Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 04FL100086, Julee Robinson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Law Office of Marilyn M. Smith and Marilyn M. Smith for Defendant and Appellant.
Bill Lockyer, Attorney General, Thomas R. Yanger, Assistant Attorney General, Paul Reynaga and Mary Dahlberg, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
Kevin Michael Hayes appeals from the trial court’s order determining he is the father of a child he has never met, Kimberly M., now age 21, who was born and raised in Sweden. At the request of Sweden’s welfare agency, the Swedish Social Insurance Office (SSIO), the Orange County Department of Child Support Services (the Department) filed a complaint against Hayes to establish paternity and order support for Kimberly, a minor child by virtue of her school enrollment. The complaint, filed in January 2004, sought child support dating from birth through the child’s upcoming 19th birthday, in mid-2005.
Hayes contends the trial court erred by denying his request for genetic testing. He also argues due process precludes the trial court from determining parentage based only on his signed paternity acknowledgment, which he executed at the Swedish consulate in Ohio in 1987. He contends relying on the acknowledgment to establish paternity violates due process because a consulate official assured him the purpose of the form was only to secure Swedish welfare benefits for an acquaintance and her child, and he was not advised signing the form would render him liable for child support or that he was forfeiting his right to a trial on the question of paternity, which he disputed. Finally, Hayes asserts Sweden and the Department are estopped from, or have waived, opposition to genetic testing because they did not oppose testing (which did not occur) in an earlier support action they abandoned.
We need not reach Hayes’s latter arguments because we conclude due process requires the trial court to examine whether the acknowledgment of paternity that the Swedish consulate obtained from Hayes was voluntary, knowing, and intelligent. Following our Supreme Court’s example in County of Los Angeles v. Soto (1984) 35 Cal.3d 483 (Soto), we remand the matter for the trial court to determine: (1) whether Hayes was aware the potential consequences of signing the form included entry of a judgment of paternity rendering him liable for child support without a trial on the question, and, if not, (2) whether he would have executed the acknowledgment had he known this.
I
FACTUAL AND PROCEDURAL BACKGROUND
Hayes met Ann E. in Cincinnati, Ohio, in 1985, but she soon moved back to her native Sweden and, unbeknownst to Hayes, gave birth to Kimberly in 1986. In January 1987, Swedish welfare authorities contacted Hayes and informed him Ann had named him as Kimberly’s father. Hayes signed, on a preprinted standard form, an “Acknowledgement” of paternity, witnessed by his brother and his brother’s friend, at the Swedish Consulate in Cincinnati on January 12, 1987. According to Hayes, he informed a consulate official he did not believe he was the father and he only signed the form because the official assured him it was necessary for the mother to receive health and welfare benefits in Sweden and that no personal liability would attach. According to Hayes, the official failed to inform him of the potential support and inheritance obligations that might result under Swedish law and also failed to inform him of his right to challenge paternity, including the right to trial, to subpoena other potential fathers, and to genetic testing.
On November 9, 1995, acting on SSIO’s request, the Department filed a child support petition against Hayes. Hayes answered, contending, “I have no biological children,” and the Department moved for judgment. The Department now contends it obtained an order for genetic testing in 1996, whereas Hayes insists he agreed to be tested without entry of an order. According to Hayes, he appeared at the laboratory selected by the Department but “inordinate delays by the lab on the day [he] appeared jeopardized his job and prevented him from concluding the test.” In any event, neither party took any further action in the case, which it appears the Department and Sweden abandoned.
On January 7, 2004, the Department filed a new “Complaint Regarding Parental Obligations,” requesting the trial court to “Establish Parentage” and “Establish Support,” based on a renewed “Uniform Support Petition” the Swedish authorities sent the Department in March 2003. The trial court entered a default judgment against Hayes, and the Department issued an administrative order in October 2004 for Hayes to undergo genetic testing. The Swedish authorities acknowledged receipt of the genetic testing kit in November 2004, stating Kimberly and her mother would be tested and also noting Kimberly was still in the equivalent of high school. According to Hayes, Kimberly did not appear for her test.
Because he had not been served with the 2004 petition, Hayes successfully set aside the default judgment and, on January 5, 2005, answered the Department’s complaint by denying he was Kimberly’s father and, in the alternative, asserting the Department’s action was precluded by Kimberly’s emancipation and/or her refusal to submit to genetic testing. On January 21, 2005, the Department filed a proposed order for Hayes to undergo genetic testing and, concurrently, moved for judgment on its complaint to establish parentage and support, with a hearing date in May 2005.
Hayes responded with a motion to dismiss, arguing he was not Kimberly’s father and she was no longer a minor and/or had refused genetic testing. Hayes also proposed certain conditions on the genetic testing. Specifically, he sought “an order requiring the mother and child to be tested first, and the results supplied to [the Department and Hayes] before Hayes underwent testing. This would ensure that test results had not been tampered with . . . to match [Hayes’s] results — a possibility if [his] test results were revealed [to the Swedish authorities, presumably] first.” According to Hayes, “[s]uch safeguards are necessary because there is no way to verify the Swedish lab’s procedures or to test the accuracy of any test result in that the lab and its personnel cannot be compelled to testify.”
In reply to Hayes’s motion, the Department asserted his signed acknowledgment of paternity sufficed to establish parentage under Swedish law, precluding a collateral attack on the acknowledgment or paternity in the present proceeding. The Department also included in its reply a letter from Kimberly’s school stating she was still enrolled.
On its own motion, the trial court requested the parties review the documents sent by the Swedish authorities to see whether they included a request to establish paternity. Absent such a request, the trial court concluded it would lack jurisdiction to order genetic testing. The documents SSIO sent to the Department included no express request to establish Hayes’s paternity, only his obligation to support Kimberly.
Hayes filed supplemental points and authorities arguing the manner in which the Swedish consulate obtained his signature on the paternity acknowledgment violated due process. He also argued Swedish law afforded him a right to genetic testing and that SSIO and the Department were estopped from, or had waived, opposition to genetic testing based on their prior conduct. The trial court concluded Hayes’s signed acknowledgment established paternity under Swedish law and, consequently, the court had no jurisdiction to reopen the paternity question. The trial court therefore denied Hayes’s motion to order genetic testing, denied his motion to dismiss the Department’s complaint, and granted the Department’s request to establish parentage and support. Hayes now appeals.
II
DISCUSSION
A. Swedish Law
Hayes contends he is entitled to genetic testing under Swedish law governing the paternity acknowledgment. We would agree, if we were deciding this matter in the first instance. Sweden’s child support provisions, which the Department furnished as exhibits below, command welfare authorities there “to ensure that blood tests are carried out with respect to the mother, the child and the man who may be the father of the child, if the latter requests it or there is reason to assume that the mother had sexual intercourse with more than one man during the period in which the child could have been conceived.” (Swedish Code of Parenthood & Guardianship (SCPG), ch. 2, § 6.)
But as the trial court recognized, the paternity question in this case does not come to our shores on a blank slate. The Swedish code empowers Sweden’s welfare authorities to determine the paternity of children born out of wedlock (SCPG, ch. 2, § 1), and further provides that an “acknowledgement” accepted by the welfare agency suffices to establish paternity (id., ch. 1, §§ 3-4). We agree with the trial court that Sweden’s welfare authorities plainly considered Hayes’s paternal status established. The authorities attached the acknowledgment to the uniform support petition they submitted to the Department and, while requesting that the Department obtain a court order establishing child support, left unchecked the box designated on the petition for requesting “Establishment of paternity.” (Original italics.)
Had the Swedish welfare authorities known of Hayes’s contention he was not the father of Ann’s baby or that, according to Hayes, two other men in particular may have fathered the child, the authorities might not have considered the paternity question closed. And even if the welfare department refused to revisit the issue, Swedish law affords ample recourse to attack the agency’s paternity determination. (SCPG, ch. 3, § 3 [providing for declaratory relief “that an acknowledgement of paternity is without effect with respect to the man making it”].) In the declaratory action, the court considers the paternity question de novo. (SCPG, ch. 3, § 9 [providing for testimony and mandating “that the question of the paternity of the child is properly investigated”].) The court’s paternity determination may be appealed and, notably, the reviewing court may reverse and remand for further proceedings if there are merely “reasonable grounds for believing that someone who is not a party to the case may be the father of the child . . . .” (SCPG, ch. 3, § 12.)
While Swedish law thus affords numerous avenues for relief for a father challenging the accuracy or validity of a signed paternity acknowledgment, our hands are tied by California law. As the Department points out, Family Code section 4929, enacted pursuant to the Uniform Interstate Family Support Act (UIFSA), bars collateral inquiry into paternity in the forum responding to another tribunal’s support petition, where paternity has already been established. Family Code section 4929 provides: “A party whose parentage of a child has been previously determined by or pursuant to law may not plead nonparentage as a defense to a proceeding under this chapter.” Extinguishing any doubt that the purpose of this section is to short circuit collateral attacks, the comment by UIFSA’s drafters reveals the statute is a “res judicata” provision applicable to “prior determination[s] of parentage” rendered “by another tribunal.” (UIFSA com., 29F, West’s Ann. Fam. Code (2004 ed.) foll. § 4929, p. 509.)
Under UIFSA, a “‘[t]ribunal’ means a court, administrative agency, or quasi-judicial entity authorized to establish, enforce, or modify support orders or to determine parentage.” (Fam. Code, § 4901, subd. (x), italics added.) As discussed, Sweden’s family code empowers its social welfare agency to determine paternity by accepting a father’s acknowledgement. Hayes therefore may not circumvent that tribunal’s paternity determination or its ensuing support petition by pleading nonparentage. (Fam. Code, § 4929.) As the UIFSA drafters’ comment explains, “[T]he law of the issuing State may provide for a determination of parentage based on certain specific acts of the obligor, such as voluntarily acknowledging parentage as a substitute for a decree. UIFSA . . . is neutral regarding a collateral attack on such a parentage determination filed in the issuing State. In the meantime, however, the responding tribunal must give effect to such an act of acknowledgment of parentage if it is recognized as determinative in the issuing State.” (UIFSA com., 29F, West’s Ann. Fam. Code, supra, foll. § 4929, at p. 510, italics added.) Consequently, Hayes’s attempt in this forum to collaterally undermine the Swedish welfare agency’s paternity determination fails.
B. Due Process
Hayes’s due process arguments potentially have more merit and require remand. Hayes contended below that the Swedish consulate official in Ohio who obtained his acknowledgment provided him no notice: (1) that the form alone, if accepted by the Swedish welfare authorities, could result in entry of a money judgment against him for child support, or (2) that he had the right to have the issue of paternity decided by a court, a right to notice of any court hearing, and an opportunity to be heard and present a defense. To the contrary, the consulate official informed Hayes the acknowledgment was merely a formality so that his former acquaintance and her child could access Sweden’s safety net of social services.
In Soto, our Supreme Court explained its invalidation in an earlier case, Isbell v. County of Sonoma (1978) 21 Cal.3d 61, of “cognovit,” or confession of judgment, procedures formerly authorized by California law. “Under those procedures a creditor held an agreement for entry of final judgment, executed by a debtor in the amount of a sum due or to become due, as security for payment of the debt. Upon default the cognovit could be presented to the court for filing without notice to the debtor. The clerk would thereupon enter judgment in conformity with the confession of judgment. The judgment became subject to immediate enforcement although the debtor might not know that it had been entered and, therefore, even in the case of abuse, might not have an opportunity to move before execution to have the judgment set aside.” (Soto, supra, 35 Cal.3d at p. 487.) The Supreme Court concluded the procedure “violated the due process clause of the Fourteenth Amendment because it neither provided a debtor notice and opportunity to be heard, nor required that the record demonstrate a voluntary, knowing, and intelligent waiver of these rights.” (Ibid.; accord, Commercial Nat. Bank of Peoria v. Kermeen (1990) 225 Cal.App.3d 396-403.)
In Soto, the Supreme Court considered whether stipulated agreements concerning paternity and child support obtained by the district attorney under former Welfare and Institutions Code section 11476.1 violated due process. The court concluded the signed stipulations did not amount to an invalid confession of judgment because, “unlike the cognovit procedures, [section 11476.1] expressly required notice, providing: ‘Prior to entering into this agreement, the noncustodial parent shall be informed that a judgment will be entered based on the agreement.’” (Soto, supra, 35 Cal.3d at p. 488.)
All further statutory references are to this code unless otherwise specified.
Here, in contrast, the Swedish code governing voluntary acknowledgments provides only that they “shall be made in writing and witnessed by two persons” (SCPG, ch. 1, § 4), but requires no warning that signing the form amounts to entry of a paternity judgment. Consequently, the procedure is ripe for abuse, as here where the undisputed evidence is that a consulate bureaucrat informed Hayes the form was necessary “for the mother to obtain health and maintenance benefits from the Swedish government” and that “[his] signature was only for the mother and child, and would not affect [him] personally.” According to Hayes, the official “wanted me to sign the paper right away, and told me it was not necessary to take any time to think about it” because “[n]othing more would be asked of me, and the mother would get all of the benefits that Sweden offered its citizens.” Based on these representations, Hayes “signed the paper they gave me to sign,” noting “I was not asked to pay any money, nor was I told I would ever be required to pay any support.”
Soto observed that “the execution of an agreement for entry of a judgment of paternity leaves nothing to be done by entry of that judgment and of the order for support.” (Soto, supra, 35 Cal.3d at p. 489.) The Supreme Court concluded “[s]o grave are the consequences of a paternity judgment” that they must not “be imposed by involuntary default in a manner that was both unfair and unreliable . . . .” (Ibid.) Accordingly, the court determined due process required invalidation of judgments entered pursuant to stipulated paternity agreements “if the defendant was not aware of those consequences and did not knowingly and intelligently waive his right to a judicial hearing.” (Ibid.)
As noted in Soto and unlike Swedish law, former section 11476.1 required a prophylactic warning advising the putative father of the consequences of signing a paternity acknowledgment, i.e., that “‘a judgment will be entered based on the agreement.’” (Soto, supra, 35 Cal.3d at p. 488.) But former section 11476.1 failed to require the district attorney to advise the father of his right to a trial on the question of paternity. Swedish law affords the putative father, including those who have signed voluntary acknowledgments, the right to a trial concerning parentage (SCPG, ch.3, § 3), but like former section 11476.1, nothing in Swedish law provides for advising the putative father of the right to a judicial hearing.
Soto explained that the absence of the requisite advisements does not render a paternity determination void ab initio, but rather makes it voidable. “A final judgment need not be invalidated solely because a defendant has not been advised of his rights, or because that advice does not appear on the record. We have concluded that the consequences of a paternity judgment are such that a knowing waiver is essential to a valid judgment. Advising the defendant of those rights, and placing that advice on the record is a prophylactic procedure, however. It is designed to avoid entry of judgments based on agreements that are not voluntary and intelligent. [Citation.] Because the procedure is prophylactic, and the defendant may in fact have been aware of the consequences of the agreement and the rights he waived by executing it, the failure to advise the defendant or to put that advice on the record does not negate the possible voluntariness of the agreement. [Citation.]” (Soto, supra, 35 Cal.3d at p. 491.)
In Soto, the Supreme Court remanded the paternity question to the trial court to determine whether the defendant established “he was, in fact, unaware of the consequences of the agreement or of the fact that he waived his rights by executing the agreement, and that he would not have executed the agreement had he been aware of these matters.” (Soto, supra, 35 Cal.3d at p. 492.) So it is here. Absent due process, a foreign judgment concerning paternity or other matters is no more enforceable than a domestic one. (In re Stephanie M. (1994) 7 Cal.4th 295, 313-314; Rest. 2d Conflict of Laws, §§ 103, 104, 117.)
The Attorney General contends the standard of review requires that we infer the trial court considered and resolved the foregoing factual questions adversely to Hayes. But we may not indulge in this presumption when the record demonstrates otherwise. True, the reviewing court ordinarily presumes a judgment or order of the lower court is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “An exception is made, however, when the court’s comments unambiguously disclose that it failed to pass on the merits of the issue [citation], or that its ruling embodied, or rested upon, a misunderstanding of the relevant law [citation] or an arbitrary or irrational point of view [citation].” (People v. Penoli (1996) 46 Cal.App.4th 298, 305-306.)
Here, in ruling against Hayes, the trial court focused on the acknowledgment he executed at the consulate and concluded: “Under Swedish law, it’s a valid document of paternity, and Sweden is treating it as such. [¶] There are certain circumstances where the court can refuse to enforce. It is equivalent to a judgment and that’s usually where procedure [sic] due process has been denied and where someone never received notice or an opportunity to be heard. [¶] Mr. Hayes voluntarily went through this process, and he now claims that he was not advised of certain things. But I don’t think that it raises it to a constitutional level. It’s valid under Swedish law. It remains valid as long as it’s valid under Swedish law. [¶] This court has no jurisdiction and no grounds for dismissal.” (Italics added.)
As discussed, the trial court correctly determined the acknowledgment establishes paternity under Swedish law but, in light of Soto, the court erred by concluding Hayes’s challenges fell short in establishing a constitutional violation potentially rendering the acknowledgment unenforceable in American courts. We therefore remand the matter for trial on whether the Swedish consulate obtained Hayes’s endorsement on the acknowledgment form with a voluntary, knowing, and intelligent waiver of his rights. In other words, the trial court must determine: (1) whether Hayes was aware the potential consequences of signing the form included entry of a judgment of paternity rendering him liable for child support without a trial on the question, and, if not, (2) whether he would have executed the acknowledgment had he known this.
In light of our disposition, we do not reach Hayes’s contentions concerning estoppel or waiver with respect to genetic testing, since the trial court’s factual findings on remand may moot the issue. We note that, if the trial court reaches the waiver or estoppel question, the court should address whether the Department and Sweden’s failure to prosecute the initial support petition in 1995 precludes not only the Department’s opposition to genetic testing, as Hayes’s argues, but also, implicit in that argument, whether abandonment precluded instituting the 2004 action altogether.
III
DISPOSITION
We reverse and remand the matter for proceedings consistent with this opinion.
WE CONCUR: BEDSWORTH, ACTING P. J., IKOLA, J.