Opinion
No. C8-97-2152.
Filed June 2, 1998.
Appeal from the District Court, Todd County, File No. F7-96-50075.
Charles G. Rasmussen, Todd County Attorney, (for respondent State/Todd County Social Services).
Anthony L. Notermann, (for respondent Revermann).
Jon K. Sannes, Brown Sellnow, (for appellant).
Considered and decided by Willis, Presiding Judge, Randall, Judge, and Klaphake, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Respondents State of Minnesota, on behalf of Todd County Social Services and Carol Revermann, brought this paternity action against appellant Laverne Koenig. Koenig appeals from an order denying his motion to dismiss for lack of personal jurisdiction and other motions, including a motion to quash the results of the blood test. We affirm.
FACTS
Revermann gave birth to a daughter in August 1992. Her applications for public assistance listed Koenig as the father of her child, and an administrative action was begun to establish parentage. A notice of this action was mailed to him in September 1995. After Koenig failed to respond, an "Order for Genetic or Blood Tests" was issued. A sheriff's certificate of service indicates that this order was personally served on Koenig on March 5, 1996. Koenig again failed to respond, and a warrant was issued for his arrest. Koenig was picked up on the warrant in August 1996.
In September 1996, Koenig appeared in district court. He filled out a statement of rights form for paternity proceedings, entered a denial of the complaint, and requested a court-appointed attorney. He was then taken to the hospital for a blood test. The test results indicated a 99.78 probability that Koenig is the child's father.
Koenig thereafter filed a number of pro se motions. Koenig's court-appointed attorney eventually consolidated these motions. Following a hearing in October 1997, the district court denied Koenig's motions and set the matter for trial. This appeal followed.
DECISION
On review of an order denying a motion to dismiss for lack of jurisdiction, a reviewing court also may review nonjurisdictional issues in the interest of justice and judicial economy. DonCarlos v. DonCarlos , 535 N.W.2d 819, 820 (Minn.App. 1995), review denied (Minn. Oct. 18, 1995).
Right to Attorney
Koenig argues that the blood test results must be suppressed because he was not given the right to an attorney. However, Koenig was advised of his right to an attorney in the notice of the administrative action to establish parentage, which was mailed to him in September 1995. He was again advised of his right to an attorney in September 1996, when he first appeared in district court, filled out a statement of rights, and requested an attorney. While Koenig suggests that he was entitled to representation prior to having a blood sample taken, the district court had the authority to compel him to submit to a blood test. Minn. Stat. § 257.62, subd. 1(a) (Supp. 1997) (court may require alleged father to submit to blood or genetic tests); Minn. Stat. § 518.5512, subd. 2(c) (1996) (district court may appoint counsel for indigent alleged father "only after the return of the blood or genetic test results"); State on Behalf of Kremin v. Graham , 318 N.W.2d 853, 855-56 (Minn. 1982) (statute providing for compulsory blood tests in paternity actions is constitutional and not invalid as unwarranted exercise of police power, violation of substantive due process, or violation of right to privacy).
Although Koenig insists that his blood sample was taken forcibly, the authorization form that he signed suggests otherwise. It stated: "I submit myself for sample collection and testing for paternity evaluation."
Opportunity to be Heard
Koenig argues that the blood test results should be suppressed because he was denied an opportunity to be heard on his pro se motions to dismiss. Although Koenig requested an attorney at his first appearance in September 1996, he then filed a number of pro se motions before an attorney was appointed for him. In February 1997, an attorney finally was appointed to represent Koenig. This attorney consolidated Koenig's pro se motions, and this appeal is from the district court's denial of those motions. Thus, Koenig was given an opportunity to be heard.
Insufficiency of Process
Koenig challenges the sheriff's certificate of service that indicates he was personally served on March 5, 1996, with the Order for Genetic Tests. He claims that he was not the individual served, but that he had loaned his truck to someone named "Cole," who resembles him, and that he did not discover the papers until sometime later. At the October 1997 hearing on his motions to dismiss, his attorney submitted affidavits from two other individuals, who stated that Koenig lent his truck to "Cole," who is similar in appearance to Koenig.
Determination of whether a summons and complaint is properly served is a jurisdictional question of law. Amdahl v. Stonewall Ins. Co. , 484 N.W.2d 811, 814 (Minn.App. 1992), review denied (Minn. June 16, 1992). A sheriff's return of service is strong evidence of proper service. Peterson v. Eishen , 495 N.W.2d 223, 225-26 (Minn.App. 1993) aff'd , 512 N.W.2d 338 (Minn. 1994). This presumption may be overcome by production of clear and convincing evidence otherwise. Id. at 226.
The affidavits submitted by Koenig's attorney are not conclusive: one of the affidavits was not notarized; both address the week of March 11, 1996, not March 5; and both are based on hearsay information that an individual by the name of "Cole" was the one who was driving Koenig's truck and had been served. In addition, in a document dated March 18, 1996, in which he challenged the order for genetic tests as "fraudulent," Koenig acknowledged receipt of the order. Finally, Koenig criticizes the state for failing to call the deputy to testify. The record indicates that Koenig chose both not to subpoena the deputy and not to appear himself at the hearing to offer testimony. The district court did not err in ruling that Koenig had been personally served.
Presumption of Paternity
Koenig argues that because no presumptions of paternity were established prior to his "forced" blood test, the test results must be suppressed and the district court lacked jurisdiction over this matter. He claims that he was afforded fewer rights in this civil proceeding than he would have in a criminal proceeding.
Because the mother named Koenig as her child's father on at least two applications for public assistance, he can be considered an "alleged father" and be made a party to this action. See Minn. Stat. § 257.60 (1996) ("[t]he biological mother, each man presumed to be the father under section 257.55, and each man alleged to be the biological father, shall be made parties" to paternity action). In addition, as an "alleged father," Koenig could be required to submit to a blood test. See Minn. Stat. § 257.62, subd. 1(a) (authorizes court to require "alleged father" to submit to blood or genetic tests); Minn. Stat. § 518.5512, subd. 2(a) (Supp. 1997) (nonattorney employee of public authority may request ALJ or district court to order alleged father to submit to blood or genetic tests); Graham , 318 N.W.2d at 855-56 (upholding § 257.62, subd. 1, as constitutional and not violative of due process or right to privacy). Once the results of that blood test established Koenig as the presumptive father and Koenig continued to contest paternity, the matter was properly referred to district court. See Minn. Stat. § 518.5512, subd. 2(b) (1996) ("If parentage is contested at the administrative hearing, the administrative law judge may order temporary child support under section 257.62, subdivision 5, and shall refer the case to the district court.
Equal Protection
Koenig vaguely argues that Minn. Stat. § 257.55, subd. 2 (1996), is discriminatory and violates equal protection because once the state establishes a presumption of paternity, that presumption can be rebutted only by "clear and convincing" evidence. He insists that this burden places putative fathers at a procedural and evidentiary disadvantage.
Equal protection prohibits the government from making distinctions between similarly situated people without a legitimate government interest. R.B. v. C.S. , 536 N.W.2d 634, 637 (Minn.App. 1995). Because the state has a legitimate and substantial interest in establishing paternity and promoting the best interests of children, it may distinguish between putative fathers who come forward and take responsibility for their children and those who do not. Cf. Machacek v. Voss , 361 N.W.2d 861, 863 (Minn. 1985) (statute requiring defendant in paternity action to pay temporary child support if blood test indicates certain likelihood of paternity not violative of equal protection).
Venue
Koenig argues that the district court improperly denied his motion to dismiss for lack of any sexual act in Minnesota. The argument is without merit. The child resides in Todd County; thus the matter is properly venued there. See Minn. Stat. § 257.59, subd. 3 (1996) (paternity action may be brought in county in which child or defendant resides or is found).
The district court did not err in denying Koenig's motions.