State Ex Rel. Sanders v. Sauer

Original Proceeding in Prohibition

STEPHEN N. LIMBAUGH, JR., Judge.

Relator, the prosecuting attorney of Jackson County, seeks a writ of prohibition preventing respondent from ordering a custodial parent and child to submit to genetic blood testing in a criminal nonsupport proceeding. This Court granted a preliminary writ, which is now made absolute. Mo. Const, art. V, sec. 4.

The facts of this case are not in dispute. In 1990, the Division of Family Services filed a “Petition for Declaration of Paternity” against Montae Perkins under the Uniform Parentage Act (UPA), secs. 210.817-.852, RSMo 1987. In that proceeding, Perkins signed an entry of appearance, waiver of service, and a “Stipulation Regarding Blood Tests,” in which he agreed to submit to blood testing to determine paternity. Perkins was notified of scheduled blood tests on four different occasions spanning eight months, but he failed to appear for any of the tests. Nor did he ever file an answer to the petition. On October 21, 1991, the court entered a default judgment declaring Perkins to be the father of the minor child. Perkins made no effort to set aside the default judgment or otherwise appeal.

On July 14, 2004, the relator charged Perkins with criminal nonsupport, a class A misdemeanor, alleging failure to provide legally obligated adequate support for his minor child, without good cause, between February 1, 2004, and June 80, 2004. On April 12, 2005, Perkins filed a “Motion for Disclosure of DNA of Custodial Parent and her Child for Good Cause Shown Pursuant to Supreme Court Rule 25.04.” Respondent sustained the motion and ordered the state to produce the custodial parent and child for DNA testing. Relator then filed the petition for writ of prohibition that is the subject of this action. Prohibition is the proper remedy “when a trial court makes an order in discovery that is an abuse of discretion.” State ex rel. Plank v. Koehr, 831 S.W.2d 926, 927-28 (Mo. banc 1992).

The criminal nonsupport statute, section 568.040, RSMo 2000, states in pertinent part:

[A] parent commits the crime of nonsupport if such parent knowingly fails to provide, without good cause, adequate support which such parent is legally obligated to provide for his child or stepchild who is not otherwise emancipated by operation of law....

(1) “Child” means any biological or adoptive child, or any child legitimated by legal process, or any child whose relationship to the defendant has been determined, by a court of law in a proceeding for dissolution or legal separation, to be that of child to parent, (emphasis added).

In the underlying prosecution, relator alleges that the child in question was Perkins’ child because she was “legitimated by legal process.” That phrase has no special definition under section 568.040, but it is clear that under the UPA, the 1990 proceedings involving the petition for declaration of paternity and the resulting judgment constituted a “legal process” that “legitimated” the child. To “legitimate” means “to make lawful; to confer legitimacy; e.g., to place a child born before marriage on the legal footing of those born in lawful wedlock.” Black’s Law DictionaRy 901 (6th ed. 1990). This was established by the judicial determination of the “parent and child relationship,” a term defined in section 210.817(4) as “the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations_” In other words, establishing the parent and child relationship operates to establish the legal relationship between them and does so to the same extent as if the child was born to or adopted by the parents. That is the very essence of legitimation. Indeed, that conclusion gives full effect to the mandate of section 210.841.1, which provides, “The judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes.”

Perkins does not contest that the child was “legitimated by legal process” under the UPA, but he argues instead that in a criminal prosecution for nonsupport the determination that the child was “legitimated by legal process” must be made on proof beyond a reasonable doubt, not proof that is based on a default judgment in a civil case. Apparently, Perkins demands proof beyond a reasonable doubt that Perkins is, in fact, the biological father of the child, and that in order to controvert the state’s proof on that point, he should be afforded the DNA testing that he now seeks. This argument, however, is based on a misperception of the elements of the crime.

The element in question is paternity. It is not that the defendant is the biological father of the child that matters, but whether the defendant is the father of the child because the child was “legitimated by legal process.” As such, the state need only prove beyond a reasonable doubt that a judgment was entered establishing that the child was “legitimated by legal process;” whether the defendant is truly the biological father of the child is irrelevant. See State ex rel. Dally v. Copeland, 986 S.W.2d 943 (Mo.App.1999) (applying same elements analysis under section 568.040 to civil judgment of paternity incident to a decree of dissolution); State ex rel. State of Missouri v. Campbell, 936 S.W.2d 585 (Mo.App.1996) (applying same analysis).

Furthermore, this case is no different than a number of other situations in which an individual is subject to criminal liability for violation of a civil order. See e.g. 302.321, RSMo (driving while license or driving privilege is canceled, suspended, or revoked is a class A misdemeanor) and 455.085, RSMo (violation of the terms of a civil protective order is a class A misdemeanor). In those cases, as here, the state need only prove the existence of the civil order and its violation beyond a reasonable doubt in order to convict the defendant; not that the underlying facts giving rise to the civil order are true beyond a reasonable doubt. See State v. Schleiermacher, 924 S.W.2d 269, 273 (Mo. banc 1996).

Ultimately, Perkins’ current inability to contest paternity is his own fault. He has blatantly ignored the procedures established by the General Assembly to contest paternity early on, and now, years later, he asks the Court to devise a new procedure to suit his convenience. This the Court will not do, especially where, as here, the result would be to de-legitimize a child.

Under these circumstances, this Court holds that it was an abuse of discretion to order DNA testing. The preliminary writ is made absolute.

STITH, PRICE and RUSSELL, JJ„ concur. WOLFF, C.J., dissents in separate opinion filed; WHITE, J., concurs in opinion of WOLFF, C. J. WHITE, J., dissents in separate opinion filed; TEITELMAJST, J., concurs in opinion of WHITE, J.