In Re the Marriage of Bethards

526 N.W.2d 871, 1994 Iowa App. LEXIS 144, 1994 WL 750709
CourtCourt of Appeals of Iowa
DecidedNovember 28, 1994
Docket93-0900
StatusPublished
Cited by5 cases

This text of 526 N.W.2d 871 (In Re the Marriage of Bethards) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Bethards, 526 N.W.2d 871, 1994 Iowa App. LEXIS 144, 1994 WL 750709 (iowactapp 1994).

Opinions

SACKETT, Judge.

Respondent-appellant Dennis Keith Be-thards seeks to modify his dissolution decree to strike the provision he pay child support for a child born to petitioner-appellee Connie S. Bethards during the parties’ marriage. Testing done after the modification petition was filed shows the child is not Dennis’s. The question in this appeal is whether the trial court was correct in denying the petition for modification. We reverse and modify the decree to strike the provision Dennis pay support for the child.

Connie’s and Dennis’s marriage was dissolved in June 1986. The dissolution decree contained custody, visitation, and support provisions for three children. Only the paternity of the youngest child, Micah, is subject to question. Connie received custody of Micah. Dennis was ordered to pay support for him. Dennis has paid the support. Dennis was also granted visitation with Micah which he has exercised. No tests were conducted prior to the dissolution to determine paternity, and paternity was not litigated as an issue before the court at the time the dissolution decree was entered.

In August 1991,1 Dennis filed this petition to modify. Blood testing done in late 1992 and early 1993 and evaluated by Genetic Design concluded:

The alleged father, DENNIS K. BE-THARDS, lacks the following genetic mai’ker(s) present in the child, MICAH BETHARDS, and absent in the mother, PGM1 2-, Therefore, the alleged father cannot be the biological father of the child. The alleged father is also excluded by DNA probe technology.

The trial court denied Dennis’s application finding:

[t]he circumstances of the parties have not changed substantially with regard to their awareness of the dispute over the paternity of Micah. The evidence supports the finding that both parties knew that Dennis was not the likely biological father of Micah. Despite that knowledge, Dennis has treated him as his son for all practical purposes since birth, continued to do so through the dissolution proceedings, and exercised his rights and dutifully discharged his responsibilities with respect to Micah for the years following entry of the [873]*873decree. The court concludes, therefore, that respondent has failed to meet his burden to show that a substantial change in circumstances has occurred since the entry of the original decree.

Dennis contends he has met his burden to show a substantial change of circumstances since the original decree was entered. See In re Marriage of Chmelicek, 480 N.W.2d 571, 574 (Iowa App.1991).

Medical science has advanced and there now are more testing procedures to confirm or deny paternity. Currently, available blood tests allow exclusion of the father to be made with ninety-nine percent accuracy. See State ex rel. Wegman v. Schulz, 417 N.W.2d 228, 231 (Iowa App.1987). The advent of this testing has only come about during the past two decades and public awareness of its availability is of very recent origin. Presumptions that children born during a marriage were legitimate have historically been extremely strong, see Kuhns v. Olson, 258 Iowa 1274, 1276, 141 N.W.2d 925, 926 (1966), but have been weakened in the advent of testing. See In re Marriage of Schneckloth, 320 N.W.2d 535, 536 (Iowa 1982). There is strong support for medical evidence to play a cardinal role in paternity disputes. See Schulz, 417 N.W.2d at 231. The availability of the testing has opened new challenges to paternity issues. Despite the scientific strength of the tests, Iowa has not adopted a statute that provides that blood and genetic tests are conclusive evidence of nonpaternity. The Iowa court has declined to hold blood tests are conclusive evidence of nonpaternity as a matter of law. Petition of Bruce, 522 N.W.2d 67, 70 (Iowa 1994); In re Estate of Hawk v. Lain, 329 N.W.2d 660, 662 (Iowa 1983); Schneckloth, 320 N.W.2d at 538. But courts have recognized the highly persuasive nature of blood tests on the issue of nonpa-ternity. Schneckloth, 320 N.W.2d at 538.

We review de novo. Schneckloth, 320 N.W.2d at 538. The facts are not in dispute except as to the extent of Dennis’s knowledge of the facts of Micah’s conception at the time the dissolution decree was entered.

Dennis learned, before the marriage was dissolved, Connie had an affair during the marriage near the time of Micah’s conception. Connie filed a verified dissolution petition that alleged Micah was a child of the marriage. The issue of Micah’s paternity was not litigated in the dissolution action; there was no specific finding in the dissolution decree Micah was or was not a child of the marriage. Micah’s custody was determined and Dennis received visitation with him and was ordered to pay child support for him. In addressing the issue of visitation and child support, the dissolution court referred to Micah as Dennis’s son.

The arguments of the parties can be focused on three questions:

1. Did Dennis introduce evidence showing changed circumstances?

2. Was Dennis estopped by his actions from disclaiming he was Mieah’s father?

3. Was the dissolution decree res judicata as to the issue of Dennis fathering Micah?

It is without dispute Dennis questioned Micah’s paternity from his conception. It is also without dispute Connie was aware at all times Micah was not Dennis’s son. She knew then and knows now who the natural father of Micah is. Connie’s sworn verified dissolution petition alleged Micah was a child of the marriage. Testing was available in 1986 when the dissolution was granted to determine paternity. See Schneckloth, 320 N.W.2d at 537-38. Dennis did not, however, have the benefit of testing until after the petition for modification was filed.

Dennis testified he did not definitely know he was not the father of Micah until two years before the modification petition was filed. Dennis testified, when he questioned the paternity, Connie assured him he was Micah’s father. The actions by Connie, in representing to the court in the dissolution petition Dennis was Micah’s father and in representing to child support recovery Dennis was Micah’s father, are strong evidence corroborating Dennis’s testimony Connie deceived him into believing at the time of the dissolution he was Micah’s father; and he did not know until 1988 he was not Micah’s father. We find the question of Micah’s paternity was not within the knowledge or eontem-[874]*874plation of the trial court when the dissolution decree was entered.

The provisions for support payments in a divorce decree are final as to circumstances then existing. Mears v. Mears, 213 N.W.2d 511, 515 (Iowa 1973).

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In Re the Marriage of Bethards
526 N.W.2d 871 (Court of Appeals of Iowa, 1994)

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