This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-01-1044

 

State of Minnesota Regarding the Parties:

Patrice L. Ford,
Respondent,

vs.

Esmail Mostaghimi,
Appellant.

 

Filed January 15, 2002

Reversed and remanded; motion granted

Crippen, Judge

 

Lincoln County District Court

File No. F300193

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Michael W. Cable, Lincoln County Attorney, William J. Toulouse, Assistant County Attorney, 109 South Fourth Street, P.O. Box 1235, Marshall, MN 56258 (for respondent)

 

Gary A. Debele, Walling & Berg, P.A., 121 South Eighth Street, Suite 1550, Minneapolis, MN 55402 (for appellant)

 

            Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

Appellant challenges the trial court’s order that he pay support for the child of his former wife, alleging that he is not the child’s father and that no paternity action was ever commenced.  Because appellant is entitled to be heard on his dispute of paternity before being compelled to pay support, especially when no one suggests that he is the child’s biological father, we reverse and remand to permit a determination of whether appellant is the child’s father.  We need not address appellant’s res judicata argument, but we find merit in appellant’s request for attorney fees. 

FACTS

Appellant Esmail Mostaghimi and respondent Patrice Ford were married in 1984, and respondent gave birth to A.F. in 1986.  Respondent initially filed for divorce in Hennepin County in 1986, alleging that “[t]he parties hereto have no living issue of their marriage” and stipulating that “Petitioner hereby acknowledges that Respondent is not the father of her unborn child.”  Although that divorce was never finalized, respondent successfully filed for divorce in 1988 in Lyon County, petitioning that

[t]here have been no issue of the parties nor children adopted and petitioner is not now pregnant.  Petitioner has one child, [naming A.F.], who is not the issue of respondent; said child will not be directly affected by this proceeding.

 

The parties stipulated that

[p]etitioner is not now pregnant, and since there have been no issue of the parties nor children adopted during the term of this marriage, no provision need be made for child support, custody or visitation.

 

And the final divorce decree asserted that “[t]here have been no issue of the parties nor is petitioner pregnant with a child or children fathered by respondent.”  In 1995, respondent brought a paternity action in California against the child’s alleged biological father, claiming that this man was A.F.’s real father, but the court dismissed the action.  Finally, in April 2000, respondent sought in Minnesota proceedings to submit the alleged biological father to DNA testing, but the trial court dismissed the claim.[1]

In September 2000, Lincoln County served appellant with a complaint for child support.  At oral argument before this court, the county acknowledged resting its claim against appellant entirely on the presumption of parentage and without disputing the factual assertion that appellant is not the child’s biological father.  Lincoln County asserts that the pursuit of these proceedings arises from its defeat in attempting to establish parentage of the biological father and its desire, as an alternative, to obtain a support award based upon a legal presumption.  Respondent Patrice Ford has repeatedly disclaimed the existence of appellant’s parenthood and instead has asserted that the man pursued in the parentage case is her child’s real father. 

Appellant moved to dismiss the complaint based on a res judicata analysis and requested attorney fees.  In January 2001, the trial court ruled that the divorce decree was not a final judgment, paternity was not closely examined, and thus collateral estoppel did not apply.  In June 2001, the child support magistrate ordered appellant to pay child and medical support for A.F. 

D E C I S I O N

 

1.

 

A man is presumed to be the biological father of a child if he and the child’s biological mother were married when the child was born.  Minn. Stat. § 257.55, subd. 1(a) (2000).  Only clear and convincing evidence will rebut a presumption of paternity.  Id., subd. 2 (2000).  A man presumed to be the child’s father may bring an action to declare the nonexistence of the father-child relationship no later than three years after the child’s birth.  Minn. Stat. § 257.57, subd. 1(b) (2000).  But the statute of limitations does not bar a presumed father from denying paternity as a defense to a child support action.  Reynolds v. Reynolds, 458 N.W.2d 103, 105 (Minn. 1990).  This court reviews de novo a trial court’s interpretation of the Minnesota Parentage Act.  In re C.M.G., 516 N.W.2d 555, 558 (Minn. App. 1994). 

Appellant argues that (1) the trial court should have permitted him to contest paternity before ordering him to pay child and medical support; (2) the statutory presumption of paternity is insufficient to uphold the support order; and (3) he is not time barred from denying paternity.  There is merit in appellant’s arguments.

            A putative father has a right to a paternity hearing before having to pay child support when the divorce complaint makes no allegation that he is the child’s father, the stipulation is silent as to children, and the divorce decree finds no issue of the marriage.  Mund v. Mund, 252 Minn. 442, 448, 90 N.W.2d 309, 314 (Minn. 1958).  In Mund, (1) findings in the judgment stated only the absence of living issue of the marriage; (2) the complaint similarly recited only (in language the supreme court found to be “equivocal”) that, although petitioner had a child in her custody, “there are no living issue of said marriage”; (3) the stipulation was silent on the matter of issue of the children; and (4) the child was not mentioned in either the verified complaint or the stipulation.  Id. at 444-47, 90 N.W.2d at 311-13.  Almost six years after the divorce, plaintiff produced a birth certificate asserting that defendant-husband was the child’s father, petitioned to amend the findings to show that the marriage produced one child, and asked the court for a child support order.  Id. at 444-45, 90 N.W.2d at 312.  She argued that she did not know that the court previously found the marriage without issue.  Id. at 445, 90 N.W.2d at 312.  The supreme court held that the presumption of legitimacy cannot deprive a putative father of a right to contest paternity, especially when the divorce complaint made no definite allegation that defendant was the father, the stipulation did not mention the child, the plaintiff and the guardian ad litem had accepted that finding, and the court found that the marriage produced no children.  Id. at 448, 90 N.W.2d at 314.

And although one cannot initiate an action to declare the nonexistence of paternity after the three-year statute of limitations has expired,[2] the expiration of the statute of limitations does not bar a presumed father from denying paternity when he does so purely as a defense to an action for child support.  Reynolds, 458 N.W.2d at 105.  When support is sought,

[e]ven if the right to bring an action for a declaration of the nonexistence of the father and child relationship presumed under section 257.55, subd. 1, clause (a), (b), or (c) has been foreclosed by the lapse of time, nothing in the Parentage Act either precludes a presumed father from denying paternity or obstructs the disclosure of the true facts of parentage.

 

Id. 

Lincoln County contends that (1) appellant is the father under the statutory presumption; (2) appellant has not rebutted the presumption by clear and convincing evidence; and (3) the presumption is conclusive because appellant did not bring an action to declare the nonexistence of paternity within three years.  These arguments are contrary to established law. 

As in Mund, appellant’s divorce decree states that the marriage produced no children.  Moreover, respondent admitted this in her divorce petition and stipulation.  In fact, respondent explicitly named her child in the divorce petition and stated that appellant was not the father of that child.  And there is no assertion that A.F.’s birth certificate listed appellant as the father.  In addition, respondent asserted in the failed paternity suit that another man was her daughter’s father.  Indeed, all parties agree that appellant is not the biological father of the child.  Under these circumstances, appellant should be granted a paternity hearing.[3] 

Contrary to what Lincoln County argues, appellant has not brought an action to deny paternity.  Rather, as in Reynolds, appellant denies paternity as a defense to paying child support pursuant to the Lincoln County complaint.[4]  And contrary to the county’s arguments, whether the putative father explicitly denied paternity in the divorce proceeding is not relevant to the holding in Reynolds.  Respondent’s divorce petition admitted that appellant was not the father of her child, whom she mentioned by name, and the divorce stipulation and decree stated that the marriage produced no issue.  Moreover, respondent filed a paternity suit against another man.  Until now, appellant has had no reason to file an action to declare the nonexistence of paternity.  The statute of limitations does not preclude appellant from claiming, as a defense, that he is not the child’s father. 

2.

            Minn. Stat. § 518.14, subd. 1 (2000), provides for awarding attorney fees against “a party who unreasonably contributes to the length or expense” of the proceeding.  Minn. Stat. § 549.211, subd. 3 (2000), similarly provides for sanction-based attorney fees in any civil action.  The decision to award statutory attorney fees for frivolous claims rests within this court’s broad discretion.  Leonard v. Northwest Airlines, Inc., 605 N.W.2d 425, 433 (Minn. App. 2000), review denied (Minn. Apr. 18, 2000). 

            Lincoln County has proceeded on an assumption that it could disregard the biological facts in this case, despite respondent’s prior assertions that appellant is not the father of her child.  Significantly, it has forgone an appeal of a decision preventing further proceedings that were based on evidence as to the identity of the biological father.  The county has, as a result, taxed appellant to respond to a matter that rests solely on a legal presumption.  Most importantly, the assertion has been made with insistence, erroneous as a matter of law, that appellant was not entitled to a hearing to assert the biological facts.  Under these circumstances, we find that appellant deserves his requested attorney fees, pursuant to either Minn. Stat. § 518.14 or § 549.211.  We reverse the trial court’s denial of an award of fees, with instructions to the court to award the fees that appellant has incurred, and we grant appellant’s motions to recover fees incurred on appeal.

            Reversed and remanded; motion granted.

 



[1] That court held that (a) appellant was presumptively the father of A.F. under Minn. Stat. § 257.55, subd. 1(a) (2000); (b) paternity was not properly litigated during the divorce; and (c) the statute of limitations bars an action for denying paternity.  Lincoln County elected against appealing this decision. 

[2]Minn. Stat. § 257.57, subd. 1(b) (2000); Pierce v. Pierce, 374 N.W.2d 450, 452 (Minn. App. 1985), review denied (Minn. Nov. 4, 1985). 

[3] Although in remanding for a paternity hearing we need not reach appellant’s res judicata argument, we observe the strength of this additional assertion.  Unlike the circumstances in Mund,where it was determined that the issue was not res judicata, respondent’s divorce petition explicitly states that appellant is not the father of her child, and the divorce stipulation and decree both state that the marriage produced no children. 

[4] The court in Reynolds pointed out the policy against a statutory bar on denying paternity as a defense: “it would be against public policy because in cases where a married woman becomes pregnant by someone other than her husband it would encourage the husband to commence either an action to dissolve the marriage or an action to declare himself not to be the father.”  458 N.W.2d at 104.