State, Div. of Child Support Ex Rel. Ndb

2001 WY 118, 35 P.3d 1224
CourtWyoming Supreme Court
DecidedDecember 7, 2001
DocketC-00-13
StatusPublished
Cited by9 cases

This text of 2001 WY 118 (State, Div. of Child Support Ex Rel. Ndb) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State, Div. of Child Support Ex Rel. Ndb, 2001 WY 118, 35 P.3d 1224 (Wyo. 2001).

Opinion

35 P.3d 1224 (2001)
2001 WY 118

STATE of Wyoming, DIVISION OF CHILD SUPPORT ENFORCEMENT, State of Wyoming ex rel., NDB, Minor Child.
RWR, Appellant (Respondent),
v.
EKB and JDB, Appellees (Respondents).

No. C-00-13.

Supreme Court of Wyoming.

December 7, 2001.

*1225 Patrick F. Crow of Law Office of Patrick F. Crow, Newcastle, WY. Argument by Mr. Crow, Representing Appellant.

Gay Woodhouse, Attorney General; Michael L. Hubbard, Deputy Attorney General; Dan S. Wilde, Senior Assistant Attorney General; and Peggy A. Trent, Assistant Attorney General. Argument by Mr. Wilde, Representing Appellee State of Wyoming, Division of Child Support Enforcement.

No appearance, Representing Appellee EKB.

Daniel B. Bailey of Lubnau, Bailey & Dumbrill, PC, Gillette, WY, Argument by Mr. Bailey, Representing Appellee JDB.

Kathryn J. Edelman, Gillette, WY, Guardian Ad Litem.

Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.

HILL, Justice.

[¶ 1] The district court determined that RWR (hereafter "Father") was the biologic[1] father of NDB (hereafter "Child"). Father challenges that decision on a variety of grounds. The other parties to this appeal are the State of Wyoming, Division of Child Support Enforcement (State), Child's Mother, EKB (hereafter "Mother"), and JDB, who was married to Child's Mother at the time of Child's birth.

[¶ 2] We will affirm.

ISSUES

[¶ 3] Father raises these issues:

1) Did the District Court err when it ruled it was not required by the Wyoming Parentage *1226 Act to recognize the parentage determinations contained in a decree of divorce?
2) Did the District Court err in a paternity proceeding in which there were two men each of whom was a presumed father as defined in Wyoming Statutes Section 14-2-102(a) (LEXIS 1999), when it ordered the parties to submit to genetic testing?
3) Did the District Court err when it used genetic testing to determine the paternity of NDB [Child] rather than resolving conflicting presumptions of paternity as defined in Wyoming Statutes Section 14-2-102(a) (LEXIS 1999), by deciding which presumption is supported by weightier considerations of policy and logic?
4) Did the District Court violate the right of Appellant [Father] to be protected from unreasonable search and seizure when it ordered the taking of tissue samples for genetic testing and the introduction of reports of genetic tests made with those samples?

The State posits this issue for our determination:

I. Did the Wyoming district court violate Appellant's [Father's] constitutional rights by ordering him to submit to genetic tests in its determination of NDB's [Child's] paternity?

JDB poses these issues:

A. Is the minor child precluded by doctrines of res judicata, collateral estoppel or judicial estoppel from seeking a judicial determination of his biological father from among two statutorily presumed fathers?
B. Where conflicting statutory presumptions exist, is the rebuttal of a single presumption dispositive?
C. Does it matter who the biological father of the child is, or that a fraud was perpetrated on the Court to hide the Mother's pregnancy?
D. Did the district court violate Appellant's [Father's] constitutional rights by ordering him to submit to genetic tests in its determination of NDB's [Child's] paternity?

FACTS

[¶ 4] Child was born on September 21, 1992, and from the date of his birth until July of 1998, all parties believed JDB was the biologic father of Child. Mother was married to Father[2] at the time Child was conceived, but she believed Father to be incapable of producing a child because he had been diagnosed by a physician as having a low sperm count and low sperm motility. For more than a year and a half Mother and Father attempted to become pregnant, but those efforts had apparently failed. During the final months of her marriage to Father, Mother engaged in an affair with JDB, and when she discovered she was pregnant in January of 1992, she assumed Child's biologic father to be JDB.[3] By decree entered on April 30, 1992, Mother was divorced from Father. The parties reached a settlement that was appended to the divorce decree. It contained this provision: "No children have been born to the parties during their marriage and no children are expected to be born as issue of this marriage." Similar language is found in the divorce decree.

[¶ 5] Mother was married to JDB on August 14, 1992. JDB and Mother lived together as man and wife for about two and one-half years but were divorced by decree entered on September 1, 1995. That decree contained this provision: "That one (1) child has been born as issue of this marriage of the parties, namely, [Child] born September 21, 1992."

[¶ 6] After JDB and Mother were divorced, JDB continued to have some visitation with Child. While Child was with JDB during the summer of 1998, JDB obtained a mail order DNA testing kit and sent in buccal swabs (saliva/tissue samples) from himself *1227 and Child for analysis. That test result eliminated JDB as the biologic father of Child.

[¶ 7] The instant litigation was initiated on December 9, 1998, when the State filed a petition to establish paternity on behalf of Child. Father questions the sincerity of the State's motivation in initiating this action. However, the record demonstrates that the State did so at Mother's request. On July 29, 1998, JDB had called Mother and told her that he was not the biologic father of Child and wanted to know who was. Mother decided to initiate this litigation because she wanted to know "the truth" and because JDB was insistent that it be done. After some preliminary proceedings, the district court ordered that genetic testing be done.[4] The district court entered that order reluctantly and stated in the order that he "could not veto the good faith decision of the guardian ad litem" to proceed with genetic testing. The genetic tests established that JDB could not be the biologic father of Child and that RWR was, indeed, his Father.

[¶ 8] The most perplexing hurdle in this very difficult case arises because Father did not want genetic testing done and, even after the test results were made available, he resisted efforts to establish the true paternity of Child. Father was unequivocal in stating that he did not desire to have a father-child relationship with Child. JDB, who had some semblance of a father-child relationship with Child, did not wish to continue that relationship unless Child initiated it. JDB contended that his relationship with Child was minimal because he had been absent from the home due to his work during much of the two and one-half years he was married to Mother. After his divorce from Mother, JDB had only limited visitation because Mother tended to interfere with his court-ordered visitation. To the extent there was visitation, it was JDB's sense that Child did not want to be with him and did not like him (thus, he did not want to force Child to continue an unsatisfactory father-child relationship).

INTRODUCTION

[¶ 9] Before we embark on a discussion designed to resolve the issues actually raised in this appeal, it is prudent that we clear some debris from the path we intend to follow in reaching our decision.

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Bluebook (online)
2001 WY 118, 35 P.3d 1224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-div-of-child-support-ex-rel-ndb-wyo-2001.