Friend v. Tesoro

Court of Civil Appeals of Oklahoma

Friend v. Tesoro

2007 OK CIV APP 78, 167 P.3d 978, 2007 Okla. Civ. App. LEXIS 51, 2007 WL 2421474

CourtCourt of Civil Appeals of Oklahoma

DecidedJune 15, 2007

DocketNo. 104,281

StatusPublished

Cited by1 cases

This text of 2007 OK CIV APP 78 (Friend v. Tesoro) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Friend v. Tesoro, 2007 OK CIV APP 78, 167 P.3d 978, 2007 Okla. Civ. App. LEXIS 51, 2007 WL 2421474 (Okla. Ct. App. 2007).

Pincite

Opinion

CAROL M. HANSEN, Presiding Judge.

T1 The trial court dismissed Plaintiffs, James Friend, petition to determine paternity, filed July 9, 2002, of N.F.T. born August 18, 1999.¹ Mr. Friend appeals without appellate briefs in conformance with the procedures for the appellate accelerated docket, Okla. Sup.Ct. R. 1.36, 12 0.98.2001, Ch 15, App.1.

T2 The parties were never married. Mandy Tesoro, now Robertson is the mother of N.F.T. She moved to dismiss the action alleging a DNA test showed conclusively James was not N.F.T.'s father. Neither does Nickole's birth certificate list the name of the father. She alleged she was already pregnant with N.F.T. at the commencement of her conjugal relationship with Plaintiff, No briefs were submitted by either party at trial, and no transcript was designated or included in the record.

T3 NFT 's guardian ad litem filed a detailed report concerning N.F.T., her mother and James Friend. He stated James Friend held himself out as the father of N.F.T. for over a two year period after her birth, and she resided with him over the same two year period. She feels N.F.T. knows James as her father. She knows her real father (not named in the action) only as a cousin.

T4 Although the record does not reflect there was a discussion of the Uniform Parentage Act, 10 0.8.2006 Supp. § 7700-101 ef seq, at trial, the Act itself in § 7700-902 specifically states: "A proceeding to adjudicate parentage or an acknowledgment of paternity which was commenced or executed before November 1, 2006,² is governed by the Uniform Parentage Act." The Act provides:

[[Image here]]

§ 7700-204 A. A man is presumed to be the father of a child if:

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 Article 6 of the Uniform Parentage Act.

10 0.8.2006 Supp. § 7700-607 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 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.

15 In our view, these provisions were enacted to cover the exact situation we have here. The action was not commenced within the two year restriction. According to the petition, Friend was a presumed father under § 7700-204(A)(5). Challenges against a [980]*980presumed father must be brought within two years of the child's birth. § 7700-607(A). This paternity action was commenced July 9, 2002, more than two years after N.F.T.'s birth (August 18, 1999). Therefore, if Friend's allegations are true, it appears he is the presumed father of N.F.T., which presumption cannot be rebutted.

1T 6 It also appears that the trial court relied exclusively on the DNA test, ie. biological fatherhood, and did not apply the Uniform Parentage Act. This was error and the January 5, 2007 Order of Dismissal must be reversed.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS - CONSISTENT WITH THIS OPINION.

BUETTNER, J., and BELL, J., concur.

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CAROL M. HANSEN, Presiding Judge.

T1 The trial court dismissed Plaintiffs, James Friend, petition to determine paternity, filed July 9, 2002, of N.F.T. born August 18, 1999.¹ Mr. Friend appeals without appellate briefs in conformance with the procedures for the appellate accelerated docket, Okla. Sup.Ct. R. 1.36, 12 0.98.2001, Ch 15, App.1.

T2 The parties were never married. Mandy Tesoro, now Robertson is the mother of N.F.T. She moved to dismiss the action alleging a DNA test showed conclusively James was not N.F.T.'s father. Neither does Nickole's birth certificate list the name of the father. She alleged she was already pregnant with N.F.T. at the commencement of her conjugal relationship with Plaintiff, No briefs were submitted by either party at trial, and no transcript was designated or included in the record.

T3 NFT 's guardian ad litem filed a detailed report concerning N.F.T., her mother and James Friend. He stated James Friend held himself out as the father of N.F.T. for over a two year period after her birth, and she resided with him over the same two year period. She feels N.F.T. knows James as her father. She knows her real father (not named in the action) only as a cousin.

T4 Although the record does not reflect there was a discussion of the Uniform Parentage Act, 10 0.8.2006 Supp. § 7700-101 ef seq, at trial, the Act itself in § 7700-902 specifically states: "A proceeding to adjudicate parentage or an acknowledgment of paternity which was commenced or executed before November 1, 2006,² is governed by the Uniform Parentage Act." The Act provides:

[[Image here]]

§ 7700-204 A. A man is presumed to be the father of a child if:

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 Article 6 of the Uniform Parentage Act.

10 0.8.2006 Supp. § 7700-607 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 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.

15 In our view, these provisions were enacted to cover the exact situation we have here. The action was not commenced within the two year restriction. According to the petition, Friend was a presumed father under § 7700-204(A)(5). Challenges against a [980]*980presumed father must be brought within two years of the child's birth. § 7700-607(A). This paternity action was commenced July 9, 2002, more than two years after N.F.T.'s birth (August 18, 1999). Therefore, if Friend's allegations are true, it appears he is the presumed father of N.F.T., which presumption cannot be rebutted.

1T 6 It also appears that the trial court relied exclusively on the DNA test, ie. biological fatherhood, and did not apply the Uniform Parentage Act. This was error and the January 5, 2007 Order of Dismissal must be reversed.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS - CONSISTENT WITH THIS OPINION.

BUETTNER, J., and BELL, J., concur.

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Bluebook (online)

2007 OK CIV APP 78, 167 P.3d 978, 2007 Okla. Civ. App. LEXIS 51, 2007 WL 2421474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friend-v-tesoro-oklacivapp-2007.

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