Katherine W. v. Eric S.

Filed 4/11/07 Katherine W. v. Eric S. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, James L. Waltz, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Motion to dismiss appeal denied; Order reversed as premature.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Thomas R. Yanger, Senior Assistant Attorney General, Paul Reynaga and Sharon Quinn, Deputy Attorneys General, for Intervener and Appellant, Orange County Department of Child Support Services.

Michel & Rhyne, Karen A. Rhyne; John L. Dodd & Associates, John L. Dodd, for Defendant and Respondent, Eric S.

No appearance for Plaintiff and Respondent, Katherine W.

The Orange County Department of Child Support Services (the Department) appeals from an order requiring Katherine W. and Eric S., and their daughter, Ashton S., to submit to genetic testing to establish paternity. The Department argues the trial court erroneously ordered genetic testing for the following reasons: (1) the order was in excess of its jurisdiction because there was a 1994 stipulation for judgment establishing paternity; and (2) Family Code section 7646[1] does not authorize genetic testing. Eric moved to dismiss the appeal arguing the Department has no standing to appeal, the Department appealed from a nonappealable order, and the appeal was untimely. As we explain below, we deny Erics motion to dismiss the Departments appeal and reverse as premature the trial courts order requiring genetic testing.

FACTS

Katherine and Eric, never married, are the parents of Ashton, who was born in September 1991. Eric agreed to have his name put on Ashtons birth certificate because he believed he was her biological father.

In November 1993, Katherine filed a complaint to establish paternity and an order to show cause. In February 1994, Eric answered the complaint. Eric stated he was uncertain he was Ashtons father and requested genetic testing be performed to establish paternity. Eric also responded to the order to show cause and stated he would consent to guideline support when paternity was established. In March 1994, the parties stipulated to the trial courts order that Eric pay child support and Katherine, Eric, and Ashton submit to blood and DNA testing at Erics expense.

In June 1994, before the testing was done, Eric stipulated he was Ashtons father. Erics stipulation was memorialized in a stipulation and order for judgment[,] which was signed by counsel for both parties, Eric and Katherine, and the trial judge. The trial court issued a minute order the same day approving the written stipulation.

Approximately 10 years later, in July 2004, Katherine requested child support enforcement services from the Department. In October 2004, Eric filed an order to show cause requesting an order terminating child support, awarding reasonable attorneys fees and actual costs, and declaring no arrears exist. Eric included a declaration stating he paid child support until Katherine informed him she wanted her new husband, William A., to adopt Ashton and he signed adoption papers. Eric said William raised Ashton and held her out as his own, and Ashton took his last name.

In December 2004, the Department responded to the order to show cause and requested a guideline child support order. It stated Eric stipulated he was Ashtons father and agreed to pay child support. The Department claimed Eric owed child support arrears in the amount of $140,573.99.

After numerous continuances, and before a hearing on the order to show cause, in May 2005, Eric filed a motion to set aside or vacate the order stipulating to paternity. In his declaration, Eric stated that based on Ashtons conception date, he is not her biological father. He explained that Katherine had sex with another man the date Ashton was conceived, and based on the nature of Eric and Katherines sexual acts, it was impossible for Eric to have fathered Ashton on that date. Additionally, Eric claimed Ashton did not resemble him or anyone in his family, but looked more like the other parties children[.] Eric stated he did not bring the motion when he learned of Ashtons conception date because he had signed a form consenting to Ashtons adoption and believed further action was unnecessary. He stated that after consenting to the adoption, Katherine, Ashton, and William moved to Mexico for a few years. Eric claimed William did not proceed with the adoption, but he raised Ashton as his own and Ashton took Williams last name as her last name.[2] Eric stated that when he signed the stipulation of paternity, he believed his acquiescence in being listed as Ashtons father on her birth certificate established paternity and challenging it would result in higher child support payments. He said Katherine knew he was not Ashtons father, but did not say anything because she had a better chance of obtaining child support from him. Based on principles of equity and sections 7646 and 7647, Eric moved to set aside his June 28, 1994, stipulation and order for judgment of paternity.

Katherine responded to the motion and requested guideline child support and attorneys fees and costs. In her declaration, Katherine stated Eric stopped making child support payments in 1994 and they did not discuss adoption until October 2002. Katherine claimed Eric was eight years behind in his child support payments when they first discussed William adopting Ashton. Katherine disputed William held Ashton out as his own child, but stated he cared for her because Eric refused to accept parental responsibility for Ashton. Katherine also denied William was the putative father of Ashton.

The Department also responded to the motion. The Department argued Eric was not entitled to relief on equitable grounds because he did not establish extrinsic fraud, section 7646 was inapplicable, and County of Los Angeles v. Navarro (2004)

120 Cal.App.4th 246 (Navarro), was either superseded or inapplicable.

Katherine filed a second response to the motion. In her declaration, Katherine stated Eric is Ashtons biological father. Katherine stated Eric knew her approximate conception date and her due date before Ashton was born, and he was present for Ashtons birth. Katherine claimed Eric insisted Ashton take his last name and that it appear on her birth certificate, and he never questioned paternity. She said they lived together for approximately one and one-half years after Ashton was born. Katherine claimed that when the issue of child support arose, she offered to pay for a paternity test, but Eric declined her offer because he was sure he was Ashtons father.

On August 19, 2005, there was a hearing on Erics order to show cause and motion to set aside or vacate the order stipulating to paternity. Katherine and Eric, and their attorneys, appeared at the hearing. The Departments counsel also appeared, but was excused at the onset. Katherine and Eric were sworn in, but only Eric testified. The trial court took under submission the issue of whether it would order genetic testing.

On September 2, 2005, the trial court ruled by minute order on the issue of genetic testing. After noting a judgment of paternity was never entered, the court ordered Katherine, Eric, and Ashton to submit to genetic testing and ordered the Department to arrange the testing and advance the testing fees. The court interpreted section 7646 broadly and concluded that section did not prohibit genetic testing based on the circumstances in this case. The court reserved ruling on the motion to set aside the order stipulating to paternity and whether Eric owed child support arrears.

Approximately three weeks later, the Department requested a stay on the order requiring genetic testing ex parte. At a hearing on September 21, 2005, the trial court stayed the genetic testing and continued the hearing to determine if genetic testing should go forward[,] in part to allow the Department to be heard on the issue.

Eric responded to the request. He argued that although the Department opposed his motion to vacate the order stipulating to paternity, it waived the right to object to the trial courts order requiring genetic testing because the Departments counsel left the hearing.

The Department filed a brief in support of its request to stay genetic testing essentially on the same grounds it opposed Erics motion to set aside or vacate the order stipulating to paternity. Eric filed a memorandum of points and authorities and a supplemental memorandum of points and authorities in response.

On November 4, 2005, counsel for Katherine, Eric, and the Department, were present for a hearing only on the issue of genetic testing. The trial court explained it had stayed the order for further consideration of the issue. After the court stated there was no statute or case that precludes genetic testing and it did not believe the stipulation and order for judgment was a judgment, the court heard argument. Relying on section 7551, the court stated it was adopting its previous order requiring genetic testing because paternity was a relevant fact. The court reasoned that although the stipulation and order for judgment could be viewed as an interim order, there was no entry of a paternity judgment because the parties did not comply with Code of Civil Procedure section 664.5 et seq. The court explained there was no statute or case that precludes genetic testing. The court stated its ruling was limited to the narrow issue of whether genetic testing was appropriate and nothing else. The court stayed enforcement of the order requiring genetic testing until December 30, 2005, so the Department could challenge the courts order. The court issued a minute order and a statement of decision/order after hearing, both reflecting its ruling. The Department appealed from the trial courts December 2, 2005, order after hearing[.]

Eric moved to dismiss the appeal on the grounds the Department did not have standing, the Department appealed from a nonappealable order, and the appeal was untimely. The Department opposed the motion, and Eric replied. We ordered the motion be decided in conjunction with this appeal.

DISCUSSION

The issue in this case is narrow. Did the parties stipulation and order for judgment conclusively establish Eric was Ashtons father precluding further inquiry into the issue? The trial court ruled it did not because the parties did not comply with Code of Civil Procedure section 664.5 and properly enter judgment, and genetic testing pursuant to section 7551 was appropriate to resolve the paternity issue. The Department disagrees stating the stipulation and order for judgment resolved the paternity issue. We will discuss this issue anon, but we must first address Erics motion to dismiss the appeal.

I. Motion to Dismiss

A. Standing

Eric argues the Department has no standing to appeal. We disagree.

Section 17400, subdivision (a), requires the Department to establish, modify, and enforce child support obligations, and determine paternity for children born out of wedlock. Section 17400, subdivision (a), also authorizes the Department to take all appropriate actions to establish, modify, and enforce child support orders.

Section 17400, subdivision (k), states, In the exercise of the authority granted under this article, the local child support agency may intervene, pursuant to [Code of Civil Procedure section 387,] subdivision (b)[,] . . . by ex parte application, in any action under this code, or other proceeding in which child support is an issue or a reduction in spousal support is sought. Thus, section 17400, subdivision (k), authorizes the Department to intervene in any action in which child support is an issue.

Here, Katherine requested the Department enforce the child support order. On July 23, 2004, the Department substituted itself as payee for purposes of all support obligations and medical obligations required by federal law. The Department also filed multiple pleadings in the case, including opposition to the genetic testing and the motion to set aside/vacate the order/judgment stipulating to paternity. Section 17400 authorized the Department to intervene in the matter to enforce the applicable child support order. The Department had standing to appeal the trial courts order requiring genetic testing because the test results could affect the child support order. Therefore, the Department acting at Katherines request, and on her behalf, had standing to appeal the trial courts order requiring genetic testing. (County of Los Angeles v. Sheldon P. (2002) 102 Cal.App.4th 1337, 1345-1346 [county acted on mothers behalf and for her benefit pursuant to section 17400 and thus had standing].)

B. Appealable Order

Eric contends the Department appealed from a nonappealable orderthe trial courts December 2, 2005, order denying reconsideration of its September 2, 2005, order requiring genetic testing. The Department admits it did not file a motion for reconsideration of the trial courts September 2, 2005, order, but instead filed a motion for a stay of genetic testing. Eric acknowledges the admission, and claims a motion for a stay is not an appealable order.

Eric apparently forgets he conceded the Department appealed from an appealable order. In his discussion whether the Department had standing, Eric stated, Although the order for genetic testing is theoretically . . . appealable by someone as a mandatory injunction [citation], [the Department] is not aggrieved by the order, which only affects Eric, Katherine, and [Ashton]. The order requiring Katherine, Eric, and Ashton to submit to genetic testing is appealable as a mandatory injunction.

(Code Civ. Proc., 904.1, subd. (a)(6).)

C. Appeal Timely

Eric argues that if we were to find the Department appealed from a nonappealable order, the December 2, 2005, order, then any claim the Department made that it appealed from the September 2, 2005, order would also be meritless because that appeal would be untimely. On December 15, 2005, the Department appealed from the trial courts order filed December 2, 2005, an order which we explain above is an appealable order. The Departments appeal was timely. (Cal. Rules of Court, rule 8.104(a).) For the foregoing reasons, we deny Erics motion to dismiss the appeal.

II. Genetic Testing

The Department argues the trial court erroneously ordered Katherine, Eric, and Ashton to submit to genetic testing because: (1) the courts order was in excess of its jurisdiction; (2) the June 28, 1994, stipulation and order for judgment was a judgment as to the issue of paternity; and (3) section 7646 did not authorize genetic testing. Eric contends the court properly ordered genetic testing because there is no final paternity judgment, and therefore, paternity is a relevant fact. As we explain below, we conclude there was a final paternity order, and the trial court prematurely ordered genetic testing.

In the June 28, 1994, stipulation and order for judgment, Eric and Katherine stipulated Eric was Ashtons natural father, Katherine would not seek modification of the child support order for one year, Eric would pay child support, and they agreed to return to mediation if the visitation schedule became unworkable. Eric and Katherine, their counsel, and the trial court judge signed the form stipulation.

Below the forms title, where the parties checked the box indicating they intended to enter into a stipulation and order for judgment, the form states, A stipulation for [j]udgment does not replace the formal, typed judgment. (Italics added.) Below Erics and Katherines signatures, the form states, We have read the entire stipulation and agreement. We understand it fully and request the court to make our stipulation and agreement the [c]ourts order. We understand that willful failure to comply with the provisions of this order will be a contempt of court and may be punished by fine and imprisonment. We waive all further notice of this order. (Italics added.)

The trial courts minute order states it approved the written stipulation and made the written stipulation its order and filed it the same day, June 28, 1994. The court did not check the box on the minute order indicating the courts order was an interim order until the filing of the formal judgment and directing counsel to prepare judgment or check the box directing Katherine to prepare a judgment.

The Department argues the trial court erroneously ordered Katherine, Eric, and Ashton to submit to genetic testing because the June 28, 1994, stipulation and order for judgment was a final judgment on the issue of paternity. Specifically, the Department claims there was a final judgment on the paternity issue because: (1) the stipulation and order for judgment determined Eric was Ashtons father and it became final when the time to challenge it expired, or alternatively, (2) the stipulation and order for judgment, even if not a judgment, was a final order and res judicata as to the paternity issue, and thus, paternity was no longer a relevant fact in the case.

Eric claims there is no paternity judgment because the parties did not comply with Code of Civil Procedure section 664.5. Additionally, he contends that if we find there was a paternity judgment, the trial court should set aside the paternity judgment pursuant to section 7646 and because there was extrinsic fraud. To resolve this dispute, we must first address the applicable standard of review.

The Department claims our task is to interpret and apply a statute to an undisputed set of facts and our standard of review is de novo. Eric admits statutory interpretation is a legal question, but asserts our standard of review is abuse of discretion. We agree our task is one of statutory interpretation and conclude the applicable standard of review is de novo. (Elsenheimer v. Elsenheimer (2004) 124 Cal.App.4th 1532, 1536.)

With respect to the Departments first claim, our review of the record indicates the parties never prepared and entered a formal, final judgment. Additionally, neither party points to anything in the record which suggests a formal, final judgment was entered. The trial court concluded the parties never entered judgment on the paternity issue. Although the parties waived further notice of the order, the stipulation and order for judgment did not obviate the parties duty to prepare and enter a final judgment. The stipulation and order for judgment states, at the top of the form, A stipulation for [j]udgment does not replace the formal, typed judgment. (Italics added.) The parties had notice further action was necessary. The trial court judge signed the stipulation and order for judgment[,] and the court clerk entered the minute order, but neither Katherine nor Eric prepared or moved to enter a formal, final judgment. Waiver of further notice of the order is not waiver of the duty to prepare and enter a formal, final judgment as indicated on the stipulation and order for judgment signed by both Katherine and Eric, and more importantly, by their counsel. Moreover, the stipulation and order for judgment failed to resolve all pending issues in the paternity action, notably custody, visitation, and support. Therefore, the June 28, 1994, stipulation and order for judgment was not a final judgment in the paternity action.

But, as the Department argues, the stipulation and order for judgment, signed by the court, was nevertheless a final and binding order establishing paternity. Section 7636 states, The judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes . . . . (Italic added.) Therefore, here, there is a final order establishing Eric is Ashtons father. And that order is determinative for all purposes. (Ibid., italics added.)

In In re Margarita D. (1999) 72 Cal.App.4th 1288, 1290-1293 (Margarita), the court addressed the issue of whether the trial court erred in not ordering a paternity test for defendant who claimed to be the childs father over two years after entry of the paternity judgment. The court stated, The existence of a valid paternity judgment bars the use of blood test evidence in a subsequent proceeding to overturn a paternity determination. [Citation.] [] In other words, for [defendants] paternity testing request to go forward, he had to succeed in setting aside the existing paternity judgment. Having failed to do so, there was no legal ground to proceed with paternity testing. (Id. at p. 1296.)

Margarita, which the Attorney General fails to discuss, stands for the proposition a party seeking genetic testing must first successfully set aside the existing paternity judgment or order pursuant to section 7646 or because of extrinsic fraud.[3] Here, the trial court stated it was deciding the narrow issue of whether genetic testing was appropriate, and it was not addressing Erics likelihood of success pursuant to section 7646 or on equitable grounds. But, Margarita holds that issue must be resolved before genetic testing is appropriate. (Margarita, supra, 72 Cal.App.4th at p. 1296.) Therefore, the trial court prematurely ordered genetic testing without first determining whether Eric would prevail on his motion to set aside or vacate the order stipulating to paternity. Without such a showing, there is a final paternity order, and thus, paternity is not a relevant fact as required by section 7551.[4]

DISPOSITION

Erics motion to dismiss the Departments appeal is denied. The order is reversed as premature. Each party shall bear its own costs on appeal.

OLEARY, ACTING P. J.

WE CONCUR:

MOORE, J.

IKOLA, J.

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[1] All further statutory references are to the Family Code, unless otherwise indicated.

[2] In his points and authorities filed with his motion and declaration, Eric stated that when Katherine, Ashton, and William returned from Mexico, he signed a second adoption agreement that was notarized on October 4, 2002.

[3] Section 7645, subdivision (b), states, Judgment means a judgment, order, or decree entered in a court of this state that establishes paternity . . . . (Italics added.)

[4] Section 7551 states, In a civil action or proceeding in which paternity is a relevant fact, the court may . . . order the mother, child, and alleged father to submit to genetic tests. (Italics added.)