Witso v. Overby

609 N.W.2d 618, 2000 WL 557950
CourtCourt of Appeals of Minnesota
DecidedMarch 9, 2000
DocketC6-99-1618
StatusPublished
Cited by7 cases

This text of 609 N.W.2d 618 (Witso v. Overby) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Witso v. Overby, 609 N.W.2d 618, 2000 WL 557950 (Mich. Ct. App. 2000).

Opinions

OPINION

DAVIES, Judge

FACTS

Respondent Benjamin Witso brought this action in April 1999 to establish that he was the father of M.R.O., a child born to appellant Mary Overby in April 1998. Mary Overby is — and was at the time of the conception and birth — married to appellant James Overby. She concedes she had sexual relations with respondent about the time of M.R.O.’s conception.

The Overbys moved to dismiss Witso’s paternity petition, asserting that he lacks standing because he does not have the positive genetic-test evidence he needs to make him a presumed father; it is not disputed that, if he were a presumed father, he would have standing. The Over-bys have refused to sign a release to allow genetic testing. The district court denied the motion to dismiss and ruled that Witso made a showing that gave him a right to genetic testing, notwithstanding James Ov-erby’s presumed paternity as the husband of the mother.

The district court ordered genetic testing and sealed the results; it then certified as important and doubtful this question:

When the biological mother admits having had intercourse with the putative father during the period of possible conception * * * does the putative father have standing to compel the mother and child to submit to [genetic' testing to establish a basis for a paternity presumption]?

[620]*620To make the certified question reflect the actual issue, we recast it as follows:

Must a paternity action be dismissed for lack of standing when the petitioning putative father shows the requisite sexual contact but has nqt had genetic testing, which might establish the genetic basis for standing that arises from a positive genetic test?

We answer this question in the negative and affirm.

ISSUES

I. Is this certified question properly decided at this time?

II. Must a paternity action be dismissed for lack of standing when the petitioning putative father shows the requisite sexual contact but has not had genetic testing, which might establish the genetic basis for standing that arises from a positive genetic test?

ANALYSIS

I.

This court should properly answer a certified question that asks whether a motion to dismiss was properly denied. The certified question here falls squarely within the terms of the rule of civil appellate procedure that an appeal may be brought to this court “if the trial court certifies that the question presented is important and doubtful, from an order which denies a motion to dismiss * * * .” Minn. R. Civ.App. P. 103.03(h).

We note also that, were we to decline review, as the dissent urges, the result of the genetic test will be revealed without the opportunity for further appeal. Because rejecting certification would insulate the decision from review and deny the Overby’s their day in this appellate court, the interests of justice compel consideration of the certified question at this time. See Minn. R. Civ.App. P. 103.04 (Appellate courts “may review any other matter as the interest of justice may require.”).

II.

“Whether the trial court properly interpreted the parentage act is a question of law, which we review without deference to the trial court’s conclusions.” In re Welfare of C.M.G., 516 N.W.2d 555, 558 (Minn.App.1994).

The Minnesota Parentage Act provides, in Minn.Stat. § 257.57, subd. 2(1) (1998), that a man alleging himself to be the father of a child may bring an action “for the purpose of declaring the existence of the father and child relationship” based on a presumed father status under any of the clauses in Minn.Stat. § 257.55, subd. 1 (1998). Under clause (f) of that subdivision, a man’s paternity is presumed if

[e]vidence of statistical probability of paternity based on blood or genetic testing establishes the likelihood that he is the father of the child * ⅜ * is 99 percent or greater.

Minn.Stat. § 257.55, subd. 1(f) (1998). That is the basis respondent asserts for his paternity presumption..

This court, in discussing competing presumptions, has stated that the paternity presumption of the mother’s husband does not automatically prevail over a genetic-test-based presumption of paternity. Kelly v. Cataldo, 488 N.W.2d 822, 827 (Minn.App.1992), review denied (Minn. Sept. 15, 1992). The Kelly court stated:

First, the legislature has withheld a declaration of the weightier presumption, directing instead that the courts adjudicate the issue. Second, and more significantly, the legislature has directed the courts, when weighing considerations of policy and before [determining the] governing conflicting presumptions, to examine the case “on the facts.”

Id.

A positive genetic test thus creates a presumption of paternity that would, in this action to establish paternity, compete with the presumption of paternity applicable to the mother’s husband. As this court [621]*621held in Kelly, the legislature has not declared that one of these provisions is necessarily weightier or that one automatically trumps the other. When competing presumptions are established, the district court in an action to establish paternity must determine which presumption should control by evaluating on the facts which presumption is founded on the weightier considerations of logic and policy. Minn. Stat. § 257.55, subd. 2 (1998). Kelly confirmed the judicial obligation in each ease to weigh competing marriage and genetic-based presumptions.

The narrow question before us in this case, therefore, is whether a district court must dismiss for lack of standing, before the petitioner obtains the genetic testing that may establish the “statistical probability” that gives rise, first, to a genetic-based presumption of his paternity and, second, to the resulting standing to maintain to its conclusion an action to establish the petitioner’s paternity.

Although the petitioner in Kelly already had a positive genetic test — and the resulting presumption — the Kelly court foresaw the question squarely presented in this case:

[W]e need not determine here the difficult issue which arises when a proceeding such as this is initiated by a man who shows reason to believe testing will demonstrate his presumptive parenthood but who has no present evidence of genetic testing.

Kelly, 488 N.W.2d at 828. The Kelly court also stated that the question of ordering genetic tests was “invited but not answered by the legislature when it amended the parentage act [in 1989] to establish presumptive parenthood on the basis of genetic testing.” Id.

We are not so certain the legislature has left the question unanswered. The statutes quite clearly allow a man in respondent’s position to be a party to a parentage action:

The child, the mother, or personal representative of the child, the public authority chargeable by law with the support of the child, the personal representative or a parent of the mother if the mother has died or is a minor,

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Witso v. Overby
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Cite This Page — Counsel Stack

Bluebook (online)
609 N.W.2d 618, 2000 WL 557950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/witso-v-overby-minnctapp-2000.