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# 83 - Setting Aside Paternity Judgments (ORS 109.072)

Monograph # 83                                                 August, 2009

SETTING ASIDE PATERNITY JUDGMENTS (ORS 109.072)

DNA Test Proves It’s Not My Child After All:  
Set Aside the Judgment (and give me back the cigar).

© Lawrence D. Gorin, Attorney at Law, Portland, Oregon                           

Introduction

    ORS 109.072 (2007 Or Laws ch 454, §9; effective January 1, 2008), creates a specific statutory procedure for vacating or setting aside “the paternity determination of a paternity judgment” (including any child support obligations established in the paternity judgment), thereby resulting in the ”disestablishment” of legal paternity.  The proceeding must be commenced within the time limitations specified in the statute and may be undertaken only for the specific reasons stated therein. The statute details the procedure to be followed, defines the substantive grounds for granting relief, establishes time limitations, and prescribes how the judgment will be implemented.

Background

    Prior to the enactment of ORS 109.072, a post-judgment attack on a judgment that established or recognized a man’s paternity of a child, obtained in a proceeding in which blood tests were not performed and the issue of paternity was not challenged, was generally unsuccessful, particularly in the absence of any showing of extrinsic fraud.  Even evidence of perjury and proof of biological nonpaternity were insufficient to overcome the finality of the prior judgment.  See McClain v. McClain, 155 Or App 258, 958 P2d 909 (1998); Sheehan and Sheehan, 123 Or App 449, 860 P2d 835 (1993).  See also Watson v. State of Oregon, 71 Or App 734, 694 P2d 560 (1985) (Surely, justice cannot be so blind. This is no way to create a father.”  Dissenting opinion of Judge Rossman, 71 Or App at 739.)

The statutory “fix”

    ORS 109.072, effective January 1, 2008, prescribes a specific procedural remedy that applies in situations in which, for example, a husband, in reliance on his wife’s representations as to his paternity of a child born to her during their marriage to each other, does not dispute the statutory presumption of his paternity of the child when the parties go through a marital dissolution proceeding.  As a result, the dissolution judgment by inference determines the husband’s paternity and provides the basis for imposing child support obligations.

      A similar situation often occurs in paternity establishment proceedings involving a child born out of wedlock, in which the putative father, relying on the representations of the child’s mother as to his paternity of the child, fails to respond to or otherwise dispute the legal action, resulting in a judgment establishing paternity being entered either by default of on an uncontested basis.  Under ORS 109.072, if the man subsequently discovers that he may not be the child’s biological father, a remedial procedure to vacate or set aside the judgment is now available.

Repeal of the “conclusive presumption” paternity

    Prior to January 1, 2006, a man who was married to and cohabiting with his wife at the time his wife conceived a child was deemed as a matter of law to be the father of the child, provided the husband was not at the time of conception sterile or impotent.  Former ORS 109.070(1)(a) (2003).

     However, legislation enacted in 2005 temporarily repealed the “conclusive presumption” for two years, commencing January 1, 2006.  See Or Laws 2005, ch 160, §§ 11, 17 and 23.  Subsequent legislation enacted in 2007 and effective as of January 1, 2008, made the repeal permanent.  See Or Laws 2007, ch 454, § 1.

    NOTE:  Although denominated by former ORS 109.070(1)(a) [2003 ed.] as a “conclusive presumption,” it is better viewed as a substantive rule of law.  See Hodge and Hodge, 301 Or 433, 435-436, 722 P2d 1235 (1986).

    FURTHER NOTE:  The ORS codification arrangement is somewhat confusing.  The legislation that repealed the paternity establishment rule that was formerly codified as ORS 109.070(1)(a) also revised the “rebuttable presumption” rule that was previously codified as ORS 109.070(1)(b) and re-assigned it to be ORS 109.070(1)(a).  Practitioners should be careful to avoid confusing former ORS 109.070(1)(a) with current ORS 109.070(1)(a).

    In addition to making permanent the repeal of the conclusive presumption rule, Oregon Laws 2007, chapter 454, also created a new statutory procedure, codified as ORS 109.072, for obtaining a judgment of nonpaternity in cases involving paternity based on marital status.  The repeal of the conclusive presumption rule raises a question as to the continued applicability of the rule to actions commenced under ORS 109.072 that involve a child born at a time when the rule was in effect.

    Guidance on this question may be gleaned from State ex rel Juvenile Department of Lane County v. G.W., 217 Or App 513, 177 P3d 24 (2008), in which the trial court concluded that the version of ORS 109.070(1)(a) in effect at the time of child’s 2002 birth, ORS 109.070(1)(a) (2001), was controlling and that under that version of the statute, the man married to a child’s mother at the time of the child’s conception was conclusively presumed to be child’s father.  Father appealed.  The Court of Appeals reversed, holding that Oregon Laws 2005, chapter 160, which effectively repealed the “conclusion presumption” rule as of January 1, 2006, did not bar a judgment of nonpaternity even if the child as to whom nonpaternity is sought was conceived during marriage prior to January 1, 2006.

    “The text and context of Oregon Laws 2005, chapter 160, section 9, demonstrate a legislative intent to afford relief under that section to a ‘legal father’ for purposes of ORS 109.070(1) without regard to whether the child was born before the effective date of section 9 [January 1, 2006] or whether paternity was established by the statutory presumptions in effect before that date.”  217 Or App at 519.

    The legislature’s 2005 repeal of the conclusive presumption rule was reaffirmed with the legislature’s 2007 enactment of Oregon  Laws 2007, chapter 454, effective January 1, 2008.  The 2007 legislation created a new procedure, now codified as ORS 109.072, for challenging the marital presumption of paternity and obtaining a judgment of nonpaternity when specified statutory prerequisites are met, including genetic tests establishing that the man is not the child’s biological father.  It would appear that the appellate court’s ruling in G.W. as to the inapplicability of the former conclusive presumption rule to actions commenced after December 31, 2004, continues to apply to actions commenced under ORS 109.072 after on December 31, 2006.

The rest of the story

    Analysis of the specific provisions of ORS 109.072 are discuss in the following paragraphs.

    Definition of “paternity judgment.”  ORS 109.072(1)(b).  As used in the new law, “paternity judgment” means any judgment or administrative order that:
    (A) expressly or by inference determines the paternity of a child or imposes a child support obligation based on the paternity of a child; and
    (B) resulted from a proceeding in which blood tests were not performed and in which the issue of paternity was not challenged.  

    Included are judgments for dissolution of marriage as well as judgments based on administrative child support orders in which paternity was established (or determined) in the course of the proceeding, as allowed by ORS 416.430, with the administrative order then being certified to circuit court and entered as a court judgment.

    In marital dissolution cases, “paternity judgment” refers to the provision or aspect of the dissolution judgment the expressly or by inference determines and/or treats the husband as being the father of the wife’s child, i.e., the “paternity determination” of the “paternity judgment.”  Vacating the “paternity determination” of the “paternity judgment” does not result in vacating the entire judgment of dissolution of marriage.

    Form of remedy (petition or motion).  ORS 109.072(1)(c).  Relief under the ORS 109.072 may be in the form of a motion within a previously established case or in the form of a petition in an entirely new proceeding.  As used in ORS 109.072(1)(c), “petition” means a petition or motion.

    Standing to seek relief.  ORS 109.072(2)(a).  A petition seeking relief under ORS 109.072 may be filed by any of the parties to the paternity judgment.  Standing to seek relief is also granted to the Department of Human Services (DHS) if the child is in the care and custody of DHS under ORS chapter 419B, as well as to the Division of Child Support (DCS) if the child support rights of the child or of one of the parties to the paternity judgment have been assigned to the state.

    Where to file.  ORS 109.072(2)(b).  The petition (or motion, as appropriate) may be filed in the circuit court proceeding in which the paternity judgment was entered, in a related proceeding or in a separate action.  A copy of the paternity judgment must be attached to the petition.  It is anticipated that relief under the new law will most often be in the form of a Motion to Vacate Paternity Determination filed within a previously established case.

    Time limitations and grounds of action.   ORS 109.072(2)(c)  If the ground for the petition is that the paternity determination was obtained by or was the result of:
mistake,
inadvertence,
surprise, or
excusable neglect,
the petition must be filed within one year after entry of the paternity judgment.  

    Time limitations and grounds of action.   ORS 109.072(2)(d)  If the ground for the petition is that the paternity determination was obtained by or was the result of:
fraud,
misrepresentation or
other misconduct of an adverse party,
the petition must be filed within one year after the petitioner discovers the fraud, misrepresentation or other misconduct.

    Contents of petition.  ORS 109.072(3)(a).  The petition must designate as parties all persons who were parties to the paternity judgment; the child if the child is a child attending school as defined in ORS 107.108; DHS if the child is in the legal care and custody of DHS under ORS chapter 419B; and the administrator of DCS if the child support rights of the child or of one of the parties to the paternity judgment have been assigned to the state.

    ORS 109.072(3)(b) and (c).  The petition must also provide the full name and date of birth of the child whose paternity was determined by the paternity judgment and must allege the facts and circumstances that resulted in the entry of the paternity judgment and explain why the issue of paternity was not contested.

    Service of summons and petition.  ORS 109.072(4).  After the petition has been filed, the petitioner must serve a summons and a true copy of the petition on all parties as provided in ORCP 7.

    Counsel for child.  ORS 109.072(5).  The law allows the court, on its own motion or on the motion of a party, to appoint counsel for the child.  Appointment of counsel is required if so requested by the child. A reasonable fee for an attorney so appointed may be charged against one or more of the parties or as a cost in the proceeding, but may not be charged against funds appropriated for public defense services.

    Blood tests.  ORS 109.072(6).  The court has discretionary authority to order the mother, the child and the man whose paternity of the child was determined by the paternity judgment to submit to blood tests.  In deciding whether to order blood tests, the court is required to consider the interests of the parties and the child and, if it is just and equitable to do so, may deny the request for blood tests. If the court orders blood tests, the court must also order the petitioner to pay the blood test costs.

NOTE:  This subsection pertains only to the court’s authority to render an order compelling submission to blood tests.  Blood tests may be, and often are, undertaken without a court order.  Blood test evidence derived from blood tests not performed pursuant to a court order is unaffected by this subsection and is admissible, provided such evidence satisfies the admissibility requirements of the Oregon Evidence Code.

    Findings and conclusions.  ORS 109.072(7).  Unless the court, upon giving consideration to the interests of the parties and the child, finds that to do so would be “substantially inequitable,” the court is required to vacate or set aside the paternity judgment, including provisions imposing child support obligations, and enter a judgment of nonpaternity if the court finds by a preponderance of the evidence that:
     (a) the paternity determination was obtained by or was the result of mistake, inadvertence, surprise or excusable neglect, or fraud, misrepresentation or other misconduct of an adverse party;
    (b) the mistake, inadvertence, surprise, excusable neglect, fraud, misrepresentation or other misconduct was discovered by the petitioner after the entry of the paternity judgment; and
    (c) blood tests establish that the man is not the biological father of the child.  In determining whether it would be “substantially inequitable” to deny the requested relief, the court is required to give consideration to the interests of the parties and the child.

    COMMENT:  This provision effectively allows the court to ignore and disregard factual and scientific evidence proving biological nonpaternity (and the consequential fact that some other man is the father of the child) if the judge is of the opinion that a decision based on truth and reality would be “substantially inequitable” to the interests of the parties and the child.  If relief is denied, existing support orders remain in effect, requiring the biological nonfather to continue paying money to support some other man’s child.

    NOTE:  Blood test evidence is a critical and essential element of the remedial procedure created by the new law.  The paternity judgment may not be vacated in the absence of blood test evidence establishing biological nonpaternity.  ORS 109.072(7)(c).  Conversely, if blood test evidence shows that the man may be the biological father of the child and that the cumulative paternity index based on the blood test evidence is 99 or greater, the court must deny the petition.  ORS 109.072(9).

    No distinction between intrinsic and extrinsic fraud.  ORS 109.072(8).  If the court finds that the paternity determination of a paternity judgment was obtained by or was the result of fraud, the court may vacate or set aside the paternity determination regardless of whether the fraud was intrinsic or extrinsic. This provision overcomes the present unexpressed restriction of ORCP 71 that limits fraud as a basis for vacating a judgment to only “extrinsic” fraud.

    COMMENT:  As a general rule of Oregon law, a judgment may not be vacated or set aside on the basis of fraud unless the fraud is found to be “extrinsic,” i.e., consisting of collateral acts not involved in the fact finder’s consideration of the merits of the case.  See Johnson v. Johnson , 302 Or 382, 384, 730 P2d 1221 (1986).  “Intrinsic” fraud, i.e., fraud occurring within the proceeding itself, does not provide a basis for setting aside or vacating a judgment.  See Watson v. State of Oregon, 71 Or App 734, 694 P2d 560 (1985); McClain v. McClain, 155 Or App 258, 259, 958 P2d 909 (1998).

    Denial of relief based on nonexclusionary blood test evidence.  ORS 109.072(9).  If the court finds, based on blood test evidence, that the man may be the biological father of the child and that the cumulative paternity index based on the blood test evidence is 99 or greater, the court shall deny the petition.

    Action upon default or stipulation, without blood tests.  ORS 109.072(10).   The court may vacate the paternity judgment and grant the relief authorized by the new law, without blood test evidence, upon a party’s default or by consent or stipulation of the parties.

    Form and content of judgment.  ORS 109.072(11).  If the court grants the petition, the judgment document:
    (a)  Must contain the full name and date of birth of the child whose paternity was established or declared by the paternity judgment;
    (b)  Must vacate and terminate any ongoing and future child support obligations arising from or based on the paternity judgment;
    (c)  May vacate or deem as satisfied, in whole or in part, unpaid child support obligations arising from or based on the paternity judgment; and,
    (d)  May not order restitution from the state for any sums paid to or collected by the state for the benefit of the child.

    Notice to Vital Records and Department of Justice; correction of birth record.  ORS 109.072(12).  If the court vacates or sets aside the paternity determination of a paternity judgment and enters a judgment of nonpaternity, the petitioner is required to send a court-certified true copy of the court’s judgment to the State Registrar of the Center for Health Statistics and to the Department of Justice as the state disbursement unit. Upon receipt of the court-certified true copy of the judgment entered under ORS 109.072, the state registrar is required to correct any records maintained by the state registrar that indicate that the male party to the paternity judgment is the father of the child.

    NOTE:  Although not specifically stated in ORS 109.072(12), it would appear that the intent of the requirement that a copy of the judgment be sent to the Department of Justice “as the state disbursement unit” is that the department will then adjust its child support payment account records.

    Attorney fees and costs.  ORS 109.072(13).  The court may award to the prevailing party a judgment for reasonable attorney fees and costs, including the cost of any blood tests ordered by the court and paid by the prevailing party.

    Judgment not a bar to future proceedings.  ORS 109.072 (14).  A judgment vacating or setting aside the paternity determination of a paternity judgment and determining nonpaternity is not a bar to further proceedings to determine paternity, as otherwise allowed by law.

        COMMENT:  Although a judgment “determining nonpaternity” under ORS 109.072 is not a bar to “further proceedings to determine paternity,” the defenses of issue preclusion (collateral estoppel) and claim preclusion (res judicata), if raised in such a further proceeding, may very well be dispositive.

    No proceedings if father is dead.  ORS 109.072(15).  If a man whose paternity of a child has been determined by a paternity judgment has died, an action under this section may not be initiated by or on behalf of the estate of the man.

    Other remedies still available.  ORS 109.072(16).  The statute does not limit the authority of the court to vacate or set aside a judgment under ORCP 71, to modify a judgment within a reasonable period, to entertain an independent action to relieve a party from a judgment, to vacate or set aside a judgment for fraud upon the court or to render a declaratory judgment under ORS chapter 28.

    Liberal construction.  ORS 109.072(17).  The new law is to be “liberally construed” to the end of achieving substantial justice.

###

LAWRENCE D. GORIN
Attorney at Law
521 S.W. Clay St., Suite 205
Portland, Oregon  97201
Phone:  503-224-8884
Fax:    503-226-1321
E-mail:  LDGorin@pcez.com
http://ldgorin.justia.net/index.html
http://www.divorcesource.com/OR/pages/ldgorin.html