Rydberg v. Rydberg , 2004 N.D. LEXIS 177 ( 2004 )

SANDSTROM, Justice.

[¶ 1] The Ward County Social Service Board is appealing a Northwest Judicial District Court order dismissing a child support action against Andrew Rydberg because DNA testing excluded him as the father of Diane Rydberg’s child. The Board argues that because Andrew Rydberg did not rebut the presumption of paternity, the district court erred when it dismissed the child support action. The Board also argues the district court erred because it did not consider the best interests of the child involved and no guardian ad litem was appointed. We affirm, concluding the district court did not err in dismissing the child support action.

I

[¶ 2] On March 9,1992, Diane Rydberg gave birth to a child. On March 10, 1992, Andrew Rydberg acknowledged in writing that he was the father of the child. The parties were married on July'22, 1994, and separated in April 2002. In May 2002, the Ward County Social Service Board brought an action for child support against Andrew Rydberg. The Board is a real party in interest under N.D.C.C. § 14-09-09.26 for the purposes of establishing paternity and of securing repayment of benefits paid, future support, and costs in this action. See Sprynczynatyk v. Celley, 486 N.W.2d 230, 231-32 (N.D.1992). After the action for child support was brought, Andrew Rydberg denied he was the child’s biological father and asked that the case be dismissed. In his answer, he stated that if the case were not dismissed, he would request genetic testing. He subsequently requested genetic testing for the purpose of proving the nonexistence of a parent-child relationship. On September 23, 2002, a hearing was held on the request for genetic testing. On October 18, 2002, the district court ordered Diane Rydberg, Andrew Rydberg, and the child to submit to genetic testing. The district court found DNA testing excluded Andrew Rydberg as the father of Diane Rydberg’s child. On the basis of the DNA testing, the district court dismissed the case with prejudice. The Board moved for reconsideration of the district court’s order. The district court, finding. the paternity evidence was clear that Andrew Rydberg was not the father of the child, denied the motion.

[¶ 3] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 4] The Ward Country Social Service Board argues Andrew Rydberg was the presumed father of the child and failed to rebut this presumption.

A

[¶ 5] Andrew Rydberg argues the Ward County Social Service Board is prevented from raising this issue on appeal because it did not raise it in its motion to alter or amend the judgment under N.D.R.Civ.P. 59(j). Andrew Rydberg argues that issues on appeal should be restricted to those raised in a motion to alter or amend the judgment. We previously addressed this issue in In re N.C.C., in which we concluded that a motion under N.D.R.Civ.P. 59(j), unlike a motion for a new trial under N.D.R.Civ.P. 59(b), does not limit the issues on appeal to those presented in the motion. In re N.C.C., 2000 ND 129, ¶ 12, 612 N.W.2d 561. We will not, however, consider issues that were not raised at the district court. See Owens v. State, 1998 ND 106, ¶ 50, 578 N.W.2d 542 (we will not consider issues raised for the first time on appeal).

[¶ 6] The Board moved to alter or amend the judgment under N.D.R.Civ.P. 59(j). In its motion, the Board argued that Andrew Rydberg was precluded from rebutting the presumption of paternity. This is one basis for the Board’s argument that Andrew Rydberg failed to rebut the presumption of paternity. This issue was presented to the district court during the hearing regarding genetic tests. The Board also argued to the district court that if genetic tests were positive, the best interests of the child should be determined. This is another basis for the Board’s argument that Andrew Rydberg has not rebutted the presumption of paternity. We conclude the Board is not prevented from raising this issue on appeal.

B

[¶ 7] The Ward County Social Service Board argues that a presumption of paternity was created under N.D.C.C. § 14-17-04(l)(e), (l)(c)(l), and (l)(d). It argues this presumption cannot be rebutted because the statute of limitations to rebut the presumption of paternity has run and because genetic tests alone should not be enough to rebut the presumption of paternity.

[¶ 8] Section 14-17-04(l)(e), N.D.C.C., provides:

1. A man is presumed to be the biological father of a child if:

e. The man acknowledges the man’s paternity of the child in a writing filed with the division of vital statistics of the state department of health, which shall promptly inform the mother of the filing of the acknowledgment, and the mother does not dispute the acknowledgment within a reasonable time after being informed of the acknowledgment, in a writing filed with the division of vital statistics of the state department of health. If another man is presumed under this section to be the child’s father, acknowledgment may be effected only with the written consent of the presumed father or after the presumption has been rebutted.

Section 14 — 17—04(l)(c)(l), N.D.C.C., provides:

1. A man is presumed to be the biological father of a child if:

c. After the child’s birth, that man and the child’s biological mother have married or attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:

(1) The man has acknowledged the man’s paternity of the child in writing filed with the division of vital statistics of the state department of health.

Section 14-17-04(l)(d), N.D.C.C., provides:

1. A man is presumed to be the biological father of a child if:

d. While the child is under the age of majority, the man receives the child into the man’s home and openly holds out the child as the man’s biological child.

[¶ 9] One day after the birth of Diane Rydberg’s child, Andrew Rydberg acknowledged paternity in a writing filed with the division of vital statistics of the State Department of Health. After the child’s birth, Andrew Rydberg and the child’s biological mother, Diane Rydberg, married. The couple lived together with the child during the marriage. Andrew Rydberg does not dispute that a presumption of paternity was created.

[¶ 10] “ ‘Issues involving the application and interpretation of statutes are questions of law fully reviewable by this Court.’ ” Guardianship of Shatzka, 2003 ND 147, ¶ 5, 669 N.W.2d 95 (quoting Public Serv. Comm’n v. Wimbledon Grain Co., 2003 ND 104, ¶ 20, 663 N.W.2d 186). In construing statutes, it is the Court’s duty to ascertain the Legislature’s intent. N.D.C.C. §§ 1-02-02 and 1-02-03. Words in a statute are to be understood in their ordinary sense. Public Serv. Comm’n v. Wimbledon Grain Co., 2003 ND 104, ¶ 20, 663 N.W.2d 186. Words must be given their plain, ordinary, and commonly understood meaning. Reed v. Hillsboro Pub. Sch. Dist. No. 9, 477 N.W.2d 237, 240 (N.D.1991). “We construe statutes as a whole and harmonize them to give meaning to related provisions.” Shatzka, at ¶ 5.

1

[¶ 11] The Ward County Social Service Board argues the presumption of paternity was not rebutted within the time frame allowed by N.D.C.C. § 14-17-05(l)(b), which provides:

1. A child, the child’s biological mother, or a man presumed to be the child’s father under subdivision a, b, or c of subsection 1 of section 14-17-04, may bring an action:

b. For the purpose of declaring the nonexistence of the father and child relationship presumed under subdivision a, b, or c of subsection 1 of section 14-17-04 only if the action is brought within a reasonable time after obtaining knowledge of relevant facts, but in no event later than five years after the child’s birth. After the presumption has been rebutted, paternity of the child by another man may be determined in the same action, if that man has been made a party.

[¶ 12] Section 14-17-05(2), N.D.C.C., provides that if paternity was presumed under subdivision d, e, or f of subsection 1 of section 14-17-04, an action can be brought at any time to determine the existence or nonexistence of the father and child relationship.

[¶ 13] Although the statute of limitations to rebut the presumption created under section 14-17-04(l)(c) has passed, N.D.C.C. § 14-17-05(l)(b), section 6(a)(2) of the Uniform Parentage Act (“U.P.A.”), does not preclude an assertion of nonpa-ternity as a defense to the presumptive father in another action. Interest of K.B., 490 N.W.2d 715, 717 (N.D.1992). Nonexistence of the father and child relationship can be asserted as a defense after the five years have passed. See id.

[¶ 14] North Dakota distinguishes between bringing an action and asserting a defense for the purposes of this statute. Few other states that have adopted the U.P.A. have addressed this distinction. In Alabama, there is no statute of limitations to claiming nonexistence of paternity; therefore, a man can claim the nonexistence of paternity at any time, even if presumed to be the father. See J.N.H. v. N.T.H. II, 705 So.2d 448, 452 (Ala.Civ.App.1997). Missouri, however, specifically mentions that the five-year statute of limitations forecloses a defense of nonpaternity by the presumed father. Missouri Div. of Child Support Enforcement v. T.J., 981 S.W.2d 149, 150 (Mo.1998). As explained in K.B., Minnesota and Colorado have also interpreted the U.P.A. to allow a presumed father to challenge the presumption of paternity in an action brought more than five years after the child’s birth. See generally K.B., 490 N.W.2d at 717. These states have found that the right to claim nonpa-ternity as a defense is not subject to time limitations. See also Interest of R.T.L., 780 P.2d 508, 514 (Colo.1989); Reynolds v. Reynolds, 458 N.W.2d 103, 105 (Minn.1990); State ex rel. Ward v. Carlson, 409 N.W.2d 490, 493 (Minn.1987); Ford v. Mostaghimi, 2002 WL 46996, *2, 2002 Minn.App. LEXIS 47, *5. These cases remain good law.

[¶ 15] The results in these cases, although based in part on interpretation of the U.P.A., were also based on the laws in those states pertaining to statute of limitations. Reynolds, 458 N.W.2d at 105; K.B., 490 N.W.2d at 717; R.T.L., 780 P.2d at 514. In K.B., this Court held that section 14-17-05(l)(b), N.D.C.C., is a statute of limitations and, as such, acts only to bar the bringing of the specified action and does not extinguish the claim or affect remedies other than the one to which it applies. 490 N.W.2d at 717 (citing Guthmiller v. North Dakota Department of Human Services, 421 N.W.2d 469, 471, 473 (N.D.1988); Larson v. Quanrud, Brink & Reibold, 78 N.D. 70, 47 N.W.2d 743, 750 (1950)).

[¶ 16] In reexamining KB., this Court contemplated whether KB. might set up a situation in which no other legal father could be established because of the statute of limitations for an action to determine a father-child relationship. Section 14-17-06, N.D.C.C., provides:

An action to determine the existence of the father and child relationship as to a child who has no presumed father under section 14-17-04 may not be brought later than three years after the birth of the child, or later than three years after July 1,1975, whichever is later. However, an action brought by or on behalf of a child whose paternity has not been determined is not barred until three years after the child reaches the age of majority.

[¶ 17] If there is a presumption of paternity, however, N.D.C.C. § 14-17-05 provides that an action can be brought at any time to prove the existence of a father-child relationship presumed under subdivision a, b, c, d, e, or f of subsection 1 of section 14-17-04. See N.D.C.C. § 14-17-05(l)(a) and (2). Therefore, if there is a presumed father, then an action can be brought at any time to establish the existence of a father-child relationship. If, on the other hand, there is no presumed father and paternity of the child has not been determined, a child or representative of the child may bring an action at any time, although the parents may not be able to bring the action. Because an action to establish a father-child relationship is not completely barred by the statute of limitations, KB. does not set up a situation in which no other legal father could be determined.

[¶ 18] Because section 14-17-05(l)(b) is a statute of limitations barring only the bringing of a paternity action, we conclude Andrew Rydberg was not precluded from raising nonpaternity as a defense in the child support action brought by the Ward County Social Service Board.

2

[¶ 19] The Ward County Social Service Board argues that genetic tests are not enough to rebut the presumption of paternity in light of N.D.C.C. § 14-17-04(2), which provides:

A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man.

[¶20] The Board argues that N.D.C.C. § 14-17-04(2) requires adjudication of paternity by another man before the presumption is rebutted. It argues this is the only way paternity can be rebutted.

[¶ 21] One U.P.A. state has held that this statute clearly states the presumption of paternity is rebutted only by a court decree establishing paternity of the child by another man. It explains that in the absence of an order declaring nonparen-tage, the presumed father is still the father of the child. In re Marriage of Wendy M., 92 Wash.App. 430, 962 P.2d 130, 134-35 (1998). This decision was later clarified in In re Parentage of Liam J.H., 119 Wash.App. 1019, 2003 WL 22701581 *7 (2003). The court stated the “Wendy M. court meant that as applied to the facts of that case, only a decree establishing paternity in another man would have relieved the presumed father of his obligation to support his presumptively legitimate child.” Id.

[¶ 22] Many other states that have adopted the U.P.A., however, have found that biological evidence is clear and convincing enough to rebut the presumption of paternity. See J.N.H. v. N.T.H. II, 705 So.2d 448, 452 (Ala.Civ.App.1997) (scientific evidence was sufficient to support trial court’s decision excluding husband as child’s biological parent); Henry v. Henry, 1998 ND 141, ¶¶ 7-8, 581 N.W.2d 921 (genetic testing will rebut the presumption of paternity created by N.D.C.C. § 14-17-04(2)); Blake v. Division of Child Support Enforcement, 525 A.2d 154, 159 (Del.1987) (clear and convincing evidence can include the results of scientific tests); Villareal v. Peebles, 299 Ill.App.3d 556, 233 Ill.Dec. 502, 701 N.E.2d 145, 149 (1998) (hard or genetic evidence is needed to overcome the presumption of paternity); Dillon v. Industrial Comm’n, 195 Ill.App.3d 599, 142 Ill.Dec. 341, 552 N.E.2d 1082, 1088 (1990) (presumption rebutted if blood tests show person is not the father of the child); Patrick T. v. Michelle L., 2000 WL 1752792, *3, 2000 Ohio App. LEXIS 5578 *9 (Ohio App.2000) (genetic tests are admissible to overcome the presumption of paternity). Because these states have found genetic tests to rebut the presumption of paternity, it is clear they do not interpret the U.P.A. as allowing the presumption of paternity to be rebutted only when another man is adjudicated the father.

[¶ 23] If the Legislature had intended a court decree establishing paternity of the child by another man to be the only way to rebut the presumption, we believe it would not have included the clause stating that a presumption of paternity can be rebutted by clear and convincing evidence. The ordinary meaning of the statutory language establishes that a presumption of paternity can also be rebutted by clear and convincing evidence. To interpret the statute as the Board would like would be to ignore part of the statute altogether.

[¶ 24] The Board also argues that clear and convincing evidence does not rebut the presumption of paternity in every case and that other factors must be considered.

[¶25] One U.P.A. state has held that clear and convincing evidence, such as the results of genetic tests, will not rebut the presumption of paternity in every case, but only in appropriate cases. It bases this rationale on the statutory language that says a presumption of paternity may be rebutted in an appropriate action only by clear and convincing evidence. In re Nicholas H., 28 Cal.4th 56, 120 Cal.Rptr.2d 146, 46 P.3d 932, 939 (2002). In Nicholas H., the court stated:

When [the legislature] used the limiting phrase an appropriate action, the Legislature is unlikely to have had in mind an action ... in which no other man claims parental rights to the child, an action in which rebuttal of the ... presumption will render the child fatherless. Rather, we believe the Legislature had in mind an action in which another candidate is vying for parental rights and seeks to rebut a ... presumption in order to perfect his claim, or in which a court decides that the legal rights and obligations of parenthood should devolve upon an unwilling candidate.

Id. at 941.

[¶ 26] This interpretation allows the court to determine on the basis of the underlying facts and circumstances of an action whether that action is appropriate. The word action is well-defined in law. An action has been defined as a legal demand of one’s rights in a court of justice. LC v. TL, 870 P.2d 374, 379 (Wyo.1994); see also 1A C.J.S. Actions § 2 (1985); Elmo v. James, 282 S.W. 835 (Tex.Civ.App.1926). Section 14-17-04(2), N.D.C.C., is referring to an appropriate legal demand of one’s rights, not the appropriate circumstances under which the demand of rights is asserted. See also LC v. TL, 870 P.2d at 379 (interpreting same statute provision to plainly mean that when an appropriate action, meaning a legal demand of one’s rights, has been brought, a presumption can be rebutted by clear and convincing evidence). We find the statute to be plain and unambiguous, and we reject the Board’s and California’s interpretations.

[¶ 27] The California cases relied upon by the Board are distinguishable from this case. Those cases involved presumed fathers whose paternity was being challenged by others. The fathers were not asserting nonpaternity, but rather were trying to retain the presumption of paternity. The cases involved situations in which a child could possibly have been precluded from having a relationship with a committed father by another person the child may not even have known. The California cases were custody cases and not child support actions. See generally In re Raphael P., 97 Cal.App.4th 716, 118 Cal.Rptr.2d 610 (2002); In re Jerry P., 95 Cal.App.4th 793, 116 Cal.Rptr.2d 123 (2002).

[¶ 28] The Board also argues that the best interests of the child should have been considered because there is a competing presumption of paternity in this case. At oral argument, however, the Board conceded that no such competing presumption existed.

[¶ 29] We conclude genetic tests are enough to rebut the presumption of paternity in N.D.C.C. § 14-17-04(2).

Ill

[¶ 30] The Ward County Social Service Board also argues the district court erred in failing to have a guardian ad litem present to represent the child under N.D.C.C. § 14-17-08. During the hearing on genetic testing, the Board stated this was a case in which a guardian ad litem should be appointed. Although this began as a child support action and not an action to declare the existence or nonexistence of paternity, the effect of this case will be the same. The father sought to rebut the presumption of paternity presumed under N.D.C.C. § 14-17-04. The court order in this case established that DNA testing excludes Andrew Rydberg as the child’s father. Under N.D.C.C. § 14-17-08:

A child who is a minor must be represented by the child’s parent whose parentage has been established under' section 14-17-03 or a guardian ad litem appointed by the court. The court may appoint the director of the county social service board as guardian ad litem for the child.

[¶ 31] In this case, the court did not appoint a guardian ad litem to represent the child’s interests. Section 14-17-08, N.D.C.C., does not require that a guardian ad litem be appointed when a parent is representing a child. In this case, however, because it does not appear a parent was representing the child, a guardian ad litem should have been appointed. But here the Board was clearly representing the child’s interests. During the. hearing on genetic tests, the Board stated several factors to stop the challenge of paternity. Among these factors, the Board listed the best interests of the child. The Board also stated that “[f]or the child’s sake I think that we have to be careful about how we open up her birthright.” We conclude the district court’s failure to appoint a guardian ad litem in this case did not affect the substantial rights of the parties, because the child’s interests were represented. Therefore, there was no reversible error. N.D.R.Civ.P. 61. .

IV

[¶ 32] Because Andrew Rydberg was not precluded from raising nonpaternity as a defense in this child support action, and because genetic tests are enough to rebut the presumption of paternity, and because the child’s interests were adequately represented, we affirm the district court’s dismissal.

[¶ 33] GERALD W. VANDE WALLE, C.J., and WILLIAM A. NEUMANN, J., concur.