T.B. III v. N.B. and State of Missouri, Department of Social Services, Family Support Division , 2015 Mo. App. LEXIS 1309 ( 2015 )

3111 the mtasnurt Qtnurt at gppeata
(Eastern Etatrttt
SOUTHERN DIVISION
TB. 111, ) ED102390
)
Appellant, ) Appeal from the Circuit Court
) of Cape Girardeau County
v. ) iZCG—DR00387
)
N.B. and State of Missouri, ) Honorable Benjamin F. Lewis
Department of Social Services, )
Family Support Division, )
)
Respondent. ) Filed: December 15, 2015
Introduction
TB. 111 (T.B.) appeals from the trial court’s Judgment denying his petition for declaration
of non-paternity. On appeal, T.B. argues that the trial court erred in finding his petition was
barred by the statute of limitations, and that he is entitled to relief from the paternity judgment
under Rule ’1'4.06(d)l and Rule 74.06(b). We affirm.
Background
N.B. (Mother) gave birth to T.Q.B. (the Child) on August 31, 2000. "PB. signed an
affidavit acknowledging paternity of the Child. In February of 2001, the State of Missouri,
Department of Sociai Services, Family Support Division (FSD) made an administrative
1 All rule references are to Missouri Rules of Civil Procedure (2015), unless otherwise indicated.
determination declaring T.B. to be the presumed or legal father of the Child and requiring T.B. to
pay child support for the Child, which T.B. did not contest because he believed he was the father.
FSD filed the administrative order with the circuit court.
On August 27, 2012, filed a petition seeking a determination of non—paternity. In his
first amended motion, he alleged he had acknowledged paternity and consented to the
administrative order because Mother told him he was the Child’s father. TB. attached to the
petition a DNA test report showing that he was not the biological father of the Child. T.B.
sought relief from the 2001 paternity judgment under Rule 74.06(d), asserting that Mother had
perpetuated fraud against him.
At an evidentiary hearing on T.B.’s petition, T.B. testified to the following. He and
Mother had been in a relationship. When she became pregnant, she told him that he was the
father, their relationship was exclusive, and no one else could be the father. When F SD entered
its administrative order, TB. did not contest it because he believed he was the Child’s father.
However, in 2010, sometime prior to June, Mother informed T.B. he was not'the biological
father of the Child. Mother explained she wanted to clear her conscience. T.B. ordered a DNA
paternity test on June 3, 2010, which confirmed he was not the biological father. Although
Mother was subpoenaed to appear at the evidentiary hearing, she did not appear either in person
or through counsel. The Child was represented at the hearing by his court—appointed guardian
ad (item.
The trial court found that Mother knowingly made false statements to TB. that he was
the father of the Child with the intent to induce TB. to consent to paternity, and that T.B. relied
on those statements in consenting to paternity, causing T.B. to incur thousands of dollars in
Conclusion
The judgment of the trial court is affirmed.
Lisa S. Van Amburg, C.J., concurs.
Philip M. Hess, J ., concurs.
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support liability. Thus, the trial court concluded that Mother perpetuated extrinsic fraud upon
T.B.
Nevertheless, the trial court denied T.B.’s petition. The trial court concluded T.B.-’s right
to bring an action under Rule 74.06(d) for extrinsic fraud was foreclosed by the statutory time
limit for him to contest paternity, which had run. In determining the statute of limitations, the
court noted TB. filed his petition beyond the limitations period as set forth in Section 210.854,2
but questioned the application of Section 210.854’3 time limit in cases where the mother has
deceived a man into believing he is the father of the child. Accordingly, the court applied
Section 516.280, RSMo. (2000), which tolls the statute of limitations when a wrongdoer
fraudulently conceals his actions and begins rumting the applicable statutory limitations period
from the date of discovery. The court concluded, however, that because T.B. learned of the
DNA test results in June of 2010, his petition filed in August of 2012 was too late.
T.B. filed a motion for new trial and to admit additional evidence, asserting that although
the DNA tests were completed on June 15, 2010, they were not released until TB. paid for them
on May 26, 2012. Accordingly, he argued the statute of limitations did not begin to run under
Section 516.280 until May 26, 2012, thus making his petition filed in August of 2012 timely.
The trial court denied his motion. This appeal follows.
Standard of Review
We will affirm the judgment in a judge-tried case unless it is not supported by substantial
evidence, it is against the weight of the evidence, or it erroneously declares or applies the law.
Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We review de novo a trial court’s
statutory interpretations. Sutton v. Mun. Court Div. Des Peres, 462 S.W.3d 446, 448 (Mo. App.
ED. 2015). Reviewing courts are “primarily concerned with the correctness of the result, not the
2 All statutory references will be to RSMc. (Cum. Supp. 2009), unless otherwise indicated.
3
route taken by the trial court to reach it; the trial court’s judgment will be affirmed if it is correct
on any ground supported by the record.” Mo. Soybean Ass’n V. Mo. Clean Water Comm’n, 102
S.W.3d 10, 22 (Mo. banc 2003).
Discussion
Point I
In his first point on appeal, T.B. argues the trial court erred in denying his petition for
determination of non-paternity as out of time, because he did not receive the results of the DNA
paternity test until May 26, 2012, and he properly filed his petition within two years of that date.
FSD responds the last day for TB. to have filed his petition for non-paternity under Section
210.854 was December 31, 2011, and although the trial court properly found T.B.’s petition to be
out of time, it erred in using Section 516.280 to extend the statute of limitations.
In 2009, the Missouri legislature enacted Section 210.854, which “creates a right to seek
I!
to set aside an otherwise final, non-appealable judgment determining paternity. State ex rel.
State Dept. of Social Servs., Family Support Div. v. Campbell, 386 S.W.3d 229, 230 (Mo. App.
W.D. 2012). The statute provides that a legal father may file a petition to set aside the paternity
judgment “in the interests of justice and upon grounds set forth in this section” at any time prior
to December 31, 2011, or, after that date, within two years of the entry of the original judgment
of paternity. Section 210.854.1. The “grounds set forth” in this section are (I) evidence that was
not considered before the entry of judgment and (2) genetic test results that exclude the putative
father as the biological father of the child. Section 210.854.2.
Here, T.B. acknowledged paternity of the Child in 2000 based on false assurances from
Mother that he was the only possible father, and he consented to a judgment of paternity in 2001.
I Under Section 210.854 he was entitled to file a petition to set aside that paternity judgment only
until December 31, 2011, which he did not do. Section 516.280, however, provides that when a
person prevents the commencement of an action through any improper act, the applicable statute
of limitations will be tolled until the discovery of the improper act. Applying Section 516.280,
the trial court tolled the start of Section 210.854’s two-year statute of limitations until the date
TB. discovered the results of the DNA test, which the court determined to be June 11, 2010.
The court then concluded that his petition filed in August of 2012 was too late. On appeal, T.B.
agrees with the trial court’s application of Section 516.280 but challenges the trial court’s finding
that the date of discovery was June 11, 2010, and FSD argues that the court erred in applying
Section 516.280. We agree with FSD.
“This court has uniformly held that where a statute of limitations is a special one, not
included in the general chapter on limitations, the running thereof cannot be tolled because of
fraud, concealment or any other reason not provided in the statute itself.” State ex rel. Bier v.
B_iggg, 178 S.W.2d 347, 350 (Mo. 1944); w Airis v. Metro. Zoological Park & Museum
DE, 332 S.W.3d 279, 281 (Mo. App. ED. 2011) (“[W]hen a law provides a specific statute of
limitations it prevails over the general statute of limitation”). Further, Chapter 516 itself
provides that Section 516.280 “shall not extend to any action which is or shall be otherwise
limited by any statute; but such action shall be brought within the time limited by such statute.”
Section 516.300, RSMo. (2000).
Section 210.854 is a special statute that creates a method for challenging, but also limits
the time for challenging, a judgment of paternity on the basis of DNA results or other evidence
not considered at the time of the entry of judgment. Section 210.854; Campbell, 386 S.W.3d at
230. It does not authorize the time limit to be extended for any reason, including fraud. Section
210.854. Because no exceptions to the limitation are written into the statute, we are not at liberty
to insert one. Frazee v. Partney, 314 S.W.2d 915, 919 (Mo. 1958) (“A special statute of
limitations must carry its own exceptions, and we may not engrafi others upon it”). Thus here,
the statute of limitations as set forth in Section 210.854 applies and may not be extended or
tolled by Section 516.280, despite Mother’s fraudulent concealment of the Child’s true
parentage.
Regardless, even assuming arguendo that Section 516.280’s tolling statute did apply,
TB. is still barred from recovery. T.B. testified that Mother told him in 2010mthe record does
not include the exact date or month, but presumably sometime before June 3 when he sent the
DNA samples for analysiswathat he was not the father of the Child. 'Because he discovered the
fraud prior to June 3, 2010, the two-year statute of limitations would begin running by that date.
Thus, his petition filed on August 27, 2012, was past the deadline to challenge a judgment of
paternity.
The trial court did not err in denying T.B.’s petition as out of time. Point denied.
M
In his second and third points on appeal, T.B. argues he was entitled to relief from the
paternity judgment under Rule 74.06(b) and (d), asserting he was entitled to equitable relief due
to Mother’s extrinsic fraud, namely, Mother’s false representations of paternity and his reliance
on that false representation. For ease of analysis, we address Point III, Rule 74.06(b), first.
Following a final judgment, Rule 74.06(b) allows a court to relieve a party from the
judgment on the basis of, among other things, fraud, misrepresentation, or other misconduct by
the adverse party. A motion filed under Rule 74.06(b) must be filed “not more than one year
after the judgment or order was entered.” Rule 7406(0). Here, the judgment of paternity was
entered in 2001, making T.B.’s action filed in 2012 too late. Point III is denied.
Nevertheless, Rule 74.06(d) provides relief from a judgment by allowing a party at any
time to bring an independent action in equity to set aside a judgment that was obtained by
extrinsic fraud against the court. Walker v. Walker, 280 S.W.3d 634, 636 (Mo. App. W.D.
2009). The trial court here determined Mother had engaged in extrinsic fraud in order to induce
TB. to default or consent to a paternity judgment against him, but nevertheless found that
actions for equitable relief under Rule 74.06(d) are limited by the statute of limitations associated
with the underlying action. T.B. challenges the trial court’s dismissal, and FSD, while it agrees
with the result, argues T.B.’s allegations constitute intrinsic, not extrinsic, fraud. We disagree
with the trial court’s analysis but agree with its conclusion, and we find that T.B.’s inattention
deprived him of a potential remedy under Rule 74.06(d).
Rule 74.06(d) is an equitable remedy that a party can bring “at any time” upon the
discovery of extrinsic fraud, regardless of the statute of limitations associated with the
underlying judgment. m McKarnin v. McKarnin, 79S S.W.2d 436, 439 (Mo. App. W.D. 1990)
(action under Rule 74.06(d) may be brought “at any time”). The trial court here, however,
limited recovery under Rule 74.06(d) on a basis unrelated to the discovery of extrinsic fraud,
finding that Rule 74.06(d) is limited by statutory deadlines. Such a reading renders the rule
meaningless, which we decline to do.
Nevertheless, remedy under Rule 74.06(d) is not unlimited. To obtain the relief sought
on the basis of extrinsic fraud, “the complaining party must be shown to be free of fault, neglect
or inattention to the case.” Essig v. Essig, 921 S.W.2d 664, 667 (Mo. App. W.D. 1996). Here,
T.B. neither pleaded nor proved he was free of fault, neglect, or inattention. & Reding v.
Re_ding, 836 S.W.2d 37, 43 (Mo. App. SD. 1992) (“[f]ailure of complaining party to allege he
[or she] was free from fault, neglect, or inattention is fatal to the action”). T.B.’s petition is
silent on the issue. At the hearing, while he testified regarding why he did not obtain the results
of the DNA test for nearly two years, he did not provide an explanation for why he failed to
proceed on the basis of Mother’s confession that he was not the Child’s Father. T.B. discovered
Mother’s fraud prior to June of 2010, but he did not file his petition for declaration of non-
paternity until August of 2012——over two years later. We note that he testified that he did not
know about the possibility of receiving legal aid, which we presume he intended as a general
explanation for his delay in moving his case forward. This explanation, however, does not
excuse his complete inaction. It was incumbent upon T.B. to determine if and how to proceed in
a timely manner.
There is no explicit time limit to bring an independent action under Rule 74.06(d) upon
discovering the extrinsic fraud, but this Court has previously held that when a person fails to act
upon the discovered extrinsic fraud for over a year, the person is barred from equitable relief.
See Pope v. Stat , 819 S.W.2d 397, 400 (Mo. App. ED. 1991). T.B.’s delay of over two years in'
filing his petition for declaration of non-paternity demonstrates a lack of attention depriving him
of his right to equitable relief under Rule 74.06(d). The trial court did not err in denying T.B.’s
petition for determination of non-paternity.
Although we affirm, we question the trial court’s conclusion that Mother engaged in
extrinsic fraud sufficient to entitle T.B. to an equitable remedy under Rule 74.069(d). What
constitutes extrinsic versus intrinsic fraud is often difficult to determine. Fraud that induces a
party to default or consent to a judgment against them is extrinsic fraud. m, 280 S.W.3d at
636. Extrinsic fraud is limited to the fraudulent procurement of a judgment; it must relate to the
manner in which the judgment was obtained and not the merits of the judgment itself. Q; see
fist; State ex rel. Seals v. McGuire, 608 S.W.2d 407, 409 (Mo. 1980) (falsifying sheriff‘s return
to deprive party of notice was extrinsic fraud). Conversely, false averments in court pleadings,
perjured testimony in court, and fabricated evidence before a coult are intrinsic fraud. See e.g.,
Walker, 280 S.W.3d at 638; Pope, 819 S.W.2d at 399; McKarnin, 79S S.W.2d at 439—40; Vinson
v. Vinson, 725 S.W.2d 121, 124 (Mo. App. ED. 1987).
T.B. urges this Court to adopt the Western District’s holding in State ex rel. Div. of Child
Support Enforcement V. Hiil, 53 S.W.3d 137 (Mo. App. W.D. 2001), which, as here, involved a
petition for non-paternity on the basis of fraud. In E, the mother falsely told Hill she had
submitted the child for DNA testing and the results showed Hill was the father, and in reliance
on this false representation Hill consented to a judgment of paternity against him. m, 53
S.W.3d at 139. In fact, the mother had never submitted the child to DNA testing and Hill was
not the biological father. Id. at 144. Nine years later, the father moved for relief from the
paternity judgment on the basis of fraud. 1d,, at 139. The Western District found that the father
had sufficiently pied an equitable claim for relief from the earlier paternity judgment on the basis
of extrinsic fraud and was thus entitled to proceed under Rule 74.06(d). Li at 144-45.3
The Western District has indicated that it intends m to be read broadly. & Statfl
rel. Lowry v. Carter, 178 S.W.3d 634, 638 11.2 (Mo. App. W.D. 2005) (citing E to state in dicta
that where one party relied on misrepresentations of paternity by other party resulting in defauit
judgment, that could constitute extrinsic fraud). Nevertheless, we note that since ill, and
Lowry, the Missouri legislature has enacted Section 210.854 establishing a two-year statute of
3 The Western District in fill! distinguished this Court’s opinion in State ex rel. Wade 1;. Frawley, 966 S.W.2d 405(Mo. App. ED. 1998), noting that in Wade, the father had not properly pled a claim for extrinsic fraud sufficient to
invoke Rule 74.06. State ex rel. Div. of Child Support Enforcement v. Hill, 53 S.W.3d 137 (Mo. App. W.D. 2001).
Likewise, our decision in Wade does not affect our opinion here. The Wade court did not allow the trial court to
order blood testing to prove extrinsic fraud, noting that blood test results alone do “not have any bearing on his
allegations of {land by mother.” Wade, 966 S. W.2d at 406. Rather, the father must prove extrinsic fraud by
showing the mother knowingly made a false statement about paternity at the time he signed the paternity agreement
upon which he properly relied. Ll. Blood test results are used to challenge paternity, and a party may only
challenge paternity within the time allowed by the statute. Ll.
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limitations to bring an action challenging paternity. This is a difficult area of law in which the
legislature must weigh the interests of not only the father but also the child, who will be left
without one of his or her parents. The concept of fraud is inherent in Section 210.854. Section
210.854 allows a father to set aside a previous paternity judgment on the basis of later DNA test
results ruling out biological paternity, but specifically limits this remedy. We note, moreover,
that even where DNA results rule out paternity and the father has otherwise complied with
Section 210.854, he is not absolutely entitled to relief: rather, the legislature has given the trial
court the discretion to decline to set aside the previous paternity judgment where it is not in the
best interest of the parties to do so. See Section 210.854.4.
If this Court was to decide that a false out-of-court statement about paternity constitutes
extrinsic fraud that could invoke a trial court’s equitable authority under Rule 74.06(d), such a
decision would render Section 210.854’3 specific statute of limitations—created upon
consideration of the interests of both the father and the child-a nullity. Courts should avoid
interpreting statutes in a way that leaves the statutory language meaningless. Investors Ailiance
LLC v. Bordeaux, 428 S.W.3d 693, 696 (Mo. App. ED. 2014). Despite our concerns, this Court
need not decide whether the legislature intended Section 210.854 to supersede the Western
District’s decision in E, because here TB. is not entitled to relief under either Section 210.854
or Rule 74.06(d).
The trial court did not err in denying T.B.’s petition for determination of non-paternity.
Point II is denied.
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