Opinion
No. 04-0873.
March 16, 2005.
Appeal from the Iowa District Court for Washington County, Michael R. Mullins, Judge.
Daniel Null appeals from the district court ruling that disestablished his paternity to one of two children born during his marriage to Christina Null, and from the provision of the decree dissolving the parties' marriage which awarded physical care of the other child to Christina. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Timothy B. Liechty of Bell Ort, New London, for appellant.
Leslie D. Lamping of Day Meeker Lamping Schlegel, Washington, for appellee Christina Null.
Douglas L. Tindal of Tindal Kitchen, P.L.C., Washington, for appellee Larry Perkins.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
Daniel Null appeals from the district court ruling that disestablished his paternity of Shanea Null, and from the provision of the decree dissolving his marriage to Christina Null which awarded Christina physical care of Shad Null. Daniel asserts the district court erred in disestablishing his paternity of Shanea, and contends he should be awarded the physical care of both children. We affirm in part, reverse in part, and remand both the paternity and dissolution actions for further proceedings.
I. Background Facts and Proceedings.
Daniel and Christina Null were married in the state of Missouri in 1993. At the time of the marriage the parties' son, Shad, was approximately ten months old. Daniel and Christina separated several times during the marriage. Following a January 1999 separation Christina became romantically involved with Larry Perkins, an Iowa resident, and Christina and Shad moved to Iowa. Christina and Perkins separated in July 1999, and Christina moved back to Missouri and into Daniel's home. Daniel, however, lived at his parents' home, located several blocks away.
Shanea Null was born in March 2000. Christina and Perkins reconciled a few months after Shanea's birth, and lived together until January 2003. Daniel had limited involvement with Shad and Shanea during this period of time.
In April 2003, while Daniel was visiting the children in Iowa, Christina was involved in an automobile accident and charged with operating while intoxicated. Daniel took the children and returned to his home in Missouri. A few weeks later Christiana filed a petition in Iowa seeking the dissolution of the parties' marriage.
During August of 2003 blood test results revealed that Daniel is not Shanea's biological father. When Christina's petition for dissolution came on for trial in October 2003, it became apparent that Christina was attempting to disestablish Daniel as Shanea's father. However, none of the procedural requirements for overcoming paternity had been met. The matter was accordingly continued so that Christina could file a separate paternity action under Iowa Code chapter 600B (2003). The court directed that the paternity action was to be tried concurrently with the dissolution of marriage proceeding.
In November 2003 Christina filed a separate action seeking to disestablish Daniel and to establish Larry Perkins, with whom she had again reconciled, as Shanea's biological father. On January 6, 2004, Daniel filed an "Answer, Cross-Claim and Petition to Establish Guardianship" in the paternity proceeding. The filing included two cross-claims against Perkins. Daniel asked the court to terminate Perkins's parental rights and to maintain Daniel as Shanea's established father or, in the alternative, to require Perkins to reimburse Daniel for past expenses incurred for Shanea's benefit. On January 29 Perkins filed his answer to Christina's paternity petition, admitting paternity of Shanea.
The paternity and dissolution actions were consolidated and the two actions came on for trial commencing February 19, 2004. Although Daniel's answer in the paternity action asserted that the court should appoint a guardian ad litem to represent Shanea, neither Daniel, Cristina, nor Perkins actively sought to have a guardian ad litem appointed for the child. In addition, none of the parties questioned the absence of a guardian ad litem when trial began on February 19. When testimony concluded on the first day of trial, the judge raised the issue of whether a guardian ad litem needed to be appointed pursuant to Iowa Code section 600B.41A(3)(d). At that time Christina and Perkins were willing to waive the appointment. Daniel, however, requested that a guardian ad litem be appointed, and noted that the appointment was a statutory requirement.
On February 24, the second day of trial, Perkins filed a reply and supplemental answer denying Daniel's cross-claims. The filing raised, for the first time, Perkins's objection to the termination of his parental rights. Daniel moved to strike the reply and supplemental answer as untimely, procedurally defective, and prejudicial. The court denied the motion. The court also revisited the issue of whether a guardian ad litem needed to be appointed. Christina asserted that Daniel had, by his inaction, waived the requirement for appointment of a guardian ad litem. Daniel responded that the requirement was not subject to waiver. The court reserved ruling on the issue and proceeded to hear evidence.
Following trial, the court entered a ruling in the paternity action that disestablished Daniel as Shanea's father. The court recognized section 600B.41A(3)(d) made the appointment of a guardian ad litem a condition to overcoming Daniel's paternity, but concluded that "in the interests of justice and under the unique facts of this case" appointment of a guardian ad litem would be waived. The ruling further established Perkins as Shanea's father. The court rejected the remainder of Daniel's claims, including his request that Perkins reimburse him for funds previously expended for Shanea's support. The court entered a separate decree which dissolved Daniel and Christina's marriage, and awarded Christina physical care of Shad.
Daniel has appealed from the court's ruling in the paternity action and from the dissolution decree. He contends the paternity action should have been dismissed, and argues he should have been awarded Shanea and Shad's physical care in the dissolution decree. Daniel asserts the district court erred in disestablishing his paternity of Shanea because the court failed to appoint a guardian ad litem for Shanea, as required by the controlling statute. Alternatively, Daniel asserts that even if all the conditions for overcoming his paternity were present, the court should have preserved his paternity of Shanea. Finally, Daniel contends that, if the disestablishment of his paternity is upheld, Perkins should be required to reimburse him for any expenses he incurred for Shanea's benefit. We must assess Daniel's claims without benefit of argument from Christina or Perkins, because neither has filed a responsive brief.
His appeals were consolidated by an order entered August 5, 2004.
II. Scope of Review.
The dissolution of marriage action is an equitable proceeding which we review de novo. Iowa R. App. P. 6.4; Iowa Code § 598.3. In contrast, the paternity action, separately filed under Iowa Code chapter 600B, is reviewed for the correction of errors at law. Callender v. Skiles, 591 N.W.2d 182, 184 (Iowa 1999); but see Dye v. Geiger, 554 N.W.2d 538, 539 (Iowa 1996) (reviewing ancillary issues, such as child support, de novo). The district court's evidentiary rulings are reversed only upon a demonstrated abuse of discretion. McElroy v. State, 637 N.W.2d 488, 493 (Iowa 2001).
III. Paternity Action.
Although Daniel admits genetic testing excludes him as Shanea's biological father, he contends the district court erred in concluding all conditions for overcoming the establishment of paternity had been met. Specifically, he points out a guardian ad litem was never appointed for Shanea, as required by Iowa Code section 600B.41A(3)(d). He asserts this condition cannot be waived by the court.
After discussing Daniel's failure to follow through with the request for the appointment of a guardian ad litem he had made in his answer, the district court concluded that in the interests of justice and under the unique facts of this case, the nature of the evidence and the fact that all three parties had separate legal representation, that appointment of a guardian ad litem would require further delay in final disposition of this case and would result in further expenses to the parties both by trial delay and by payment of an additional attorney, and considering the young age of the child the subject of this action, the interests of justice required waiver of the statutory provision for appointment of a guardian ad litem. This court wants to be clear that appointment of a guardian ad litem as set forth in the statute would have been preferable, but under the circumstances referenced above and the evidence as set forth below, appointment would be waived.
We are sympathetic with the district court's position. However, for the reasons that follow, we do not believe the appointment of a guardian ad item should have been waived.
The legislature has explicitly made the appointment of a guardian ad litem a condition precedent to a finding that paternity should be overcome. See Iowa Code § 600B.41A(3)(d). This requirement is one of six statutory conditions to overcoming the paternity that "must be satisfied by the petitioner." Dye, 554 N.W.2d at 539. Daniel accordingly frames the issue as whether the appointment of a guardian ad litem can ever be waived, even with the consent of all necessary parties. However, in the context of this case we find it unnecessary to decide whether, and under what circumstances, the appointment of a guardian ad litem can be waived. This is because we are not convinced, as was the district court, that the unique circumstances of the case, and the interests of justice, support a waiver of the statutory requirement.
At the time of the Dye decision, there was in fact a seventh statutory condition: a finding by the court that overcoming the establishment of paternity is in the best interest of the child. See Iowa Code § 600B.41A(3)(g) (1995). In 1997 the best interests requirement was eliminated from the provision governing an action to overcome paternity, and a best interests requirement was added to the provision governing the preservation of paternity. See Iowa Code § 600B.41A(6) (1999).
A guardian ad litem is appointed to protect the interests of the child. See In re J.V., 464 N.W.2d 887, 893 (Iowa Ct.App. 1990). As we have previously noted, within the context of a termination of parental rights proceeding, this requires the guardian ad litem to actively advocate for the child's interests:
The guardian ad litem is not designed to be the decision-maker, and is an advocate for the child, not the parents or the State. It simply is not sufficient for a guardian ad litem to sit back, review the record and the arguments, and arrive at a decision. This function is filled ably by the juvenile courts. Neither is it sufficient for a guardian ad litem to be a handmaiden to one of the adversary parties. Usually there will be a limited number of options for which to advocate, such as whether or not to terminate the parent-child relationship, and the guardian ad litem will often have a position consistent with one of the adverse parties and in opposition to another. This, however, must be solely as an advocate for the interests of the children. Otherwise, the guardian ad litem is merely perfunctory, serving only to fulfill arcane, if not empty, requirements of due process.
Id.
In proceedings to overcome and establish paternity the guardian ad litem accomplishes his or her role, in part, by assuring that the biological father of the child is correctly identified, and that the appropriate individual is either established or disestablished as a parent of the child. This assures the child not only a right to support from her biological parent, but also her right to inherit from, and receive other economic benefits upon, his death. These interests may be, but are not necessarily, consistent with the interests of the various adults involved in the paternity proceeding.
Here, while it may be undisputed that Daniel is not Shanea's biological father, the record raises some concerns as to whether Perkins is in fact the child's biological father. While both Christina and Perkins testified that Perkins is Shanea's biological father, there has never been genetic testing to confirm or exclude Perkins as Shanea's father. Perkins admitted that he had a vasectomy several years before Shanea was conceived, but believed the procedure may not have been effective, because a woman he was dating in 1997 became pregnant. He further testified that he "usually" used a condom during intercourse with Christina prior to Shanea's birth. Finally, while Christina and Perkins did have some contact around the time of Shanea's conception, during this same period of time Christina had intercourse with another individual, named Steve.
In addition to the somewhat equivocal evidence regarding Perkins's paternity, we also recognize that under the particular circumstances of this case, where the outcome of the paternity action necessarily impacts the provisions of the parties' dissolution decree, there is a possibility that the adults are driven by interests inconsistent with those of Shanea. If a guardian ad litem had been appointed, he or she could have requested genetic testing of Perkins, and conducted any necessary additional inquiry in the various factual assertions of the parties, thereby protecting Shanea's interest in having her paternity accurately established.
While we appreciate that appointing a guardian ad litem in the middle of trial would have caused some inconvenience and further delayed a proceeding that should be resolved as expeditiously as possible, the record supported an additional delay to allow for the appointment of a guardian ad litem. Accordingly, we must reverse the district court decision to disestablish Daniel and establish Perkins as Shanea's father. We do not, however, find it necessary to dismiss the petition to overcome paternity. Rather, we remand this matter to the district court for the appointment of a guardian ad litem and for such further proceedings as the court deems necessary.
Our decision to remand this matter resolves Daniel's claim that the district court abused its discretion in denying his motion to strike Perkins's reply and supplemental answer, thereby impeding his ability to establish that his paternity of Shanea should be preserved under Iowa Code section 600B.41A(6)(a). Perkins's filing was, in effect, an untimely amendment made without leave of the court, see Iowa R. Civ. P. 1.402, which the district court approved by denying Daniel's motion to strike. The court did not abuse its discretion in allowing this amendment, even though it was made after the beginning of trial, and even if it substantially changed the issues before the court, unless Daniel was prejudiced or unfairly surprised. See Rife v. D.T. Corner, Inc., 641 N.W.2d 761, 767 (Iowa 2002). Although we see no prejudice or unfair surprise accruing to Daniel at the time of the original proceeding, any claim of prejudice or unfair surprise stemming from the late filing will have dissipated by the time the matter comes before the district court upon remand.
Perkins's filing raised, for the first time, an objection to the termination of his parental rights. If the district court had struck the reply and supplemental answer, then Perkins would be deemed to have admitted the allegation in Daniel's cross-claim — that Perkins's parental rights should be terminated. See Iowa R. Civ. P. 1.405(3). Presuming the record adequately demonstrated Perkins was Shanea's biological father, Daniel would have accordingly satisfied the third of three conditions which would allow the district court to preserve his paternity of Shanea, even though genetic testing has excluded him as Shanea's biological father. See Iowa Code § 600B.41(6)(a).
However, in the interest of judicial economy we will address two issues raised by Daniel which may reoccur upon remand. Daniel first asserts his paternity should have been preserved under the equitable parent doctrine. See In re Marriage of Gallagher, 539 N.W.2d 479, 482 (Iowa 1995) (defining doctrine). Daniel cannot prevail on this claim, because the procedure to overcome paternity is strictly statutory. Treimer v. Lett, 587 N.W.2d 622, 624 (Iowa Ct.App. 1998). To the extent Daniel can establish that his paternity should be preserved, he must do so by satisfying the requirements of section 600B.41A(6)(a)(1) through (3).
This leaves us with Daniel's claim that, if Perkins is established as Shanea's father, he has an obligation to reimburse Daniel for past support of Shanea. Daniel's claim is premised on Iowa Code section 600B.4, which creates a general cause of action on behalf of the legal representative of the mother, or on behalf of third persons furnishing support or defraying the reasonable expenses thereof, where paternity has been judicial established . . . or . . . acknowledged by the father. . . .
We agree with the district court that this claim is without merit.
The only evidence Daniel presented in support of his claim for reimbursement was a record of child support payments Daniel made to Christina, pursuant to court order, between 2000 and 2004. The case law is clear that a disestablished father's right to relief from past support obligations is controlled by section 600B.41A, and that the court may not grant relief beyond that which was authorized by the legislature. See State ex rel. Baumgartner v. Wilcox, 532 N.W.2d 774, 777-78 (Iowa 1995). Support obligations following a disestablishment of paternity are specifically addressed in section 600B.41A(4), which provides that the disestablished father will be relieved of only future and past unpaid support obligations. Thus, Daniel has no right to reimbursement for his previously-paid obligations. Wilcox, 532 N.W.2d at 777-78.
IV. Dissolution Proceeding.
In its decree dissolving the parties' marriage, the district court addressed which party should receive Shad's physical care. The parties were, however, given a full and fair opportunity to make a record regarding the physical care of both Shad and Shanea. Moreover, while recognizing that its ruling would decide the physical care of Shad only, the district court clearly gave thoughtful consideration to the parties' history of involvement with both children, as well as the principle that siblings should be separated for only the most compelling reasons. See In re Marriage of Quirk-Edwards, 509 N.W.2d 476, 480 (Iowa 1993).
We see no reason to disagree with the court's decision to grant Christina Shad's physical care. The court made credibility assessments supporting its reasoning and correctly applied the relevant law, rendering a decision that was factually accurate, well reasoned, thoughtful, and sound. If, upon remand, Daniel is again disestablished as Christina's father, the district court's physical care award must stand. We recognize, however, that if upon remand Daniel's paternity of Shanea is preserved, the district court will need to revisit its dissolution decree to provide for the placement of Shanea's physical care. Accordingly, while we affirm the district court's decision to award Christina Shad's physical care, we also remand the dissolution action to the district court so that, in the event it preserves Daniel's paternity, the court may conduct any further proceedings, and enter any further orders, necessitated by the paternity ruling.
While we cannot render a prospective decision on any future order in the dissolution proceeding, we note the fact findings and analysis in the current decree would support placing the physical care of both children with Christina.
V. Conclusion.
Because no guardian ad litem was appointed, we must reverse the district court's ruling in the paternity action to the extent it concluded that Daniel's paternity was overcome and should not be preserved, and that Perkins should be established as Shanea's father. The paternity action is remanded for the appointment of a guardian ad litem, and for such further proceedings as the district court deems necessary. The district court's dissolution decree is affirmed, but the matter is remanded to the district court so that, if Daniel's paternity of Shanea is preserved, the district court may determine whether Christina or Daniel should be awarded Shanea's physical care.
Costs of this appeal are assessed one-half to each party.