In Re:  Amy Jo Edwards, petitioner, Respondent, vs. Joseph Jamarr Edwards, Appellant.

In Re:  Amy Jo Edwards, petitioner, Respondent, vs. Joseph Jamarr Edwards, Appellant. A04-889, Court of Appeals Unpublished, January 18, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-889

 

In Re:  Amy Jo Edwards, petitioner,

Respondent,

 

vs.

 

Joseph Jamarr Edwards,

Appellant.

 

Filed January 18, 2005

Affirmed Willis, Judge

 

Carver County District Court

File No. FX-02-1921

 

Amy Jo Edwards, 16855 Embers Avenue, Farmington, MN  55024 (pro se respondent)

 

Bradford Colbert, Legal Assistance to Minnesota Prisoners, William Mitchell College of Law, Sunny Mockabee, certified student attorney, 875 Summit Avenue, Room 254, St. Paul, MN  55105 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Toussaint, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges the district court's order denying his request for blood or genetic paternity tests to determine whether he is the biological father of J.J.E.  Although we conclude that the district court inappropriately applied Minn. Stat. § 257.57, subd. 1(b) (2002), we also conclude that appellant's affidavit does not set forth the facts required by statute to compel the court to authorize paternity testing.  Because the district court did not err by denying appellant's motion for blood or genetic paternity tests, we affirm.

FACTS

J.J.E. was born to respondent Amy Jo Edwards on April 20, 2000.  Respondent and appellant Joseph Jamarr Edwards were unmarried at the time of the child's birth, but appellant signed a recognition of parentage on April 21, 2000, and he also is named as the father on the child's birth certificate. 

            Appellant and respondent were married on August 29, 2000.  In October 2002, respondent filed a petition for the dissolution of the marriage and for a declaration that appellant is the father of J.J.E.  In his answer, appellant questions his paternity of J.J.E. 

Appellant filed a motion requesting blood or genetic testing for the purpose of determining if he is J.J.E.'s biological father, asserting in a supporting affidavit that he is not certain that he is.  But the only reason he provides for this uncertainty is that "a number of sources" have told him "that there is a strong possibility that [he] is not [J.J.E.'s] father."  Appellant also claims in his brief that respondent admits that there is a possibility that appellant may not be J.J.E.'s father. 

Respondent filed a countermotion and states in her supporting affidavit that she did not have sexual intercourse with anyone other than appellant around the time that J.J.E. was conceived, that she has absolutely no reason to believe that anyone other than appellant could be J.J.E.'s father, and that she thought it "would be harmful to take the small risk" that their son could lose the only father he has known.

Relying on Minn. Stat. § 257.57, subd. 1(b) (2002), the district court denied appellant's motion and concluded that appellant had failed to allege facts sufficient to raise doubts that he is the child's father.  Appellant sought and was denied discretionary review of this order.  Subsequently, a dissolution judgment incorporating the marital termination agreement was filed.  Both the agreement and the judgment reserve the issue of the paternity of J.J.E. until resolution of the appellate process in this case.  This appeal follows. 

D E C I S I O N

Appellant argues that the district court erred by denying his motion for paternity testing.  A district court's decision on a motion requesting paternity testing is governed by the Minnesota Parentage Act.  "[I]nterpretation of the Minnesota Parentage Act . . . is a question of law this court reviews de novo."  Dorman v. Steffan, 666 N.W.2d 409, 411 (Minn. App. 2003). 

A district court is required to compel blood or genetic paternity testing when an alleged father files an affidavit setting forth the requisite facts.  Frieson v. Pahkala, 653 N.W.2d 199, 201 (Minn. App. 2002).  The Parentage Act provides that:

            The court or public authority may, and upon request of a party shall, require the child, mother, or alleged father to submit to blood or genetic tests.  A mother or alleged father requesting the tests shall file with the court an affidavit either alleging or denying paternity and setting forth facts that establish the reasonable possibility that there was, or was not, the requisite sexual contact between the parties.

 

Minn. Stat. § 257.62, subd. 1(a) (2002) (emphasis added). 

Here, appellant requested paternity testing and provided the district court with an affidavit denying paternity.  Appellant argues that the district court was therefore required to compel blood or genetic tests to determine paternity.  But the statute requires that the affidavit set forth sufficient facts to establish the reasonable possibility that there was not the requisite sexual contact between the parties.  Id.; see Frieson, 653 N.W.2d at 201-02.  Appellant's affidavit does not set forth such facts.

The district court must assume the truth of the affidavit; it may not exercise discretion, make credibility determinations, or consider whether compelling paternity tests would be in the child's best interests.  Frieson, 653 N.W.2d at 202.  Here, the only facts alleged in appellant's affidavit supporting his motion for paternity testing are: (1) that J.J.E. was born on April 20, 2000; (2) that J.J.E. was born before appellant and respondent's marriage; (3) that appellant is uncertain that he is J.J.E.'s biological father; and (4) that appellant has been told by a number of sources that there is a strong possibility that he is not J.J.E.'s father.

Appellant's affidavit fails to set forth any facts establishing the reasonable possibility that there was not the requisite sexual contact between him and respondent.  Because appellant does not set forth the requisite facts in his affidavit, the district court did not err by denying his motion requesting paternity testing.

The district court relied on Minn. Stat. § 257.57, subd. 1(b) (2002), to deny appellant's motion for blood or genetic tests to determine paternity.  Under this statute, a party, such as appellant, who is presumed to be the child's father under section 257.55, subd. 1(c),[1] may not bring an action for the purpose of declaring the nonexistence of the father-child relationship more than three years after the child's birth.  Minn. Stat. § 257.57, subd. 1(b).  But appellant did not bring an action to declare the nonexistence of his paternity of J.J.E.  Rather, he moved to request blood or genetic paternity testing in response to respondent's request in the dissolution petition for a declaration that appellant is the father of J.J.E.  A party to a dissolution may join an action to declare paternity or non-paternity with the action for dissolution.  Minn. Stat. § 257.59, subd. 1 (2002).  Paternity is an issue in every dissolution action.  Warhol v. Warhol, 464 N.W.2d 574, 577 (Minn. App. 1990), review denied (Minn. Mar. 15, 1991). 

Although we disagree with the district court's application of section 257.57, subd. 1(b), we conclude that the error was harmless because appellant's affidavit fails to satisfy the requirements of section 257.62, subd. 1(a).  The district court did not err by denying appellant's request for paternity testing.

Affirmed.

[1]

A man is presumed to be the biological father of a child if: After the child's birth, he and the child's mother have married . . . and, he has acknowledged his paternity of the child in writing filed with the state registrar of vital statistics; with his consent, he is named as the child's father on the child's birth record; or he is obligated to support the child under a written voluntary promise or by court order.

 

Minn. Stat. § 257.55, subd. 1(c) (2002).