Andrew R. v. DES (CA1 1/14/10)

This custody dispute illustrates a problem with statutory interpretation and drafting.

When Jocelyn’s child was born, she and her boyfriend Andrew signed an acknowledgement of his paternity. Under the statute (25-812), this results in the entry of an order by the clerk that has the effect of a judgment of paternity.

The statute says that the acknowledgement can be rescinded within sixty days and that a party “may challenge a voluntary acknowledgment of paternity . . . at any time after the sixty day period only on the basis of fraud, duress or material mistake of fact” under Rule 60 (though the statute now says “Rule 85 of the family law rules of procedure,” the family-law folks having decided that they need their own rules even if those duplicate the standard rules).

Eight months later, now in a custody battle with Andrew (and the DES, the State having taken the child for various reasons), Jocelyn filed a Rule 60(c) motion to set aside Andrew’s acknowledgement. Andrew opposed it. (And there you have the facts you need; for some reason, but predictably nowadays, the opinion goes into entirely unnecessary detail about Jocelyn and Andrew’s sordid and sorry lives.)

Rule 60(c) (and Rule 85(c)) motions may be made no more than six months from the entry of judgment. So, was Jocelyn’s challenge made too late?

The trial court thought not, because someone had mentioned that there might be a paternity question in earlier hearings in the custody case, at least one of which was within the six months. The judge granted Jocelyn’s motion on grounds of fraud (the theory apparently being that neither she nor Andrew really thought he was the father, or that they thought he might not be the father, or some such) and ordered genetic testing.

The ruling on a 60(c) motion is appealable because of 12-2101(c), which the court should have mentioned but didn’t, instead giving useless, boilerplate cites as the basis of jurisdiction. Statements of jurisdiction are, like statements of the standard of review, just boxes for opinion-drafters to check; actually thinking about them is optional and rare. The standard-of-review discussion here is also a mindless copy-and-paste job.

A majority of the Court of Appeals reversed the trial court, concluding that six months is six months and that eight months is not six months. Mentioning something in court hardly counts as making a motion raising the issue. The trial court should therefore have denied the motion.. The dissent argued that the statutory language “at any time after the sixty day period” means that a challenge under the statute is not limited to six months. That actually isn’t a bad argument since the court has a duty to try to make the words “at any time” mean something, with the result that the majority and dissent throw 27 pages of arguments back and forth at each other. One might argue, though, that they never really boil down to much more than “that’s what the statute says because that’s what it says to me.” The dissent thinks that genetic testing is the better way to do things, anyway; the majority replies that the statute allows people to get a test if that’s the way they want to do it.

The culprit here is a technical drafting problem with the statute. Integrating a court rule into a statute is a bad, bad idea that is, unfortunately, not unique to this one. Just what the interplay between the two is supposed to be – especially where, as here, somebody has (unthinkingly, we think) added superfluous words – and what happens when anyone wants to change either are endless arguments just waiting to happen. It can also raise delicate questions about the balance between court and legislature – which, thankfully, this case didn’t.