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S.E.L. v. J.A.P.

Supreme Court of North Dakota

January 15, 2019

S.E.L., Plaintiff and Appellant
v.
J.A.P., J.M., Defendants and State of North Dakota, Statutory Real Party in Interest and Appellee

          Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable Rhonda R. Ehlis, Judge.

          Theresa L. Kellington, Bismarck, ND, for plaintiff and appellant.

          Sheila K. Keller (argued) and Steven G. Podoll (on brief), Bismarck, ND, and Brittney A. Bornemann (on brief), Assistant State's Attorney, Dickinson, ND, for Statutory Real Party in Interest and Appellee.

          OPINION

          McEvers, Justice.

         [¶ 1] S.E.L. appeals from an order dismissing his action seeking to adjudicate the paternity of the child, J.J.M. We conclude the district court did not err in concluding S.E.L.'s action was barred by N.D.C.C. § 14-20-44(2). We affirm.

         I

         [¶ 2] On April 24, 2014, the child was born to the biological mother, J.A.P. Shortly after the child's birth, J.A.P. and J.M. executed an acknowledgment of paternity, claiming J.M. was the child's father.

         [¶ 3] In September 2016, S.E.L. filed a complaint challenging paternity, alleging the paternity acknowledgment was executed based on fraud and deceit, and requesting the court order genetic testing and declare he is the child's father. S.E.L. filed an affidavit in support of his complaint, stating he was in a sexual relationship with J.A.P. in Montana during the period of conception, J.A.P. moved to North Dakota after the child was conceived and entered into a relationship with J.M., J.A.P. never informed S.E.L. she was pregnant, and he learned about the child in the fall of 2015. He stated he attempted to establish paternity by filing paperwork with the Child Support Enforcement Division in Montana, but he learned that J.M. signed an acknowledgment of paternity on or around April 24, 2014. S.E.L. admitted it had been more than two years since the acknowledgment of paternity was signed, but he claimed the acknowledgment was based on fraud and deceit and should be declared void. S.E.L. also alleged the child had been removed from J.A.P. and J.M.'s care and placed in a foster home in February 2016, J.A.P. was to be released from jail in Nevada in August 2016, and J.M. was currently incarcerated in North Dakota.

         [¶ 4] The State, through Stark County Social Services, was served with the summons and complaint by mail. The State, through the Southwest Area Child Support Unit, answered and argued the claim was barred by the applicable statute of limitations and S.E.L. failed to state a claim upon which relief could be granted.

         [¶ 5] On January 24, 2017, S.E.L. moved for genetic testing, requesting the district court order genetic testing to determine whether he is the child's father. On February 23, 2017, the district court denied S.E.L.'s motion. The court explained that no party who was served with the motion responded to the motion, and the child is in the custody of the State but Stark County Social Services was not served with the motion. The court also explained J.M. is the child's acknowledged father and S.E.L. is unable to ask for genetic testing because he did not request testing within two years of the execution of the acknowledgment of paternity.

         [¶ 6] On May 8, 2017, S.E.L. filed a pretrial brief. He argued the Uniform Parentage Act, N.D.C.C. ch. 14-20, should not apply to his case. He also claimed a proceeding seeking to disprove the father-child relationship between a child and the child's presumed father may be maintained at any time, no statute of limitations exists to prevent genetic testing, and genetic testing is authorized under provisions of the Uniform Parentage Act.

         [¶ 7] On May 15, 2017, the State, through the Stark County State's Attorney's Office, answered S.E.L.'s complaint, stating it did not object to genetic testing. The State also argued S.E.L. failed to sufficiently serve all parties and his claim was beyond the applicable statute of limitations for a paternity action.

         [¶ 8] On June 9, 2017, the district court entered an order appointing a guardian ad litem for the child and to allow genetic testing. On July 17, 2017, the State, through the child support unit, moved for reconsideration of the order. The State argued the court had already denied the first motion for genetic testing and no relevant facts changed after that decision, and there was no motion to vacate or reconsider that prior order. The State also asserted there was no indication J.A.P. had ever been served, genetic testing could be refused under the Uniform Parentage Act if there was an untimely challenge to an acknowledgment of paternity, and a challenge to the acknowledged paternity is untimely in this case. S.E.L. opposed the State's motion.

         [¶ 9] After a hearing, the district court ordered S.E.L.'s action be dismissed. The court found J.A.P. and J.M. were in default. The court held S.E.L. commenced the proceeding more than two years after the effective date of the paternity acknowledgment, challenges to an acknowledgment of paternity must be commenced within two years after the effective date of the acknowledgment under N.D.C.C. § 14-20-44(2), and S.E.L. was not permitted to challenge the acknowledgment because his action was untimely. The court ruled all other issues pending before the court were moot and required no further adjudication because the matter was dismissed. Judgment was entered.

         II

         [¶ 10] S.E.L. argues the Uniform Parentage Act, N.D.C.C. ch. 14-20, should not be applied in the "very unusual" circumstances of this case. He claims there is a "very high probability" that he is the child's biological father, the child is currently in foster care, and the "presumed father" and biological mother do not have a relationship with the child. He contends the purpose of the Act is to protect biological fathers from interfering with formed relationships years after the fact and that purpose does not exist in this case.

         [¶ 11] The interpretation of a statute is a question of law, which is fully reviewable on appeal. D.E. v. K.F., 2012 ND 253, ¶ 7, 825 N.W.2d 832. In interpreting a statute, words are given their plain, ordinary, and commonly understood meaning, unless they are specifically defined or contrary intention plainly appears. N.D.C.C. § 1-02-02. "Statutes are interpreted to give effect to all of their provisions, and no part of the statute is rendered inoperative or superfluous." Altru Specialty Servs., Inc. v. N.D. Dep't of Human Servs., 2017 ND 270, ¶ 10, 903 N.W.2d 721; see also N.D.C.C. § 1-02-38(2) and (4). "When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." N.D.C.C. § 1-02-05.

         [¶ 12] Chapter 14-20, N.D.C.C., applies to determine parentage in North Dakota. N.D.C.C. § 14-20-03. Section 14-20-04, N.D.C.C., authorizes the district court to adjudicate parentage under Chapter 14-20. Section 14-20-36, N.D.C.C., authorizes a civil proceeding to adjudicate the parentage of a child.

         [¶ 13] An "acknowledged" father is defined as "a man who has established a father-child relationship under sections 14-20-11 through 14-20-24." N.D.C.C. § 14-20-02(1). Section 14-20-11, N.D.C.C., authorizes a mother of a child and a man claiming to be the child's genetic father to sign an acknowledgment of paternity with the intent to establish the man's paternity. A valid acknowledgment of paternity filed with the state health department is equivalent to an adjudication of paternity and confers upon the acknowledged father all of the rights and duties of a parent. N.D.C.C. § 14-20-15. "If a child has an acknowledged father..., an individual, other than the child, who is neither a signatory to the acknowledgment of a paternity... and who seeks an adjudication of paternity of the child must commence a proceeding not later than two years after the effective date of the acknowledgment[.]" N.D.C.C. § 14-20-44(2).

         [¶ 14] Chapter 14-20, N.D.C.C., applies to determinations of parentage. The district court found J.M. is an acknowledged father. S.E.L. is attempting to challenge the acknowledged paternity and to adjudicate his paternity, and the chapter contains provisions governing this type of proceeding. We conclude N.D.C.C. ch. 14-20 applies.

         III

         [¶ 15] S.E.L. argues the district court erred in dismissing his ...


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