Parentage of M.S.
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 54794-1-I
Title of Case: Kevin Hampson, Appellant v. Shawn and David
Snell, Respondent
File Date: 07/18/2005
SOURCE OF APPEAL
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Appeal from Superior Court of King County
Docket No: 04-5-16133-0
Judgment or order under review
Date filed: 07/21/2004
Judge signing: Hon. Joan E Dubuque
JUDGES
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Authored by Susan Agid
Concurring: Anne Ellington
Ann Schindler
COUNSEL OF RECORD
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Counsel for Appellant(s)
Shelby R Frost Lemmel
Wiggins & Masters PLLC
241 Madison Ave N
Bainbridge Island, WA 98110-1811
Paige Diana Haley
Lutz Law Office PS
1607 341st Pl S
Federal Way, WA 98003
Kenneth Wendell Masters
Attorney at Law
241 Madison Ave N
Bainbridge Island, WA 98110-1811
Charles Kenneth Wiggins
Attorney at Law
241 Madison Ave N
Bainbridge Island, WA 98110-1811
Counsel for Respondent(s)
Margaret Doyle Fitzpatrick
Michael W Bugni & Associates
11320 Roosevelt Way NE
Seattle, WA 98125
Jerome Chilwell Scowcroft
Attorney at Law
215 110th Ave SE
Bellevue, WA 98004-6331
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Parentage of M.S., )
)
A Minor Child. ) No. 54794-1-I
)
KEVIN HAMPSON, ) DIVISION ONE
)
Appellant, )
)
v. )
) PUBLISHED OPINION
SHAWN M. SNELL and DAVID SNELL, )
) FILED: July 18, 2005
Respondents. )
)
AGID, J. -- Kevin Hampson filed a petition to establish the parentage
of MS, his former paramour's daughter. The trial court dismissed the
petition, finding it untimely under a recently-enacted limitations period
found in RCW 26.26.530, and Hampson appeals. We conclude that because MS
was born while her mother was married to another man and that man was
ordered to pay child support to MS when the two divorced, MS has an
adjudicated father. Therefore the applicable statute of limitations is
governed by RCW 26.26.540, and the petition was timely under that statute.
Alternatively, the petition was timely under RCW 26.26.530 because the
limitations period did not begin to run until the statute was enacted. We
reverse and remand for further proceedings.
FACTS
David and Shawn Snell were married in 1989. Beginning in 1995, Shawn
had a sexual relationship with Kevin Hampson, a married man who lived next
door to the Snells. In April 1997, David and Shawn had a son, JS.1 In
September 1999, Shawn became pregnant again and told Hampson that he may be
the biological father. On June 8, 2000, MS was born. MS lived with and
was raised by David and Shawn.
In February 2002, Shawn filed for divorce. In September of that year,
Hampson and Shawn became engaged; and in December, the two moved in
together. The relationship quickly became strained, and they separated one
month later. In January 2003, David found out about Shawn's affair with
Hampson and learned that he may not be MS's biological father. In February
2003, Hampson filed a petition to establish the parentage of MS. But one
month later, Hampson and Shawn reconciled, and Hampson voluntarily
dismissed the petition.2 In April 2003, the Snells' divorce became final,
with the divorce decree naming Shawn primary custodian of JS and MS,
granting David substantial visitation rights, and ordering David to pay
child support. In July 2003, Hampson's divorce became final.
Between May 2003 and January 2004, Hampson and Shawn took JS and MS on
vacations to Reno, Washington D.C., Disneyland, and Mexico. At least one
of these vacations involved spending time with Hampson's parents, brother,
and nephews. On other occasions, Hampson's family traveled to Seattle to
spend time with Hampson, Shawn, JS, and MS. In April 2004, Hampson and
Shawn again moved in together. But, three weeks later, they again
separated. Hampson has not had contact with MS since May 2004.
On May 28, 2004, Hampson filed this petition to again establish MS's
parentage. Both Shawn and David oppose the petition, alleging that Hampson
is an alcoholic, has been violent with Shawn, and has frequently stalked
Shawn and the children.3 Shawn says that she fears for her and her
children's safety.
In June 2004, Shawn and David moved to dismiss Hampson's petition,
arguing it was barred by the statute of limitations. A Court Commissioner
granted the motion, finding that the petition was time-barred under RCW
26.26.530. A Superior Court judge agreed and denied Hampson's motion to
revise the Commissioner's order. Hampson appeals.
DISCUSSION
I. Hampson's Parentage Petition and Statutes of Limitations
Hampson first argues that the trial court erred by dismissing his petition
as time-barred. We review a trial court's decision to dismiss a case on
statute of limitations grounds de novo.4 Despite the grounds on which
Shawn and David brought their motion, the parties did not focus on the
statute of limitations in the trial court. Instead they primarily argued
about whether Hampson had a common law claim that might be exempt from the
limitations period. While we typically do not address issues raised for
the first time on appeal,5 we will address new issues that affect a party's
ability to maintain a cause of action.6
A. RCW 26.26.540
We must first determine which of two statutes of limitations in
Washington's Uniform Parentage Act (UPA)7 applies in this case. RCW
26.26.530 provides that an action to adjudicate the parentage of a child
having a presumed father must be commenced within two years of the child's
birth.8 The trial court dismissed Hampson's petition under this statute.
RCW 26.26.540 states that an action to adjudicate the parentage of a child
having an acknowledged or adjudicated father must be commenced within two
years of the acknowledgment or adjudication.9 In order to determine which
statute applies, we must first determine whether David Snell is a presumed,
acknowledged, or adjudicated father.
A presumed father is 'a man who, under RCW 26.26.116, is recognized to be
the father of a child until that status is rebutted or confirmed in a
judicial proceeding.'10 Under RCW 26.26.116(1)(a), a man is presumed to be
a child's father if he and the child's mother are married to each other,
and the child is born during the marriage. An acknowledged father is a man
who has established a father-child relationship with the child by signing
and executing an acknowledgment of paternity.11 And an adjudicated father
is 'a man who has been adjudicated by a court of competent jurisdiction to
be the father of a child.'12 David is not an acknowledged father, but would
be MS's presumed father, since MS was born while Shawn and David were
married. But under RCW 26.26.630(3)(b), a man becomes an adjudicated
father if he is involved in a marital dissolution proceeding and the
court's final order provides that he must support the child. When David
and Shawn got divorced, the court ordered David to pay child support for
MS. Therefore, David is now MS's adjudicated father.
The Snells argue that because MS was born during their marriage, David is a
presumed father, thus requiring Hampson to file his parentage petition
within two years of MS's birth under RCW 26.26.530. But an adjudication
under RCW 26.26.630 rebuts a presumption of paternity,13 and therefore David
is clearly an adjudicated father.14 The Snells contend that David's status
as a presumed father cannot be rebutted because no admissible genetic
testing results have been introduced. They rely on RCW 26.26.600, which
provides that the paternity of a child having a presumed father may be
rebutted only by admissible results of genetic testing that exclude that
man as the father of the child. But the Snells misinterpret the statute.
It states, 'The paternity of a child having a presumed, acknowledged, or
adjudicated father may be disproved only by admissible results of genetic
testing{.}'15 This statute 'establishes the controlling supremacy of
admissible genetic test results in the adjudication of paternity.'16 It
does not preclude adjudication as a means of rebutting the presumption of
paternity. RCW 26.26.600(1) does not trump RCW 26.26.630(3)(b)'s clear
statement that parentage is 'adjudicated' if a court requires a man,
through dissolution proceedings, to provide child support. Nor does it
defeat RCW 26.26.116(2)'s clear statement that a presumption of paternity
may be rebutted by an adjudication. To interpret the statutes as the
Snells argue would be to render both superfluous, which we cannot do.17
We conclude that David Snell is an adjudicated father, and therefore RCW
26.26.540 establishes the applicable limitations period for Hampson's
petition. Under that statute, Hampson's petition must have been filed
within two years of the effective date of the adjudication. The Snell
divorce became final in April 2003, and Hampson filed his petition in May
2004. The petition was timely filed.
B. RCW 26.26.530
Even if David were a presumed father so that RCW 26.26.530 applied,
Hampson's claim was still timely.18 RCW 26.26.530 became effective on June
13, 2002.19 Before that date, there was no time limit for filing a
parentage petition.20 It is well established that when the Legislature
enacts a shortened statute of limitations, the time for bringing claims
that accrued before the new law's enactment begins to run on the new
statute's effective date.21 Hampson's claim began accruing on June 8, 2000,
when MS was born. If the court were to apply RCW 26.26.530 to Hampson's
claim, the claim would have expired on June 8, 2002, before the statute of
limitations even took effect. But the new limitations period did not begin
to run until June 13, 2002, the statute's effective date, and Hampson had
until June 13, 2004, to file his petition. Because he filed his petition
in May 2004, it would not have been barred by the statute of limitations.22
II. Hampson's Common Law Claim
Hampson next argues that he had a common law right to petition for
parentage as a de facto or psychological parent, and that the trial court
erred by dismissing his petition without ruling on his common law claim.
We need not reach this argument, as Hampson has a viable claim under the
UPA.23
Hampson also challenges the trial court's unwillingness to order a DNA test
or appoint a guardian ad litem to represent MS's interests, and argues that
the court's failure to do these things violated his fundamental rights and
MS's constitutionally protected interest in an accurate paternity
adjudication. But because the trial court dismissed Hampson's petition on
statute of limitations grounds, it was not required to order a DNA test or
appoint a guardian ad litem. On remand, the trial court will take the
steps necessary to adjudicate the merits of Hampson's parentage petition.
III. Alternate Grounds for Affirming the Trial Court
The Snells encourage us to consider Shawn's wishes and presume that she is
acting in MS's best interests by opposing Hampson's petition. But that is
not at issue here. The only issue presented to us is whether the trial
court erred by dismissing Hampson's petition on statute of limitations
grounds. The mother's wishes and the child's best interests should be
considered in conjunction with the merits of the petition and the remedy,
if any.
The Snells also argue that Hampson's action is barred because the
Commissioner determined that Hampson does not qualify as a de facto or
psychological parent. But this assertion misrepresents the record. During
the arguments in the lower court, the Commissioner inquired about whether
MS ever lived with Hampson or paid child support, and the attorneys and
parties answered these questions briefly. The Commissioner then stated
that Hampson's common law claim differed from the cited case law because he
did not financially support MS, nor did MS ever live with him. But she
declined to rule on the issue, stating 'So I think the cases are clearly
distinguishable, and I think the statute controls. But I will wait for the
Supreme Court to make a decision on that, and I'm going to dismiss the
action with prejudice.' In her Findings of Fact and Conclusions of Law,
the Commissioner dismissed the case only on statute of limitations grounds.
And the superior court affirmed the dismissal, again solely on the statute
of limitations issue. Thus, while the Commissioner may have opined that
Hampson's common law claim would fail, the Commissioner never made a
finding that Hampson failed to qualify as a de facto or psychological
parent.
The Snells argue that Hampson waived whatever interest he may have had in
his action by waiting too long to establish a relationship with MS. They
also ask us to affirm the trial court on the basis that if genetic testing
were to take place and indicate that Hampson was the father, certain
presumptions would outweigh the presumption of parentage created by genetic
testing. But these arguments are premature and would require us to find
facts and make a decision on the merits. We can do neither as this is the
province of the trial court.
We reverse and remand for further proceedings and deny the Snells' request
for attorney fees on appeal.
WE CONCUR:
1 The parties agree that JS is David's biological son.
2 The petition was dismissed without prejudice.
3 Hampson vigorously disputes these allegations.
4 Ellis v. Barto, 82 Wn. App. 454, 457, 918 P.2d 540 (1996) (citing
Syrovy v. Alpine Res., Inc., 122 Wn.2d 544, 548 n.3, 859 P.2d 51 (1993)),
review denied, 130 Wn.2d 1026 (1997).
5 RAP 2.5(2).
6 Jones v. Stebbins, 122 Wn.2d 471, 479, 860 P.2d 1009 (1993) (citing
New Meadows Holding Co. v. Wash. Water Power Co., 102 Wn.2d 495, 498, 687
P.2d 212 (1984)).
7 Chapter 26.26 RCW.
8 RCW 26.26.530(1).
9 RCW 26.26.540(2).
10 RCW 26.26.011(15).
11 RCW 26.26.011(1); RCW 26.26.300-.375.
12 RCW 26.26.011(2).
13 RCW 26.26.116(2).
14 The Snells argue that RCW 26.26.630 exists not to justify changing a
father's status from presumed to adjudicated for the purpose of reviving an
expired statute of limitations, but rather to 'define the imposition of a
support obligation as a triggering event to start the statute of
limitations in section 540 for the person ordered to pay support.' Not
only does this argument unnecessarily confuse the issue, but it also
ignores the section's official comment, which states that the subsection
'resolves whether a divorce decree constitutes a finding of paternity.
This subsection provides that a decree is a determination of paternity if
the decree states that the child was born of the marriage or grants the
husband visitation or custody, or orders support. This is the majority
rule in American jurisprudence.' Comment, Uniform Parentage Act sec. 637
(2000).
15 RCW 26.26.600(1).
16 Comment, Uniform Parentage Act sec. 631 (2000).
17 See Rest. Dev., Inc. v. Cananwill, Inc., 150 Wn.2d 674, 682, 80 P.3d
598 (2003) (when construing a statute, a court should not render any
portion meaningless or superfluous) (citing State v. J.P., 149 Wn.2d 444,
450, 69 P.3d 318 (2003)).
18 We note that when Hampson filed his first petition, the Snells'
divorce had not yet been adjudicated. Therefore, at that time, RCW
26.26.530 would have been the applicable statute of limitations. We
presume this is why the parties did not focus on RCW 26.26.540 in the trial
court.
19 RCW 26.26.904.
20 Former RCW 26.26.060 (2000) (an action may be brought 'at any time
for the purpose of declaring the existence or nonexistence of the father
and child relationship.'), repealed by Laws of 2002, ch. 302, sec. 711.
21 See Merrigan v. Epstein, 112 Wn.2d 709, 717, 773 P.2d 78 (1989) (citing
O'Donoghue v. State, 66 Wn.2d 787, 791-92, 405 P.2d 258 (1965); Earle v.
Froedtert Grain & Malting Co., 197 Wash. 341, 344-45, 85 P.2d 264 (1938);
Hanford v. King County, 112 Wash. 659, 661, 192 P. 1013 (1920); King County
Boundary Review Bd. v. City of Auburn, 45 Wn. App. 363, 366-67, 725 P.2d
451 (1986); Torkelson v. Roerick, 24 Wn. App. 877, 879-80, 604 P.2d 1310
(1979)). See also 1000 Virginia Ltd. P'ship v. Vertecs Corp., Wn. App.
, P.3d , 2005 WL 1323344 (citing O'Donoghue, 66 Wn.2d at 790; Lane
v. Dep't of Labor & Indus., 21 Wn.2d 420, 423, 151 P.2d 440 (1944)); State
v. T.K., 94 Wn. App. 286, 291, 971 P.2d 121 (citing Merrigan, 112 Wn.2d
709), aff'd, 139 Wn.2d 320, 987 P.2d 63 (1999).
22 The Snells argue that to hold that Hampson's claim is not time-
barred under RCW 26.26.530 would be to ignore the plain language of RCW
26.26.904, which states that '{a} proceeding to adjudicate parentage which
was commenced before June 13, 2002, is governed by the law in effect at the
time the proceeding was commenced.' According to the Snells, the
limitations period of RCW 26.26.530 must apply because Hampson filed his
petition after June 13, 2002. But RCW 26.26.904 is designed to establish
the effective date of the new statute of limitations. It does not dictate
which of two statutes of limitations applies in an action that began to
accrue before the new limitations period was enacted.
23 See In re Parentage of L.B., 121 Wn. App. 460, 476 n.2, 89 P.3d 271
(a common law remedy survives a statutory remedy only if the Legislature
has not expressed its intention to preempt the common law remedy and if the
common law remedy fills a void in the law), review granted, 152 Wn.2d 1013
(2004).