case are not seriously disputed. The issues presented
in the present case turn on the application of the statutory provisions
governing the presumption of paternity, an acknowledgment of paternity, and the
time for commencement of an action to determine paternity to the undisputed
facts of this case. The construction and application of these statutes to the
undisputed facts present questions of law, which we review de novo. In
re: Assessment of Personal Property Taxes, 2008 OK 94, ¶17, 234 P.3d 938, 946; Multiple
Injury Trust Fund v. Harper, 2008 OK CIV APP 82, ¶10, 194 P.3d 790, 794; Oklahoma
Petroleum Workers' Compensation Association v. Mid-Continent Casualty Co.,
1994 OK CIV APP 107, ¶5, 887 P.2d 335, 337.
¶11 Under §7700-204 of title 10, O.S.:
A. A man is presumed to be the father of a child if:
1. He and the mother of the child are married to each other and the child
is born during the marriage;
2. He and the mother of the child were married to each other and the
child is born within three hundred (300) days after the marriage is
terminated by death, annulment, declaration of invalidity, dissolution of
marriage or after decree of separation;
3. Before the birth of the child, he and the mother of the child married
each other in apparent compliance with law, even if the attempted marriage
is or could be declared invalid, and the child is born during the invalid
marriage or within three hundred (300) days after its termination by death,
annulment, declaration of invalidity, a decree of separation, or dissolution
of marriage;
4. After the birth of the child, he and the mother of the child married
each other in apparent compliance with law, whether or not the marriage is
or could be declared invalid, and he voluntarily asserted his paternity of
the child, and:
a. the assertion is in a record with the State Department of Health,
Division of Vital Records or the Department of Human Services,
b. he agreed to be and is named as the child's father on the child's
birth certificate, or
c. he promised in a record to support the child as his own;
or
5. For the first two (2) years of the child's life, he resided in the
same household with the child and openly held out the child as his own.
B. A presumption of paternity established under this section may be
rebutted only by an adjudication under [10 O.S. §§7700-601 et
seq.]
An action to adjudicate the paternity of a child having a presumed father is
controlled by §7700-607 of title 10, O.S., which provides:
A. Except as otherwise provided in subsection B of this section, a
proceeding brought by a presumed father, the mother, or another individual
to adjudicate the parentage of a child having a presumed father shall be
commenced not later than two (2) years after the birth of the child.
B. A proceeding seeking to disprove the father-child relationship between
a child and the child's presumed father may be maintained at any time in
accordance with Section 7700-608 of this title if the court, prior to an
order disproving the father-child relationship, determines that:
1. The presumed father and the mother of the child neither cohabited
nor engaged in sexual intercourse with each other during the probable
time of conception; and
2. The presumed father never openly held out the child as his
own.
C. A proceeding seeking to disprove the father-child relationship between
a child and the child's presumed or acknowledged father may be maintained at
any time if the court determines that the biological father, presumed or
acknowledged father, and the mother agree to adjudicate the biological
father's parentage in accordance with Sections 7700-608 and 7700-636 of this
title. . . . In a proceeding under this section, the court shall enter an
order either confirming the existing father-child relationship or
adjudicating the biological father as the parent of the child. A final order
under this section shall not leave the child without an acknowledged or
adjudicated father.
So, under §7700-607(A), a proceeding to adjudicate the paternity of a child
having a presumed father must be commenced within two years of the birth of the
child, unless the court expressly determines either (1) pursuant to
§7700-607(B), the facts surrounding the conception of the child, coupled with
the failure of the presumed father to acknowledge paternity, do not support the
presumption of paternity, or (2) pursuant to §7700-607(C), the interested
parties have agreed to a determination of paternity by genetic testing pursuant
to §7700-608 and §7700-636.3
¶12 There are several sections touching on acknowledgments and denials of
paternity. Section 7700-302 of title 10, O.S., governs the requirements of an
acknowledgment of paternity, and provides:
A. An acknowledgment of paternity shall:
1. Be in a record and on the form prescribed by the Department of
Human Services . . . ;
2. Be signed, or otherwise authenticated, under penalty of perjury by
the mother and by the man seeking to establish his paternity;
3. State that the child whose paternity is being acknowledged:
a. does not have a presumed father, or has a presumed father whose
full name is stated, and
b. does not have another acknowledged or adjudicated father;
4. State whether there has been genetic testing and, if so, that the
acknowledging man's claim of paternity is consistent with the results of
the testing; and
5. State that the signatories understand that the acknowledgment is
the equivalent of a judicial adjudication of paternity of the child and
that a challenge to the acknowledgment is permitted only under limited
circumstances and is barred after two (2)
years.
¶13 B. An acknowledgment of paternity shall be void if it:
1. States that another man is a presumed father, unless a denial of
paternity signed or otherwise authenticated by the presumed father is filed
with the State Department of Health, Division of Vital Records; or
2. States that another man is an acknowledged or adjudicated
father.
C. An acknowledgment of paternity is voidable if it falsely denies the
existence of a presumed, acknowledged, or adjudicated father of the child.
Section 7700-303 of title 10, O.S., governs the execution and effect of a
denial of paternity, and provides that a denial of paternity is valid only
if:
1. An acknowledgment of paternity signed, or otherwise authenticated, by
another man is filed pursuant to [10 O.S. §7700-312];
2. The denial is in a record, and is signed, or otherwise authenticated,
under penalty of perjury;
3. The presumed father has not previously:
a. acknowledged his paternity, unless the previous acknowledgment has
been rescinded pursuant to [10 O.S. §7700-307] or
successfully challenged pursuant to [10 O.S. §7700-308], or
b. been adjudicated to be the father of the child;
and
4. The denial is signed not later than two (2) years after the birth of
the child.
Section 7700-304 of title 10, O.S., governs the execution of acknowledgments
and denials of paternity, and provides in pertinent part:
A. An acknowledgment of paternity and a denial of paternity may be
executed separately or simultaneously. If the acknowledgment and denial are
both necessary, neither is valid until both are executed.
B. An acknowledgment of paternity or a denial of paternity may be signed
before the birth of the child.
C. Subject to subsection A of this section, an acknowledgment of
paternity or denial of paternity takes effect on the birth of the child or
the execution of the document, whichever occurs
later.
Section 7700-305 of title 10, O.S., governs the effect of acknowledgments and
denials of paternity, and provides:
A. Except as otherwise provided in [10 O.S. §§7700-307 and 7700-308], a
valid acknowledgment of paternity signed by both parents is equivalent to an
adjudication of paternity of a child and confers upon the acknowledged
father all of the rights and duties of a parent.
B. Except as otherwise provided in [10 O.S. §§7700-307 and
7700-308], a valid denial of paternity by a presumed father when executed in
conjunction with a valid acknowledgment of paternity is equivalent to an
adjudication of the nonpaternity of the presumed father and discharges the
presumed father from all rights and duties of a parent.4
¶14 Copeland and Mother separated in July 2008. According to Copeland's
verified petition for dissolution of his marriage to Mother, he continued to
have a sexual relationship with Mother after their separation. Bates introduced
no evidence to controvert Copeland's sworn petition establishing he continued to
have a sexual relationship with Mother after their separation. The child was
born in September 2009, after the separation of Copeland and Mother, but while
Copeland and Mother remained married.
¶15 On these undisputed facts, Copeland is the presumed father of the child
born to Mother in September 2009 under 10 O.S. §7700-204(A)(1). Copeland's
presumption of paternity cannot be displaced absent either (1) an adjudication
of his non-paternity by a court of competent jurisdiction (a) in an action for
divorce as permitted by 43 O.S.
§109.2,5
or (b) as mandated by §7700-204(B), in a timely commenced action under 10 O.S. §7700-607, or (2) a timely,
validly executed and filed denial of paternity as prescribed by 10 O.S. §7700-303 and
§7700-305(B).
¶16 In this respect, the law does not ascribe controlling effect to the AOP
executed by Bates and Mother. To hold that Copeland's presumption of paternity
may be overcome based only on the AOP executed by Bates and Mother, absent an
adjudication of Copeland's non-paternity or Copeland's timely executed and filed
denial of paternity, renders the statutory presumption of paternity wholly
without force and effect, and would permit the divestiture of the presumed
father-child relationship without affording the presumed father notice and an
opportunity to be heard in a proceeding affecting the most substantial and
important rights of a parent.
¶17 Copeland apparently chose not to question his presumed paternity of the
child born to Mother in September 2009 until notified of the State's child
support enforcement action in August 2013. He then commenced for dissolution of
the marriage.
¶18 We hold that Copeland was the presumed father of the child born to Mother
during their marriage, and absent an adjudication of Copeland's non-paternity or
Copeland's timely executed and filed denial of paternity, the AOP executed by
Bates and Mother, falsely stating Mother was not married at the time of
conception or birth of the child, was voidable under 10 O.S. §7700-302(C). The trial
court did not err as a matter of law or fact in vacating the AOP executed by
Bates and Mother.
¶19 Further, Bates proved no excuse for commencement of the action to
determine paternity more than two years after the birth of the child as provided
in §7700-607(B). The trial court did not err as a matter of law or fact in
dismissing the action to determine paternity commenced by Bates more than two
years after the child's birth.
¶20 The order of the trial court is AFFIRMED.
MITCHELL, P.J., and HETHERINGTON, C.J., concur.