In Re The Parentage Of A.m.c. (Majority)

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FILED CCHJRT OF APPEALS DIVISIONTT 2 f4 AUG -- 5 AM 10 : 140 STATE OF WASHINGTON BY IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II No. 44546 -8 -II In re the Matter of the Parentage of A.M.C. GREGORIO J. MERINO GONZALEZ, Petitioner, v. UNPUBLISHED OPINION SOCORRO CONTRERAS SALDIVAR, Respondent. JOHANSON, C. J. . This case involves the efforts of Gregorio J. Merino Gonzalez Merino) to disestablish himself as the father of A.M.C. 1 Merino appeals from the superior court' s denial of his motion to revise the court commissioner' s order. The court commissioner' s order denied Merino' s disestablishment petition and denied Merino' s motion to order genetic testing. Merino argues that ( 1) he was defrauded into believing he was A. M.C.' s father, ( 2) genetic testing was in the best interests of the child, and ( 3) the superior court' s denial infringed on 1 A.M.C.' We refer s due process to A.M. C., rights. a minor, by We reject his claims. We hold that there was no fraud, and his initials to protect his privacy. No. 44546 -8 - II therefore, Merino' s claims are time barred. We further hold that A.M.C.' s due process rights are not at issue in this action. Accordingly, we affirm. FACTS AND PROCEDURAL HISTORY Because the record in this case is sealed, we recite the facts only as necessary to the A.M.C.' analysis. began a new s mother, relationship informed Merino. voluntarily with Merino. Soon after, Contreras learned that she was pregnant and Merino did not ask who the father was, and at no time during Contreras' s did the pregnancy Socorro Contreras Saldivar ( Contreras), ended one relationship and . couple discuss A.M.C.' signed an affidavit of paternity. s parentage. When A.M. C. was born, Merino A valid acknowledgment of paternity was filed on January 3, 2012. In Contreras told Merino that he February, was not A.M.C.' s father. Nevertheless, Merino took no action until August 28, 2012, when he filed a petition challenging his prior acknowledgment of paternity. He alleged that he had signed the acknowledgment on the basis of fraud. On December 13, 2012, Merino moved to rescind his acknowledgment of paternity, dismiss himself as the alleged father, and remove himself from A.M.C.' s birth certificate. A court commissioner denied Merino' s motions. Merino moved to revise the court commissioner' s order, and the Superior Court denied the motion for revision. This appeal timely followed. ANALYSIS Merino argues that he is exempt from the 60 -day statutory time bar because Contreras obtained his acknowledgment possible father and did failed to prove fraud by not of paternity through fraud she knew that there was another disclose that information to Merino. clear and convincing evidence. 2 The State argues that Merino We agree with the State and hold that No. 44546 -8 -II Merino failed to prove the existence of any representation of existing fact, therefore his fraud claim fails and the time bar controls.2 I. STANDARD OF REVIEW AND RULES OF LAW This case 26. 26 RCW. All primarily involves analysis as interpreting to the meaning 155 Wn.2d 374, 386, 119 P. 3d 840 ( 2005). the Uniform Parentage Act of a statute is de novo. of 2002 ( UPA), ch. In re Parentage of J.M.K., This case also involves an allegation of civil fraud. The party claiming fraud has the burden of proving every element of fraud by clear and convincing evidence. Beckendorfv. Beckendorf, 76 Wn.2d 457, 462, 457 P. 2d 603 ( 1969). The UPA UPA allows a acknowledgment controls all actions to man of become paternity. to establish or the " acknowledged RCW 26. 26. 011( 1), . The disestablish paternity in Washington. father" 300. of a child by signing an Once an acknowledged father is established, he only has a limited time to rescind the acknowledgment of paternity or otherwise challenge the paternity of the child. RCW 26. 26. 540. An acknowledged father must commence any proceeding seeking to rescind the acknowledgment or denial or challenge the paternity of the child" emphasis within the time limits described in RCW 26. 26. 330 or . 335. RCW 26. 26. 540( 1) Normally, an acknowledged father has 60 days from the date his added). paternity became effective to commence the court proceeding. RCW acknowledgment of 26. 26. 330( 1)( After that time has passed, an acknowledged father may only challenge his a). acknowledgment of within 2 four paternity "[ years after the o] n the basis acknowledgment of fraud, duress, or material mistake of is filed. RCW 26. 26. 335( 1)( a), ( fact" and b). Because we hold that Merino' s action was time barred, we do not reach his arguments on the merits. However, we briefly raise and dismiss Merino' s constitutional issues. 3 No. 44546 -8 - II II. TIME BAR / FRAUD Merino admits that he did not commence this proceeding within the 60 -day time bar of RCW 26. 26. 330. Indeed, while his acknowledgment of paternity became effective on January 3, 2012, he did challenge not his paternity acknowledgment until August 28, 2012. Instead he argues that his paternity acknowledgment was obtained through Contreras' s fraud and, thus, his action was timely RCW 26. 26. 335( 1)( under As the State correctly points out, civil existing fact; ( 2) materiality; ( 3) the speaker that it should plaintiff' s reliance on damages suffered 2008) ( quoting be proven by element of by the Stiley v. clear and falsity; ( 4) of the plaintiff. '' nine elements: "`( speaker' s 1) representation of an its falsity; ( 5) ignorance of knowledge plaintiff; ( 6) plaintiff s of its intent of falsity; ( 7) 8) plaintiff' s right to rely upon it; and ( 9) Adams v. King County, 164 Wn.2d 640, 662, 192 P. 3d 891 486, evidence. fraud is fatal to recovery. prove the representation; ( Block, 130 Wn.2d convincing fraud has by the acted upon the truth 505, 925 P. 2d 194 ( 1996)). Each element must 462. The absence of any Beckendorf, 76 Wn.2d at Puget Sound Nat' l Bank v. McMahon, 53 Wn.2d 51, 54, Because Merino is challenging his paternity acknowledgment, it is his 330 P. 2d 559 ( 1958). burden to be For the following reasons, we disagree. a). fraud. element representation And because Merino cannot prove the first RCW 26. 26. 335( 2). of an existing fact we reject his fraud claim without analyzing the remaining elements. III. REPRESENTATION OF AN EXISTING FACT Generally, fraud not constitute fraud Privette, 12 Wn. requires an affirmative representation. unless App. the alleged defrauder is 142, 147, 529 P. 2d 23 ( 1974); 132 Wash. 369, 372, 231 P. 952 ( 1925). Silence as to a material, fact does under a special duty to disclose. Kaas v. Farmers' State Bank ofNewport v. Lamon, Such a duty to disclose may arise by statute. Kaas, 12 4 No. 44546 -8 -II Wn. App. in which confidence is reposed, and in which dominion and influence resulting relationship "` from More generally, a duty to disclose may be found when the parties have a 149 -50. at confidence such may be exercised Wn.2d 536, 550, 219 P. 2d 574 ( 1950) ( have a 1170 ( 1980). party' one person over another. "' Salter v. Heiser, 36 quoting Zimmerman v. Bitner, 79 Md. 115, 28 A. 820, For example, silence may constitute a fraudulent misrepresentation when the 821 ( 1894)). parties by fiduciary relationship. Liebergesell v. Evans, 93 Wn.2d 881, 889 -90, 613 P. 2d Another example of a duty to disclose arises where one party relies on the other s superior knowledge or experience. Boonstra v. Norton, Inc., 64 Wn.2d 621, 625, Stevens - 393 P. 2d 287 ( 1964). Here, the record reveals no affirmative representation by Contreras that Merino was the father. Indeed, at no time during Contreras' s pregnancy did the couple discuss who A.M.C.' s father might be. Rather, Merino argues that Contreras committed fraud when she failed to reveal that there was another potential one' s sexual Contreras' s father. But no Washington authority establishes a duty to reveal history. Nor can such a duty be inferred from the special nature of Merino and relationship. It is true that Merino and Contreras were not arm' s length actors; their romantic relationship may have given them cause to trust each other to an extent. But the sealed record clearly shows that it was Merino, not Contreras, who held the knowledge and influence in While only Contreras could know with certainty whether there was another the relationship. possible father, Merino had much more life experience and experience with pregnancy than did The balance of power in the relationship strongly favored Merino, and Contreras was Contreras. under no duty convincing to make evidence special disclosures to him. that Contreras represented an Merino could not prove by clear and existing fact. No. 44546 -8 -II Because a plaintiff must prove all of the elements of fraud, Merino' s failure to prove an existing fact affirmative representation of an do not reach the remaining elements of means that his fraud claim fails at the outset. We We hold that Merino' s petition to disestablish fraud. paternity is time barred, and we do not reach the merits of Merino' s petition. IV. SUBSTANTIVE DUE PROCESS Merino fundamental father argues right to that the court' s an accurate of parental rights. Br. of adjudication determination Appellant at 14. of of paternity deprived A.M. C. of his paternity" and deprived the other potential The State argues that Merino cannot raise the rights of the same .child he is attempting to disown. We agree with the State' s position, but for a different the disestablishment of paternity does not implicate the rights of nonparties. reason First, it is unlikely that. Merino has standing to raise the issue of the other potential father' s constitutional 1218 ( 1996) ( 1973)). rights. See City of Seattle v. Montana, 129 Wn.2d 583, 598, 919 P. 2d citing Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S. Ct. 2908, 37 L. Ed. 2d 830 Second, a different division of this court has rejected the argument that a petition to disestablish paternity implicates the child' s due process rights. In re Parentage of C.S., 134 Wn. App. 141, 152, 139 P. 3d 366. (2006). This is because the child is not a party and may bring his own action to establish his father' s identity at any time. Parentage of C.S , 134 Wn. App. at 152 citing RCW 26. 26. 505, . 530( 1)). 6 No. 44546 -8 -II As in Parentage of C.S., A.M. C. is found, A.M. C. is free to only parties " other bring than the an action child." to not a party to this action. 3 establish parentage. RCW 26. 26. 540( 2). If A.M.C.' s true father is The statute of limitations binds A.M.C.' s due process rights are not at issue and we reject Merino' s constitutional arguments. We affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. We concur: 3 certain may be bound by a " determination of parentage" in determination of parentage. That 26. 26. 630( 2). But this action is not a A child statute as " circumstances. RCW term is defined by the the establishment of the parent -child relationship by the signing of a valid acknowledgment of paternity under RCW 26.26. 300 through 26. 26. 375 or adjudication by the court." RCW 26. 26. 011( 7). An action to disestablish paternity does not implicate RCW 26. 26. 630. 7

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