This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In Re the Marriage of:

Jill Michelle Lelonek, petitioner,



Brian Michael Lelonek,



Brian Michael Lelonek,



Jill Michelle Lelonek, et al.,


Itasca County,


Scott Johnson,


Filed March 2, 1999


Shumaker, Judge

Itasca County District Court

File No. F2-93-1301

Timothy L. Aldrich, Legal Aid Service of NE MN, 204 First Avenue N.W., Suite 7, Grand Rapids, MN 55744 (for appellant Jill Michelle Lelonek)

James Andrew Borland, Sellman Law Offices, 1907 Third Avenue East, Suite 1, P.O. Box 37, Hibbing, MN 55746 (for respondent Brian Michael Lelonek)

John J. Muhar, Itasca County Attorney, Heidi M. Pertlicek, Assistant County Attorney, Itasca County Courthouse, 123 N.E. Fourth Street, Grand Rapids, MN 55744 (Itasca County)

Considered and decided by Anderson, Presiding Judge, Kalitowski, Judge, and Shumaker, Judge.



The trial court amended the parties' judgment and decree of marriage dissolution on the ground that appellant wife had committed fraud on the court concerning the paternity of a child born during the marriage, and deleted all determinations of and references to respondent husband's paternity obligations. Appellant challenges the propriety of the amendment. We affirm.


Appellant Jill Lelonek and respondent Brian Lelonek were married on December 22, 1990. In 1992, they lived in Germany, where respondent was stationed with the army. Beginning approximately February 14, 1992, until April 5, 1992, appellant had sexual intercourse with Scott Johnson at various times. During that period, she also had intercourse with respondent "a couple of times." In late March 1992, appellant learned that she was pregnant. She gave birth to a child on October 13, 1992. The Leloneks dissolved their marriage on January 24, 1994.

No one raised the issue of the paternity of the child prior to the dissolution of the parties' marriage. After the dissolution, respondent came to believe that he was not the child's father and he commenced an action to establish his nonpaternity in July 1995. Blood tests on February 20, 1996, excluded respondent as the biological father of the child.

On January 22, 1997, respondent moved to vacate the portions of the dissolution decree pertaining to paternity and child support. On September 3, 1997, the trial court issued an order providing:

The matter shall be set for an evidentiary hearing to determine whether petitioner's decree of dissolution as it relates to paternity should be amended, including specifically issues of child support.

On March 10, 1998, the court conducted an evidentiary hearing, combining the motion to amend the decree in the dissolution proceeding with respondent's pending action to establish the nonexistence of a father-child relationship. See Minn. Stat. § 257.57, subd. 1(b) (1998). The court issued its order on June 17, 1998, finding that respondent was not the father of the child; that appellant had committed fraud on the court by not disclosing her sexual relationship with Scott Johnson prior to the parties' dissolution; and that respondent was entitled to an amendment of the dissolution decree deleting any paternity or child support provision.

On appeal, appellant argues that the trial court was barred by collateral estoppel and res judicata from amending the decree, that the court erred in finding that appellant had committed fraud, and that the court erred by failing to consider the best interests of the child.


We begin by addressing two significant misunderstandings held by appellant. First, appellant states that the trial court "made no finding that Ms. Lelonek committed fraud upon the court * * *." In the memorandum attached to its order, the court defines "fraud on the court" and then explains how appellant's acts and omissions satisfied the definition. The court specifically provided that the memorandum is part of the order. Minn. R. Civ. P. 52.01 (it is sufficient if findings and conclusions of law are stated in an accompanying memorandum). The trial court clearly found that appellant had committed fraud on the court.

Appellant's second misunderstanding is that the "court did not conduct an evidentiary hearing on the issue of paternity * * *" of the child. The record demonstrates that the dissolution proceeding and the "nonpaternity" action were combined for evidentiary hearing on March 10, 1998. At the outset of the hearing, the judge stated:

Actually we have two matters that are shown on today's calendar that are related, the marriage of Jill Michelle Lelonek and Brian Michael Lelonek, and the other family file which is 31-F2-95-50499, and that's Brian Michael Lelonek versus Jill Michelle Lelonek.

In its order setting the hearing, the court stated that it would determine whether the decree "as it relates to paternity" should be amended. Much of the hearing was focused on paternity facts, such as dates of sexual intercourse, use of birth control, and blood test results. Additionally, the paternity issue was necessarily foundational for any other ruling by the court. If respondent were not excluded as father, there could be no fraud. There can be no fraud as to representations that are true. See Franklin Theatre Corp. v. Minneapolis, 293 Minn. 519, 522, 198 N.W.2d 558, 560 (1972) (fraudulent misrepresentation must be false, since truth is absolute defense). Thus, respondent's nonpaternity had to be determined before the fraud issue even became relevant. Finally, we note that appellant testified at the hearing that in responses to discovery she admitted that respondent was not the child's father and that she based her admission on the blood test excluding him. The record demonstrates that the trial court did in fact conduct an evidentiary hearing on the issue of paternity and that the parties were not precluded in any way from litigating that issue as fully as they desired.

The trial court made factual findings as to respondent's nonpaternity of the child and appellant's fraudulent conduct, and we will not reverse those findings unless they were clearly erroneous. In re Welfare of D.T.J., 554 N.W.2d 104, 107 (Minn. App. 1996).

Based upon the findings of fact, the trial court exercised its discretion to vacate portions of the parties' dissolution decree. We will not reverse absent an abuse of that discretion. Maranda v. Maranda, 449 N.W.2d 158, 164 (Minn. 1989) (trial court's determination of whether or not to vacate decree will not be reversed except for abuse of discretion).

Nonpaternity and Fraud

The undisputed evidence at the hearing revealed that appellant began having sexual intercourse with Scott Johnson approximately February 14, 1992; that she had intercourse more frequently with Johnson than she did with respondent; that a blood test excluded respondent from the possibility of paternity of the child; that the child was born October 13, 1992; and that, in discovery, appellant, who was the defendant in the nonpaternity action, stated:

The defendant answers Brian Michael Lelonek is not the father of Alex Michael Lelonek, and that Scott Johnson was the only other person that defendant, Jill Michelle Lelonek, had sexual relations with other than plaintiff. At this time no blood testing has been accomplished on Scott Johnson to confirm that he is or is not the father of Alex Michael Lelonek.

Some of the evidence was in dispute. Appellant testified that her pregnancy was not a full nine months long, that she and Johnson used condoms, and that an army doctor told her that, based on the timing of her pregnancy, Johnson could not possibly be the father.

"[F]raud on the court must be an intentional course of material misrepresentation or nondisclosure, having the result of misleading the court * * *." Maranda, 449 N.W.2d at 165. Maranda also held:

In a stipulated marriage dissolution, if one party defrauds the other, he or she necessarily defrauds the court which sits as a third party to the stipulation.


Under appellant's version of the facts, Johnson's use of a condom, the likely date of conception, and the doctor's statement about Johnson's nonpaternity led her reasonably to conclude that respondent was the father of her child. If her version is true, she committed no fraud on the court by failing to disclose her sexual relationship with Johnson prior to the dissolution. The trial court is in a unique position to judge the credibility of witnesses and we must defer to that judgment. In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn. 1995).

Various facts elicited at the hearing could have led the court to doubt appellant's veracity. In a paternity information form that appellant completed for the county in the fall of 1995 or winter of 1996, she listed Scott Douglas Johnson as the father of her child, but in her answers to interrogatories she denied having been with any other man during the period of likely conception. On the paternity form, she gave information about Johnson's parents, but in answers to interrogatories she said she did not know who they were. She stated on the paternity form that she and Johnson had not used any form of birth control. In her testimony at the hearing, she stated that she considered condoms as protection from disease rather than birth control devices. In discovery, she admitted that respondent was not the father, but in her testimony she said that she did not accept the blood test as accurate. Notably, she never at any time requested additional blood testing.

In its memorandum of June 17, 1998, the trial court refers to appellant's lack of credibility; notes that even by her own testimony as to the duration of her pregnancy she likely conceived at about the time she began having sex with Johnson; and states that her concealment of the relationship with Johnson was "a plan to influence the court improperly * * *."

The testimonial and blood-test evidence support a finding of respondent's nonpaternity. The countervailing evidence was substantially impeached. Considering appellant's lack of credibility as significant, the trial court could reasonably infer that appellant engaged in an intentional scheme to withhold from respondent and the court information that would call the paternity of the child into question. We see no indication that the trial court's findings as to respondent's nonpaternity and appellant's fraud were clearly erroneous. See In re Welfare of A.R.G.-B., 551 N.W.2d 256, 261 (Minn. App. 1996) (stating "evidence and its reasonable inferences must be viewed in the light most favorable to the prevailing party.")

Res Judicata and Collateral Estoppel

As a general proposition, a paternity issue raised and decided in a marriage dissolution proceeding is res judicata. State ex rel Ondracek v. Blohm, 363 N.W.2d 113, 115 (Minn. App. 1985). But res judicata does not preclude the reopening of the paternity determination when that determination has been a product of fraud:

A divorced man challenging a paternity finding pursuant to a dissolution decree is not without recourse. He may move to vacate or amend the decree on grounds of mistake, newly discovered evidence or fraud and misrepresentation by the adverse party.

Id. Additionally, even the usual time limits for a motion to reopen because of alleged fraud are not applied if there is blood-test evidence of nonpaternity. Id.; Wessels v. Swenson, 289 N.W.2d 469, 470 (Minn. 1979).

Best Interests of Child

Although a child's best interests are always of vital concern to the trial and appellate courts of this state, it is doubtful that the formalistic standard applies to these peculiar facts. The cases appellant cites for the contrary notion are paternity cases involving conflicting paternity presumptions. See In re Paternity of B.J.H., 573 N.W.2d 99 (Minn. App. 1998). On this record there are no conflicting presumptions in this case.

Assuming that the standard applies, however, the trial court did in fact consider the child's best interests and determined that respondent has neither developed nor intends to develop any relationship with the child. The record discloses that respondent has had no contact with the child since July 1995. The court found that the child had derived no emotional benefit from his relationship with respondent and that forced contact between the child and respondent would not serve the child's interests. We find no abuse of discretion in this determination.