This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
Erin Leann McGinnis and County
Marc Byron Wensell,
David Floyd Haley,
Filed September 10, 1996
Affirmed; Motion Denied
Olmsted County District Court
File No. F9912489
Raymond F. Schmitz, Olmsted County Attorney, Kathleen A. Needham, Assistant County Attorney, Olmsted County Government Center, 151 Fourth Street S.E., Rochester, MN 55904-3710 (for Respondents McGinnis and Olmsted County)
Marc Byron Wensell, 9136 Edgewood Drive, Gaithersburg, MD 20877 (Pro Se Respondent)
Ruth Ann McCaleb, McCaleb Law Office, 1002 North Broadway, Rochester, MN 55906 (for Appellant Haley)
Steven C. Youngquist, 307 East Center Street, Rochester, MN 55904 (for Guardian Ad Litem)
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
This appeal in a paternity action challenges the trial court's determination that David Haley is the father of V.A.W. Because considerations of logic and policy support the trial court's resolution of conflicting presumptions of paternity, we affirm.
Erin McGinnis and Marc Wensell married in February 1989, separated in September 1989, and dissolved their marriage in June 1991. McGinnis gave birth to V.A.W. on January1991. Wensell was named as V.A.W.'s father on the birth certificate, but McGinnis later denied that Wensell was the father, and the dissolution decree reserved determination of V.A.W.'s paternity. Wensell wrote a letter to the dissolution court indicating he intended to assert paternity.
McGinnis identified David Haley as V.A.W.'s father. Haley does not dispute that he and McGinnis lived together and had a sexual relationship during the period of V.A.W.'s conception. The relationship ended when Haley moved to Wisconsin in late April 1990. The results of genetic testing conducted in July 1991 show a 99.88 percent probability that Haley is V.A.W.'s father.
McGinnis and Olmsted County brought this paternity action naming both Wensell and Haley as defendants. Wensell has made no appearance but submitted a letter stating that he is not V.A.W.'s father. The remaining parties agreed to submit the paternity determination on stipulated facts.
The stipulated facts include an affidavit from an assistant Olmsted County attorney that the county last had contact with Wensell in 1993 when he was incarcerated in a Maryland prison. Wensell has refused to participate in genetic testing, and the county cannot locate him. Haley was ordered to pay temporary child support in April 1992. In 1996 the district court reduced the support amount after Haley's injuries from a car accident limited his ability to work.
D E C I S I O N
The Minnesota Parentage Act is founded on presumptions of paternity that are not conclusive of paternity, but rather create a functional set of rules that point to a likely father. In re Welfare of C.M.G., 516 N.W.2d 555, 558 (Minn. App. 1994). One rule creates a presumption that Wensell is V.A.W.'s father because V.A.W. was born during Wensell's marriage to McGinnis. See Minn. Stat. § 257.55, subd. 1(a) (Supp. 1995). Haley is also presumed to be V.A.W.'s father because the evidence of statistical probability of paternity based on genetic testing shows a likelihood of 99.88 percent that Haley is the father. See id., subd. 1(f).
The parentage act does not indicate a general preference for one presumption over another. Kelly v. Cataldo, 488 N.W.2d 822, 826-27 (Minn. App. 1992), review denied (Minn. Sept. 15, 1992). Instead, the statute directs the court to resolve unrebutted and conflicting presumptions by relying on the presumption "which on the facts is founded on the weightier considerations of policy and logic." Minn. Stat. §subd.(1994). A child's best interests are a valid policy factor in resolving a conflict between competing paternity presumptions. C.M.G., 516 N.W.2d at 560. "When determining the controlling presumption, the court must examine the particular facts of each case." Id. at 561.
The district court found that it would be in V.A.W.'s best interests to establish that Haley is the father, because (1) Wensell has not demonstrated any interest in having a relationship with V.A.W. and has not supported her, (2) Haley has shown interest in V.A.W. by visits after the child's birth and is financially able to support V.A.W., and (3) a determination that Haley is the father will not threaten V.A.W.'s family unit because the marriage between Wensell and McGinnis has been dissolved. Haley argues the record does not support the trial court's findings that Wensell has not made any attempt to contact or support V.A.W., that Haley has visited V.A.W., and that Haley is financially able to support V.A.W.
A district court's finding of fact, "whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous." Minn. R. Civ. P. 52.01. Clearly erroneous means "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole." Northern States Power Co. v. Lyon Food Prods., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975) (citation omitted).
Wensell's letter submitted in the paternity action shows his intent to abandon any prior claim to paternity of V.A.W. McGinnis and Wensell separated more than a year prior to V.A.W.'s birth, and there is nothing in the record to indicate that Wensell ever visited or supported V.A.W. It is undisputed that Wensell was incarcerated out of state and that his present location is unknown. The record as a whole supports the district court's finding that Wensell has not had and does not intend to have any contacts with V.A.W.
The only reference in the record to Haley's visitation with V.A.W. is McGinnis's May1994 pretrial statement indicating that Haley visited the child over a four-month period in 1992. There is no evidence of more recent visits between Haley and V.A.W. Because neither presumed father has a paternal relationship with V.A.W., this factor is neutral in determining V.A.W.'s best interests.
Although Haley's injuries from the automobile accident have hampered his efforts to find employment, there is no showing that Haley is permanently disabled. Haley has supported V.A.W. in the past, and does not challenge the amount of his current child support obligation. The record supports the district court's finding that Haley has the ability to support V.A.W. financially.
Haley argues that the presumption for Wensell's paternity should control to protect the sanctity of the marital relationship and to prevent V.A.W. from suffering the stigma of nonmarital parentage. But adjudicating Haley as V.A.W.'s father will not threaten V.A.W.'s family unit because Wensell's marriage to McGinnis has been dissolved, and Wensell, McGinnis, and V.A.W. never lived together as a family.
Blood testing generally is the most accurate and reliable proof of paternity. Benson v. LaBatte, 288 N.W.2d 684, 686 (Minn. 1979). The potential stigma of nonmarital parentage does not outweigh the highly persuasive genetic evidence that Haley is V.A.W.'s natural father, and the advantage to V.A.W. of having a father whose location is known and who is able to contribute to her support. Because a determination that Haley is the father is in V.A.W.'s best interests, the district court did not err in resolving the conflict between the competing paternity presumptions.
In a pretrial statement, McGinnis indicated that Haley visited V.A.W. over a four-month period in 1992. The pretrial statement was not included as an attachment to the parties' stipulated facts. Haley moves to strike the statement on the ground that it was not included in the stipulated facts. Although the parties agreed to certain facts, they did not agree to limit the record on appeal. Cf. Minn. R. Civ. App. P. 110.04 ("In lieu of the record,parties may prepare and sign a statement of the recordforth only the facts averred and proved or sought to be proved which are essential to a decision of the issues presented."). Because the pretrial statement was filed in the district court, it is part of the record on appeal. See Minn. R. Civ. App. P. 110.01 (the papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases). The motion to strike is denied.
Affirmed; motion denied.