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Melissa FOSTER, Plaintiff/Appellee, v. Vernon McDOWELL, Defendant/Appellant

Oklahoma Court of Civil Appeals2015-01-22No. No. 112,570
344 P.3d 11022015 OK CIV APP 20

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Opinion

majority opinion

ROBERT D. BELL, Judge.

{1 In this paternity action, Respondent/Appellant, Vernon McDowell, appeals from the trial courts decree of paternity and its order denying his motion to vacate the decree of paternity. Appellant admitted to the trial court that he is the putative father of the minor child, R.D.P. Based on that admission, we cannot find the trial court exceeded its jurisdiction in decreeing Appellants paternity or that it abused its discretion in denying his motion to vacate the decree of paternity. The trial courts decree of paternity and order denying the motion to vacate are affirmed.

12 Petitioner/Appellee, Melissa Foster, is the mother of the child. Mother was married when the child was born on January 10, 2010, to Ryan David Pratt (Husband). Husband was listed as the father on childs birth certificate. Husband initiated divorce proceedings against Mother on May 2, 2011. On July 25, 2011, when the child was one and one-half (1 %) years old, the family court entered a minute order, based on Mothers and Husbands stipulation, finding Husband is not the father of the child. The decree of divorce entered January 11, 2012, when the child was two years and one day old, found Mother and Husband agreed and stipulated that Husband was not the father of the child.

T3 Mother filed a paternity suit against Appellant on August 15, 2018, pursuant to the Oklahoma Uniform Parentage Act, 10 0.S.2011 $ 7700-101 et seq. (Act). Husband was not a party to this paternity proceeding. According to the trial courts docket and Appellants brief-in-chief, Appellant appeared at the hearing on September 25, 2018, and admitted he is the biological father of the child. Based on this admission, the trial court entered a decree of paternity on December 2, 2018, finding Appellant is the biological father of the child and ordering Appellant to pay child support.

14 On December 10, 2013, Appellant filed a motion to vacate the paternity decree arguing the two-year statute of limitations for paternity suits in 10 0.8.2011 § 7700-607 prevented the trial courts adjudication of Appellants paternity and entry of the order for child support. The court denied the motion to vacate and ordered Father to pay $500.00 of Mothers attorney fees for having to defend against the groundless motion to vacate. Appellant now appeals.

T5 Appellant argues the trial court acted contrary to public policy when it adjudicated his paternity to a child who already has a presumed father under the Act. Appellant contends Husband is the presumed father because he failed to comply with the statutory requirements in the Act to establish his non-paternity. This appeal raises a question of law which this Court reviews de novo. K & H Well Serv., Inc. v. Tcina, Inc., 2002 OK 62, ¶ 9, 51 P.3d 1219 ([Wlhether the facts (once established) demonstrate substantial compliance with applicable statutory requirements-is largely a question of law for the trial court to resolve.).

T6 Appellant specifically claims Husband did not timely deny his paternity in accordance with the two-year statute of limitations set forth at 10 0.98.2011 § 7700-803; therefore, Husband is the presumed father of the child by operation of law. Mother counters Husband properly disproved the father-child relationship between Husband and child by filing a petition for dissolution of marriage against Mother on May 2, 2011, before the child became two years old. Mother asserts the filing of this action resulted in a timely stipulation that Husband was not the father of said child.

T7 After de novo review, we hold Husband successfully rebutted the presumption of his paternity in compliance with the Act. Section T700-607(A) provides: [all proceeding brought by a presumed father, the mother, or another individual to adjudicate the parentage of a child having a presumed father shall be commenced not later than two (2) years after the birth of the child. Section 77?00-610(A) provides: [a] proceeding to adjudicate parentage may be joined with a proceeding for adoption, termination of parental rights, child custody or visitation, child support, dissolution of marriage, annulment, legal separation, probate or administration of an estate, or other appropriate proceeding.

{8 Here, Husband commenced an action to dissolve his marriage to Mother within a year and a half of the childs birth; thus, Husbands action to rebut his status as the presumed father of the child was clearly commenced within the two-year restriction of the Act. Furthermore, within two-years of the childs birth, the family court entered a minute order adjudicating that Husband was not the father of the child. This adjudication of Husbands non-paternity legally rebutted the statutory presumption of his paternity of the child born during the marriage even though Husband did not sign a denial of his paternity pursuant to § 7700-308.

19 Appellant claims Stevens v. Griggs, 2013 OK CIV APP 104, - P.3d --, mandates the reversal of this case. This case is distinguishable from Stevens In Stevens, the mother appealed the district courts dismissal of her petition to establish paternity against the alleged father. The mother filed her paternity action six years after the childs birth. Throughout that six year period, the husband believed he was the childs father, he held the child out as his son, and raised the child in his household as his own. Even though the biological test showed the alleged father was the childs natural father, the appellate court held under the Act, the husbands status as the presumed father was irrebuttable because the paternity action was commenced later than two years after the childs birth.

1] 10 Here, the issue of Husbands paternity of the child born the during the marriage was actually commenced in the family court within two years of the childs birth We therefore reject Appellants claim that Husband was the presumed father of the child under Stevens and by operation of law.

111 We also reject Appellants assertion that Mothers paternity action was untimely filed against Appellant. Because Husband successfully rebutted the presumption of his paternity within a timely commenced proceeding which sought to disprove the father-child relationship, the child had no presumed, acknowledged or adjudicated father. Under these facts, § 7700-606 authorized Mother to bring this paternity action against Appellant more than two years after the childs birth. This section provides, in part: A proceeding to adjudicate the parentage of a child having no presumed, acknowledged, or adjudicated father may be commenced at any time. . . . Id.

112 Appellant also contends the trial court exceeded its jurisdiction when it decreed his paternity of the child. Appellants argument is disingenuous considering that Appellant admitted his paternity to the trial court, as reflected by the trial courts docket, and in his appellate brief-in-chief.

113 Furthermore, § 7700-628 of the Act provides:

A. A respondent in a proceeding to adjudicate parentage may admit to the paternity of a child by filing a pleading to that effect or by admitting paternity under penalty of perjury when making an appearance or during a hearing.

B. If the court finds that the admission of paternity satisfies the requirements of this section and finds that there is no reason to question the admission, the court shall issue an order adjudicating the child to be the child of the man admitting paternity.

Based on this statutory language and Appellants admission to paternity, we hold the trial court properly adjudicated Appellant to be the father of the child and reject Appellants claim that the trial court exceeded its jurisdiction under the Act.

T 14 We conclude the trial court properly entered its decree of paternity. Because we uphold the decree of paternity, we find the trial court did not abuse its discretion by denying Appellants motion to vacate the decree of paternity. Both the decree of paternity and the trial courts order denying Appellants motion to vacate are therefore affirmed.

15 AFFIRMED.

GOREE, P.J., and BUETTNER, J., concur.

. This Court takes judicial notice of the district courts dockets. Collier v. Reese, 2009 OK 86 n. 7, 223 P.3d 966.

. The court minute memorializing Appellants admission was not included in the appellate record. Appellants admission against his interest in his brief supplements any deficiency in the record. Reeves v. Agee, 1989 OK 25, ¶ 16, 769 P.2d 745.