Opinion
22-1686
09-27-2023
CHRISTIAN LEE DONOVAN, Plaintiff-Appellant, v. SERENA ROSE THOMPSON, Defendant-Appellee.
Vanessa L. Arzberger of Arzberger Law Office, Mason City, for appellant. Diane Wilson of Iowa Legal Aid, Mason City, for appellee.
Appeal from the Iowa District Court for Cerro Gordo County, Colleen Weiland (Motions) and DeDra Schroeder (Final Order), Judges.
Christian Donovan appeals the district court's dismissal of his petition to establish paternity, custody, physical care, and visitation.
Vanessa L. Arzberger of Arzberger Law Office, Mason City, for appellant.
Diane Wilson of Iowa Legal Aid, Mason City, for appellee.
Considered by Tabor, P.J., Buller, J., and Gamble, S.J.
BULLER, JUDGE
Christian Donovan appeals the dismissal of his chapter 600B (2021) petition concerning paternity, custody, physical care, and visitation for a minor child. Donovan argues he has standing and should be deemed the child's legal father even though a DNA test proved he is not the biological father. In making this claim, Donovan relies in part on a cell-phone photo of an alleged paternity affidavit. Both Donovan and Serena Thompson, the child's mother, request appellate attorney fees. We affirm and remand with directions for the district court to award Thompson reasonable attorney fees, not to exceed $5000.
I. Background Facts and Proceedings
Donovan and Thompson first dated from July to December 2018. When they separated, Thompson had a brief relationship with another man. Thompson and Donovan got back together in April 2019; Thompson was pregnant. Thompson told Donovan he was not the father, though Donovan disputes the details of their conversation.
Thompson and Donovan began living together in July 2019. They exchanged promise rings and had a ceremony with friends but did not legally wed. Thompson gave birth to her child that fall. She did not list a father on the birth certificate or complete a paternity affidavit at the hospital. The child's surname on the birth certificate is listed as "Donovan," but Thompson claimed she only used Donovan's last name because he threatened her.
Donovan supported the family while Thompson was on maternity leave. He continued to help care for the child, particularly when Thompson returned to work.
In early 2021, Donovan and Thompson broke up again but continued to live together. Thompson moved out in May and took the child to Arizona. Thompson claims Donovan told her to move out, while Donovan maintains Thompson walked out without warning.
Two weeks after Thompson left, Donovan petitioned to establish paternity, custody, physical care, and visitation. In June, Donovan claimed he could not locate Thompson, and the district court granted his request to serve her by publication. Thompson did not appear at the temporary-matters hearing in August, and the district court granted Donovan temporary sole legal custody and physical care of the child. Five days after the hearing, Donovan apparently no longer had trouble locating Thompson and had local law enforcement remove the child from Thompson's care.
Two days later, Thompson petitioned for a domestic-abuse order of protection against Donovan. Thompson filled out the form with help from a victim advocate. The advocate suggested that Thompson indicate she and Donovan were both parents of a minor child on the form, since Donovan already had custody and care of the child based on the ex parte temporary-matters order. The district court entered a temporary order of protection, and both parties later agreed to a one-year final order.
Thompson filed a pro se answer to Donovan's paternity petition. She denied his paternity claim and moved for genetic testing. The district court granted the genetic-testing motion and scheduled a temporary-matters hearing for October. Thompson moved to dismiss Donovan's petition for lack of standing. At the October hearing, the court denied the motion to dismiss but ordered genetic testing be completed within thirty days. Several days later, the district court ruled that, based on Donovan's "allegations and the other evidence presented, at this time he can be presumed to be the father of [the child], subject to the subsequent genetic testing." Donovan retained physical care of the child during this time, but the court granted visitation to Thompson.
In January 2022, Thompson moved to compel Donovan to file the genetictesting results because he had delayed well beyond the thirty days. The DNA testing excluded Donovan as the father. Thompson again moved to dismiss, urging Donovan lacked standing. The court denied that motion, finding Donovan should be entitled to present evidence on his claim under section 252A.3 that "he has acknowledged paternity and/or that Thompson has concurred in his admission of paternity."
At the end of the first day of trial in June 2022, the district court indicated it intended to dismiss the action because Donovan was neither the legal nor biological father of the child. But before the court could enter a written ruling, Donovan moved to reopen the record based on a cell-phone photo of an alleged paternity affidavit he claimed to have found after the close of trial.
At the hearing on the motion to reopen the record, Thompson denied signing the affidavit. Two forensic examiners testified that Thompson's purported signature on the affidavit was likely not hers. And the Iowa Vital Records Chief testified that the affidavit was never filed, was not notarized, and was otherwise invalid because some of the information in it did "not match any type of docket or certificate number system" used by state officials.
The district court issued a written ruling dismissing the action. The court found the cell-phone photo of the alleged affidavit lacked "the requisite indicia of reliability or authenticity that would be necessary . . . to reopen the record" or otherwise reconsider its decision. The district court concluded: "Again, the parties were never married, [Donovan] is not on the birth certificate, there is no paternity affidavit signed by both parties, there is no court order establishing paternity, the genetic testing shows [Donovan] is not the father and, therefore, [Donovan's] petition fails."
Donovan appeals.
II. Standard of Review
"Our review of paternity actions under chapter 600B is for errors at law." Callender v. Skiles, 591 N.W.2d 182, 184 (Iowa 1999).
III. Discussion
Donovan contends the district court erred in dismissing his petition to establish paternity, custody, physical care, and visitation. He challenges the district court's conclusions on standing and rejection of the cell-phone photo allegedly depicting a paternity affidavit. Both parties request appellate attorney fees.
A. Standing
Our threshold question is whether Donovan can establish paternity of the child under Iowa law. If he cannot state a claim in support of paternity, he lacks standing to invoke Chapter 600B. See Godfrey v. State, 752 N.W.2d 413, 417 (Iowa 2008) ("Generally, courts refuse to decide disputes presented in a lawsuit when the party asserting an issue is not properly situated to seek an adjudication.").
To satisfy standing, Donovan relies exclusively on Iowa Code chapter 252A, Iowa's "Support of Dependents Law." Iowa Code § 252A.1(1); see id. § 600B.7 ("Proceedings to establish paternity and to compel support by the father may be brought in accordance with the provisions of this chapter. They shall not be exclusive of other proceedings that may be available on principles of law and equity."). "The purpose of [chapter 252A] is to secure support in civil proceedings for dependent spouses, children and poor relatives from persons legally responsible for their support." Id. § 252A.1(2).
The universe of persons who can petition under this chapter is exclusive to "each dependent person[,] . . . a mother or putative father of a dependent," or the State's child support recovery unit. Id. § 252A.2(7). A "putative father" is defined as "a man who is alleged to be or who claims to be the biological father of a child born to a woman to whom the man is not married at the time of the birth of the child." Id. § 252A.2(9).
We, like the district court, understand Donovan's claim to have been that he was the biological father, particularly in light of his concession that he was not the established father and his agreement with Thompson that it was appropriate to proceed to the genetic-testing procedures under section 600B.41. At this stage, Donovan admits genetic testing has determined that he has no biological relation to the child. As a result, he does not qualify as any part of the statutory universe entitled to petition under chapter 252A. Because the General Assembly has not conferred the right to unilaterally petition for paternity under chapter 252A upon persons who wish to be fathers of dependent persons but genetically are not, this ends our analysis. See id. § 252A.3A (setting the requirements to establish paternity by affidavit).
It may seem harsh to find that an involved caretaker like Donovan may potentially never have contact with a loved child again. But that conclusion is compelled by controlling case law and our state's public policy. Iowa does not recognize any version of "equitable parenting," where parent-like rights are recognized in persons who are not biological or legal parents. See In re Ash, 507 N.W.2d 400, 405 (Iowa 1993). As Thompson notes in her appellate brief, this case bears similarities to Ash, where it was
apparent that [the petitioner] loves the child. He treats her like his daughter. He has, since her birth, assumed the responsibilities and-until his visitation was cut off-enjoyed the privileges of fatherhood. Up to the time visitation was interrupted, [the petitioner] and the child unquestionably enjoyed an appropriate, nurturing, father-daughter relationship.Id. at 404. Nonetheless, our supreme court rejected the Ash petitioner's claim, concluding he "ha[d] no legal basis for asserting parental status." Id. So too for Donovan.
We conclude Donovan lacks standing under chapter 252A, and thus relatedly under chapter 600B. See Iowa Code § 600B.8. The district court correctly dismissed the action.
B. The Cell-Phone Photo
Donovan's other challenge concerns the cell-phone photo allegedly depicting a paternity affidavit. It's unclear to us whether Donovan asserts some kind of evidentiary error or only challenges the court's finding that the affidavit was likely fraudulent. To the extent Donovan intended an evidentiary-error challenge, we find it waived for failure to cite legal authority. See Iowa Rs. App. P. 6.903(2)(g)(3); .904(4). And to the extent Donovan instead attempts to relitigate the credibility of the affidavit, we generally defer to the district court's factual determinations, given its advantage in assessing the believability of witnesses and resolving factual disputes. See Markey v. Carney, 705 N.W.2d 13, 20 (Iowa 2005) ("We give weight to the district court's findings of fact, especially with regard to credibility of witnesses." (citation omitted)).
Donovan points us to Wilson v. Jacques, in support of his claim. No. 172001, 2019 WL 2372091 (Iowa Ct. App. June 5, 2019). But we agree with the district court that Wilson doesn't fit here. The father in Wilson was listed on the birth certificate following notarization and submission of the paternity affidavit, and thus had standing as the child's legal father. Id. at *5-6. Even if the incomplete affidavit here was legitimate, it was never notarized or submitted to state authorities as required by statute to establish paternity, and Donovan was never named as the father on the birth certificate. See Iowa Code § 252A.3A(5) (listing requirements for a completed affidavit of paternity). The incomplete affidavit is therefore immaterial to the legal outcome of this case. See id. § 252A.3A(1) ("The paternity of a child born out of wedlock may be legally established by the completion, filing, and registration by the state registrar of an affidavit of paternity only as provided by this section."), (6) ("For the purposes of legal establishment of paternity under this section, paternity is legally established only upon filing of the affidavit with and registration of the affidavit by the state registrar subject to the right of any signatory to rescission pursuant to subsection 12.").
C. Appellate Attorney Fees
Both parties seek appellate attorney fees. Donavan asserts that he "requests appellate attorney fees in this matter, as he has incurred substantial additional fees in this action." This single-sentence argument does not cite legal authority, and we conclude Donovan waived his claim by failing to cite legal authority, though we are also unpersuaded on the merits. Thompson, on the other hand, cites to case law and makes a multi-paragraph argument. Iowa Code section 600B.26 grants us discretion to award the "prevailing party reasonable attorney fees." And we do so here. We find Thompson prevailed on appeal, and we order Donovan to pay reasonable attorney fees, not to exceed $5000, as determined by the district court on remand following a hearing or review of filed fee affidavits. We note Thompson is represented by Iowa Legal Aid and this does not affect our analysis. See Hinde v. Iowa Dist. Ct., 311 N.W.2d 94, 95 (Iowa 1981) (finding error when a district court reduced a fee award because the plaintiff was represented by a legal aid group).
IV. Disposition
We affirm dismissal of the petition and remand with directions for the district court to order Donovan to pay Thompson's reasonable appellate attorney fees, not to exceed $5000, following a hearing or review of filed fee affidavits.
AFFIRMED AND REMANDED WITH DIRECTIONS TO DETERMINE ATTORNEY FEES.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2023).