Godin v. Godin

Annotate this Case

Godin v. Godin (97-147); 168 Vt. 514; 725 A.2d 904

[Filed 24-Dec-1998]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 97-147

Mark A. Godin Supreme Court

On Appeal from
v. Franklin Family Court

Rita Godin February Term, 1998

Linda Levitt, J.

Timothy J. Ryan of Brown, Cahill, Gawne & Miller, St. Albans, for
Plaintiff-Appellant.

Rita Godin, pro se, Enosburg, Defendant-Appellee.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

MORSE, J. The question presented is whether, six years after a final
divorce decree and adjudication of paternity, a father may disavow a child
born during the marriage and presumed for fourteen years to have been his.
We hold that he may not.

The family court denied plaintiff Mark Godin's motion to require
genetic testing to determine the paternity of Christina, the child born
while he was married to his former wife Rita Godin, and dismissed his
complaint seeking to set aside a child support order. Plaintiff contends
the court erred in concluding that the adjudication of paternity implicit
in the final divorce decree was res judicata and barred relitigation. We
affirm.(FN1)

The material facts are largely undisputed. Mother and plaintiff
shared a sexually intimate relationship in Vermont during the summer of
1981, while plaintiff was on leave from military service. On July 15,
plaintiff returned to his station in South Carolina. Subsequently, mother

told plaintiff she was pregnant when he returned to Vermont in November,
and they were married in December 1981. Mother gave birth to Christina on
May 18, 1982. Mother filed for divorce in 1989. In her complaint she
stated that there was one child, Christina, born of the marriage. A final
uncontested divorce hearing was held in April 1990, at which both parties
were present. The court adopted the parties' stipulation, and a final
order was issued in May 1990. Under the terms of the final divorce order,
mother was awarded custody and plaintiff was required to pay child support.

In the Fall of 1996, approximately six years after the divorce became
final, rumors within his family led plaintiff to suspect that he was not
Christina's biological father. He then reconsidered his earlier
relationship with mother and concluded he must not be the father because
ten months had elapsed between Christina's alleged conception and her
birth. As a result, he filed a pro se motion for genetic testing with the
family court. The court denied the motion, ruling that the test should
have been requested before the divorce became final. Plaintiff then
retained counsel and filed a complaint seeking relief from judgment based
on fraud upon the court. See V.R.C.P. 60(b). As part of this action,
plaintiff requested that the court order genetic testing and vacate those
provisions of the divorce order referring to him as the father of Christina
and requiring him to pay child support.

A hearing was held in March 1997. Plaintiff testified that until the
Fall of 1996, he believed Christina was his biological child and treated
her as such. He explained that he questioned his paternity only after
Christina began asking him if he was her biological father. Mother
testified that she was sexually intimate with another man prior to the
marriage while plaintiff was in South Carolina. She also testified that
when she informed plaintiff that she was pregnant, she "never stated who
was the father and who wasn't." In addition, she denied ever telling any
of plaintiff's relatives that plaintiff was not Christina's biological
father. Finally, she stated that although she was not opposed to genetic
testing, she was concerned about the impact such testing would have on her
then fifteen-year-old daughter who "has always thought that

[plaintiff] is her father."

The court appointed a guardian ad litem to represent Christina's
interests, and reset the hearing for April 1, 1997. At the April 1
hearing, plaintiff objected to the intended testimony of the guardian ad
litem on grounds that her testimony would relate hearsay evidence and would
introduce an irrelevant subject matter, namely, Christina's feelings about
genetic testing. The court declined to hear testimony from the guardian ad
litem and held that plaintiff's request for genetic testing was
time-barred. The court reasoned that plaintiff had an opportunity to
contest paternity in the original divorce proceeding or on appeal, and that
his failure to do so precluded him from challenging paternity at a later
date. Accordingly, the court concluded that plaintiff's motion to modify
child support, and his independent action of fraud upon the court, were
moot. This appeal followed.

Plaintiff contends that mother perpetrated a fraud upon the court
during the divorce proceedings by alleging in her complaint that Christina
was biologically her husband's and, because of such fraud, the trial court
should set aside any obligation to pay child support.

We agree with the trial court that both of plaintiff's claims involve
the same underlying issue: the conclusiveness of paternity findings and
implications in a divorce judgment. We have previously addressed this
issue. See Lerman v. Lerman, 148 Vt. 629, 629, 528 A.2d 1121, 1122 (1987)
(mem.). In Lerman, we held that a former husband was not entitled to
court-ordered genetic testing approximately ten years after his divorce
became final. See id. We reasoned that where no issue concerning
paternity was raised during a divorce proceeding and no appeal was taken
from the divorce action contesting paternity, the doctrine of res judicata
precluded a relitigation of paternity. See id. Plaintiff's appeal
implicitly requires us to reconsider our holding in Lerman.

V.R.C.P. 60(b) governs the granting of relief from judgment. Rule 60
is "substantially identical" to its federal counterpart, Fed. R. Civ. P.
60. See Reporter's Notes, V.R.C.P. 60. Under this rule, a court may grant
relief from a final judgment for "newly discovered evidence

which by due diligence could not have been discovered in time to move for a
new trial under Rule 59(b)" or for "fraud . . . misrepresentation, or other
misconduct of an adverse party." V.R.C.P. 60(b)(2)-(3). Plaintiff's claim
seems to be premised on two facts: mother's alleged ten-month gestation
period, and another sexual partner. This "newly discovered evidence" and
mother's failure to disclose it before their marriage constitutes the
alleged fraud. As expressly stated in the rule, however, a motion for
relief from judgment based on either of these grounds must be made within
one year after the judgment was entered. Plaintiff filed his motion for
relief from judgment approximately six years after the date of the
judgment. Thus, he was not entitled to relief under Rule 60(b)(2) or (3).

Apparently realizing that his claim is time-barred and thus not
cognizable under the above provisions, plaintiff contends that these
subsections are not controlling. Instead, he contends that mother's
alleged fraud was committed "upon the court" and therefore is not subject
to the same one year statute of limitations. Based on this
characterization, plaintiff's claim is governed by the catch-all provision
of Rule 60(b)(6), which provides that relief may be granted for "any other
reason justifying relief from the operation of judgment." The rule
explicitly provides that motions based on the catch-all provision "shall be
made within a reasonable period of time." V.R.C.P. 60(b). The rule also
states that there is no limit to "the power of a court to entertain an
independent action to relieve a party from a judgment . . . or to set aside
a judgment for fraud upon the court." Id.

As we explained in Levinsky v. State, 146 Vt. 316, 318, 503 A.2d 534,
536 (1985), "the independent action clause in Rule 60(b) simply preserves
the historical authority of the courts of equity to reform judgments in
special circumstances." (emphasis added) (internal quotation marks
omitted). "However, this catch-all provision is available only when a
ground justifying relief is not encompassed within any of the first five
classes of the rule." Id. at 317, 503 A.2d at 536 (internal quotation
marks omitted).

The first issue, then, is whether the fraud alleged here may properly
be characterized as

a fraud upon the court and therefore exempt from the one-year statute of
limitations. We conclude that to the extent mother's conduct was
fraudulent, if at all, it constituted fraud upon plaintiff, not upon the
court. The seminal decision in this area is Hazel-Atlas Glass Co. v.
Hartford-Empire Co., 322 U.S. 238 (1944). There, an attorney for the
Hartford-Empire Glass Company fabricated an article, claimed it was
authored by a former president of the Glass Workers' Union, and later used
the falsified article in a patent case before an appellate court to receive
a favorable judgment. The United States Supreme Court characterized the
fraud as "a wrong against the institutions set up to protect and safeguard
the public," id. at 246, distinguishing it from the "case of a judgment
obtained with the aid of a witness who, on the basis of after-discovered
evidence, is believed possibly to have been guilty of perjury." Id. at
245. The Court described the fraud upon the court by the attorney as
"manifestly unconscionable," id. at 244-45 (internal quotation marks
omitted), and "a deliberately planned and carefully executed scheme to
defraud not only the Patent Office but the Circuit Court of Appeals." Id.
at 245-46. This "tampering with the administration of justice," the Court
concluded, justified its exercise of equitable power to set aside the
"fraudulently begotten judgment[]." Id.

Since Hazel-Atlas, courts and commentators alike have observed that
the fraud-on-the-court doctrine must be narrowly applied, or it would
become indistinguishable from ordinary fraud, and undermine the important
policy favoring finality of judgments. "If fraud on the court were to be
given a broad interpretation that encompassed virtually all forms of
fraudulent misconduct between the parties, judgments would never be final
and the time limitations of rule 60(b) would be meaningless." 12 J. Moore
et al., Moore's Federal Practice 60.21[4][c], at 60-55 (3d ed. 1997).
Thus, the doctrine has generally been reserved for only the most egregious
misconduct evidencing, as in Hazel-Atlas, an unconscionable and calculated
design to improperly influence the court. See, e.g., Wilson v.
Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989) (fraud on the
court requires showing of unconscionable plan or scheme designed to

improperly influence court in its decision). As one federal court has
explained, the narrow fraud-on-the-court concept should "embrace only that
species of fraud which does or attempts to, defile the court itself, or is
a fraud perpetrated by officers of the court so that the judicial machinery
cannot perform in the usual manner its impartial task of adjudging cases."
Kerwit Med. Prods. v. Nolt, 616 F.2d 833, 837 (5th Cir. 1980) (quoting 7
Moore, Federal Practice 60.33 at 511 (1971 ed.)). As another court has
observed: "'A finding of fraud on the court is justified only by the most
egregious misconduct directed at the court itself, such as . . .
fabrication of evidence by counsel, and must be supported by clear,
unequivocal and convincing evidence.'" Nichols v. Klein Tools, Inc., 949 F.2d 1047, 1048 (8th Cir. 1991) (quoting Pfizer v. Int'l Rectifier Corp.,
538 F.2d 180, 195 (8th Cir. 1976).

Judged in the light of this standard, mother's conduct in this case
cannot reasonably be characterized as a fraud on the court. The primary
basis of plaintiff's fraud allegation is mother's attestation in her
divorce complaint that Christina was "born of [the] marriage." The wording
was not mother's, but rather was contained in the pre-printed complaint
form, and merely signified that the child was born while the parties were
legally married. From this fact, the law presumes that the parties are the
child's natural parents. See 15 V.S.A. § 308(4) (Cum. Supp. 1998) (alleged
parent shall be rebuttably presumed to be natural parent if child is born
while husband and wife are legally married); see also Cicero v. Cicero, 395 N.Y.S.2d 117, 117 (N.Y. App. Div. 1977) (presumption of legitimacy attached
to "issue of the marriage"); Orange v. Rose, 295 N.Y.S.2d 782, 783 (N.Y.
App. Div. 1968) ("offspring of the marriage" were entitled to presumption
of legitimacy); Best v. LJF Corp., 246 N.Y.S.2d 791, 792 (App. Div. 1964)
(issue "born of this marriage" are presumed legitimate). Thus, there was
nothing fraudulent about mother's representation that Christina was born of
the marriage. The law supplied the presumption that plaintiff was the
child's natural parent; mother did not make that affirmative
representation.

The real thrust of plaintiff's fraud-on-the-court claim is that mother
failed to disclose

certain facts during the divorce proceedings, namely, that she had sexual
relations with another man sometime after plaintiff returned to military
duty, and that Christina was born some ten months after plaintiff's last
sexual encounter with mother. As a number of courts have observed, "'the
mere nondisclosure to an adverse party and to the court of facts pertinent
to a controversy before the court does not add up to "fraud upon the court"
for purposes of vacating a judgment under Rule 60(b).'" Wilson, 873 F.2d
at 872 (quoting Kerwit Med. Prods. v. Nolt, 616 F.2d 833, 837 (5th Cir.
1980)). Furthermore, many pregnancies do, in fact, extend longer than the
average gestation period, and periods of 42 weeks or longer are not
unknown. See 5 Lawyer's Medical Cyclopedia § 37.2a (R. Patterson, ed., 4th
ed. 1998) (three percent of women deliver 300 days or more past first day
of last menstrual period). Thus, the nondisclosures in this case did not
approach the kind of calculated, egregious "defiling" of the adjudicative
process that has traditionally characterized fraud on the court. See Great
Coastal Express, Inc. v. International Bhd. of Teamsters, 675 F.2d 1349,
1356 (4th Cir. 1982) (fraud on court must "defile the court itself").

The second and more important issue is whether the facts of this case
present "special circumstances" that warrant the exercise of the Court's
equitable jurisdiction, despite the lapse of time and despite our previous
application of the doctrine of res judicata in Lerman. After all, issues
concerning parental rights and responsibilities are of the utmost
importance and do not always lend themselves readily to rigid legal rules.
We have previously addressed the court's authority arising from the
independent action clause of Rule 60(b):

This power has been and must continue to be exercised guardedly, as it
carries with it an inevitable clash of two competing principles of
judicial administration: the principle of finality and repose of
judgments, which is so fundamental to our system of justice, and
the ultimate principle that justice must be done unto the parties.

Levinsky, 146 Vt. at 318, 503 A.2d at 536-37 (internal citations omitted).
The essential elements of an independent action under Rule 60(b) are as
follows:

(1) a judgment which ought not, in equity and good conscience, to

be enforced; (2) a good defense to the alleged cause of action on which
the judgment is founded; (3) fraud, accident, or mistake which prevented
the defendant in the judgment from obtaining the benefit of his defense;
(4) the absence of fault or negligence on the part of the defendant; and
(5) the absence of any adequate remedy at law.

Id. at 319, 503 A.2d at 537.

Although plaintiff here alleges that mother fraudulently failed to
disclose the ten-month gestation period, he offers no plausible reason why
he would have been unaware of the relevant dates prior to the divorce, and
thus on inquiry notice of at least some irregularity. Plaintiff asserts
that nondisclosure of the ten-month period constituted a fraudulent
omission of material fact. Accordingly, he can hardly claim that he was
unaware of the significance of the dates and therefore excused from taking
action. While not dispositive, plaintiff's failure to raise the issue
prior to the final divorce order certainly undermines his claim that
"equity and good conscience" require us to void the judgment. See N.C. v.
W.R.C., 317 S.E.2d 793, 796-97 (W. Va. 1984) (father's negligence in not
raising paternity issue prior to final disposition of divorce precluded
independent action challenging paternity).

Even more compelling, in our view, are the fundamental policy concerns
that require finality of paternity adjudications.(FN2) It is noteworthy that
Vermont statutory law raises a rebuttable presumption of parentage where,
as here, "the child is born while the husband and wife are legally married
to each other." 15 V.S.A. § 308(4) (Cum. Supp. 1998). The presumption of
parentage originated in the common law, which established that "a child
born

of a married woman was conclusively presumed to be legitimate unless
her husband was not within the four seas which bounded the kingdom."
Miscovich v. Miscovich, 688 A.2d 726, 729 (Pa. Super. 1997) (quoting
Commonwealth v. Shepherd, 6 Binney 283, 286 (1814)). The presumption of
paternity has been described as "'one of the strongest and most persuasive
known to the law.'" Richard B. v. Sandra B.B., 625 N.Y.S.2d 127, 129 (N.Y.
App. Div. 1995) (quoting In re Findlay, 170 N.E. 471, 472 (N.Y. 1930)); see
also A.G. v. S.G., 609 P.2d 121, 124 (Colo. 1980) (presumption of paternity
is "one of the strongest presumptions of the law").

Protecting innocent children from the social burdens of illegitimacy,
ensuring their financial and emotional security, and ultimately preserving
the stability of the family unit all contributed to the origins of the
parental presumption, and all help to explain its enduring power today. See
Michael H. v. Gerald D., 491 U.S. 110, 125 (1989) (in addition to avoidance
of illegitimacy, presumption of paternity prevented children from becoming
wards of state and preserved stability of families); A.G., 609 P.2d at 124
(public policy underlying presumption of paternity is to prevent
unnecessary litigation and disruption of family relations); Ettore I. v.
Angela D., 513 N.Y.S.2d 733, 739 (N.Y. App. Div. 1987) (presumption of
paternity preserves child's need for continuity of family relationships);
Michael K.T. v. Tina L.T., 387 S.E.2d 866, 871-72 (W. Va. 1989) (defeat of
parental presumption would result in undeniable financial and psychological
harm to child). Indeed, the presumption of paternity has assumed even
greater significance today, as alternative methods of conception unrelated
to the "biology" of the presumed parent have become more common. See In re
B.L.V.B., 160 Vt. 368, 376, 628 A.2d 1271, 1276 (1993).

Thus, the State retains a strong and direct interest in ensuring that
children born of a marriage do not suffer financially or psychologically
merely because of a parent's belated and self-serving concern over a
child's biological origins. These themes underlie the conclusion, reached
by numerous courts, that the public interest in finality of paternity
determinations is compelling, and that the doctrine of res judicata
therefore bars subsequent attempts to disprove

paternity. See, e.g., Hackley v. Hackley, 395 N.W.2d 906, 913-14 (Mich.
1986) (best interests of child in maintaining stability and preventing
psychological trauma must prevail over any unfairness to father resulting
from denal of challenge to paternity nine years after judgment of divorce);
Richard B., 625 N.Y.S.2d at 130 ("'unequivocal trend' has been to zealously
safeguard the welfare, stability and best interests of the child by
rejecting untimely challenges affecting his or her legitimacy'") (quoting
Ettore I., 513 N.Y.S.2d at 738); J.R.W. and K.B. v. D.J.B., 814 P.2d 1256,
1265 (Wyo. 1991) ("Because of the potentially damaging effect that
relitigation of paternity might have on innocent children, the doctrines of
res judicata and collateral estoppel are rigorously observed in the
paternity context.").

As the Supreme Court of Michigan observed in a case factually similar
to the case at bar:

[E]ven if we were inclined to adopt the position . . .
that res judicata sometimes does not bar relitigation of a factual
determination decided in a prior case, we would not adopt the exception
here. We believe that the best interests of this child, and all children
whose rights will be implicated by the Court's decision today, must prevail
over any unfairness that may result to this [former husband] by denying his
challenge of paternity raised nine years after entry of his judgment of
divorce.

Hackley, 395 N.W.2d at 913. Thus, many other jurisdictions have rejected
similar attempts to reopen paternity judgments based on post-judgment blood
tests or other evidence, absent clear and convincing evidence that it
serves the best interests of the child. See Tandra S. v. Tyrone W., 648 A.2d 439, 449 (Md. 1994) (collecting cases); J.R.W., 814 P.2d at 1266-67
nn. 6-7 (collecting cases).

Although we understand plaintiff's interest in ascertaining the true
genetic makeup of the child, we agree with the many jurisdictions holding
that the financial and emotional welfare of the child, and the preservation
of an established parent-child relationship, must remain paramount. Where
the presumptive father has held himself out as the child's parent, and
engaged in an on-going parent-child relationship for a period of years, he
may not disavow that relationship and destroy a child's long-held
assumptions, solely for his own self-interest.

See Ettore I, 513 N.Y.S.2d at 740 (holding father's "self-serving" effort
to disavow paternity to be inconsistent with policy of protecting innocent
children from irreparable loss of financial security and paternal bonds).
Whatever the interests of the presumed father in ascertaining the genetic
"truth" of a child's origins, they remain subsidiary to the interests of
the State, the family, and the child in maintaining the continuity,
financial support, and psychological security of an established
parent-child relationship. Therefore, absent a clear and convincing
showing that it would serve the best interests of the child, a prior
adjudication of paternity is conclusive. See A.K v. S.K., 624 A.2d 36,
40-42 (N.J. Super. Ct. App. Div. 1993).

Here, plaintiff lived with Christina, as her father, for the first
eight years of her life. Although he had the opportunity, plaintiff did
not raise the issue of paternity during the divorce proceedings, and he
continued to treat Christina as his child for six years thereafter, lending
her parental guidance and support. It is thus readily apparent that a
parent-child relationship was formed, and it is that relationship, and not
the results of a genetic test, that must control. We perceive no basis in
this case to relieve plaintiff of the prior adjudication of paternity, and
all of its attendant legal and financial responsibilities.(FN3)

The dissent contends that mother committed a fraud on the court by
affirmatively misrepresenting plaintiff's paternity in the divorce
complaint, in the stipulation incorporated into the divorce decree, and in
her testimony under oath. As noted, however, the divorce complaint did not
contain a false representation of plaintiff's paternity, but only the
accurate statement that Christina was born of the marriage. The alleged
misrepresentation in the parties' stipulation concerned child custody, not
paternity, and stated only that mother "is awarded the legal and physical
responsibilities of the parties minor child." This was hardly an
unequivocal

representation of plaintiff's paternity. Finally, we are hard pressed to
conclude that mother made fraudulent misrepresentations under oath when, as
the dissent notes, the transcript of her testimony is not before us.

Citing several sister-state decisions, the dissent also argues that
the stringent standards for a finding of fraud on the court should be
relaxed in the family-law context because the State is an integral party.
We are not persuaded, however, that the State's interest in the welfare of
children requires that post-judgment attacks on paternity should be made
easier. On the contrary, the State's concern is to ensure that children's
lives remain stable and secure, and this militates, if anything, against
the liberal reopening of paternity determinations.

The dissent also argues that a finding of fraud on the court is
compelled by our prior decisions in In re Goodrich, 111 Vt. 156, 11 A.2d 325 (1940) and Blondin v. Brooks, 83 Vt. 472, 76 A. 184 (1910). Goodrich,
however, involved a lawyer who knowingly filed a false complaint and
misrepresented facts to the court, and falls squarely within the category
of fraud-on-the-court "perpetrated by officers of the court." Kerwit Med.
Prods., 616 F.2d at 837. Blondin is also inapposite. There, the Court
refused to give conclusive effect to a New Mexico divorce judgment obtained
by the wife, a Vermont resident, after her original divorce complaint in
Vermont had been dismissed. The husband had failed to appear and defaulted
in the New Mexico proceedings. Although the Blondin Court found that the
wife had committed a fraud by failing to disclose to the New Mexico
authorities her intent to return to Vermont, the real basis of the holding
was the Court's reluctance to give effect to such "quickie" foreign
divorces (this was before no-fault divorce) at the expense of the spouse
domiciled in Vermont. See Blondin, 83 Vt. at 484, 76 A. at 189
(Constitution "does not debar other states from giving such effect to a
decree of that character as they may elect to do").

The dissent argues that the policies favoring finality are archaic and
counter-productive, and that barring a relitigation of paternity cannot
perpetuate a parent-child relationship against a parent's will. Obviously
not. The fact that plaintiff chose for self-serving purposes to

jeopardize his relationship with Christina is beyond our control. We need
not, however, award plaintiff a financial windfall for his conduct, or
deprive Christina of not only a father's affection, but also the legal
rights and financial benefits of the parental relationship. See Michael
T., 387 S.E.2d at 872 ("While the law cannot prohibit the putative father
from informing the child of their true relationship, it can prohibit him
from employing the sanctions of the law to avoid the obligations which
their assumed relationship would otherwise impose."). The dissent's
assertion to the contrary notwithstanding, the real "victim" in this case
is not Mark Godin, but his innocent daughter Christina.

Finally, our ruling in this case will help deter other parents who
might otherwise seek, for financial or other self-serving reasons, to
dissolve their parental bonds. See Ettore I., 513 N.Y.S.2d at 740 (were
court to sanction father's denial of paternity, "innocent victims of
belated challenges to paternity would be deprived of any protection under
the law"). Far from representing archaic interests, these policy concerns
are more signficant today than ever before, as family structures become
more fluid and the means of conception become ever more varied. Nor,
finally, does our ruling prevent an interested child from later attempting
to ascertain the identity of the child's biological father. See 15 V.S.A.
§ 302(b) (action to establish parentage may be brought by child up to age
of twenty-one).

For all of the foregoing reasons, therefore, we conclude that the
policy interests underlying our decision in Lerman remain valid and
controlling. The trial court correctly denied plaintiff's request for
genetic testing and for relief from judgment.

Affirmed.

FOR THE COURT:

Associate Justice

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Footnotes

FN1. Plaintiff's motion to strike from the record portions of mother's
brief as well as previously unfiled documents is granted pursuant to
V.R.A.P. 10(a).

FN2. There was no question that paternity "was necessarily determined in
the original divorce proceeding, which granted an award of support."
Slansky v. Slansky, 150 Vt. 438, 441 n.1, 553 A.2d 152, 153 (1988)
(construing our holding in Lerman). A finding of paternity is a necessary
predicate to an ex-husband's child support obligation. Moreover, a survey
of other jurisdictions reveals that the overwhelming weight of authority
holds that a divorce decree is an adjudication of the paternity of a child
of the marriage. See, e.g., Anderson v. Anderson, 552 N.E.2d 546, 550-51
(Mass. 1990); Hackley v. Hackley, 395 N.W.2d 906, 907-08 (Mich. 1986);
DeVaux v. DeVaux, 514 N.W.2d 640, 644 (Neb. 1994); Commonwealth ex rel.
Coburn v. Coburn, 558 A.2d 548, 551 (Pa. Super. 1989).

FN3. This is not a case where a third party is seeking to establish
paternity and assume support of the child, or where support is being sought
from a third-party putative father. A finding of non-paternity in this
case would essentially leave the child without the benefit of a
father-child relationship, and the economic and emotional well-being that
accompanies it. Cf. M.F. v. N.H., 599 A.2d 1297, 1297 (N.J. Super. Ct.
App. Div. 1991).

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Dissenting

No. 97-147

Mark A. Godin Supreme Court

On Appeal from
v. Franklin Family Court

Rita Godin February Term, 1998

Linda Levitt, J.

Timothy J. Ryan of Brown, Cahill, Gawne & Miller, St. Albans, for
Plaintiff-Appellant.

Rita Godin, pro se, Enosburg, Defendant-Appellee.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

DOOLEY, J., dissenting. One night in September of 1996, defendant's
teenage daughter Christina Godin called plaintiff and said that children at
her school were telling her that he was not her father. This was
plaintiff's first notice of what is now undisputed, that plaintiff is not
the biological father of Christina. The truth came out fully only after
Christina wrote notes to various of her relatives asking whether plaintiff
was her father, and defendant finally admitted he was not to plaintiff's
sister and apparently to Christina.

Because plaintiff believes there should be legal consequences stemming
from the true facts, which had been withheld from him for fifteen years, he
is labeled by the majority as disavowing his relationship with Christina
and destroying her "long-held assumptions, solely for his own
self-interest." I take it the majority is making this accusation, so at
variance with the actual facts of the case, to suggest its result is just
and consistent with the public interest. To the contrary, the undisputed
facts demonstrate that, at its core, this is a classic case of defending an
unjust result by blaming the victim. Accordingly, I dissent.

I accept the majority's statement of the facts, with the proviso that
we must assume the validity of all assertions in plaintiff's complaint and
accompanying affidavit because the family court made no findings, ruling
that defendant was entitled to judgment as a matter of law irrespective of
the facts. See Thayer v. Herdt, 155 Vt. 448, 456, 586 A.2d 1122, 1126
(1990) (holding that, when awarding judgment on the pleadings, trial court
must accept well-pleaded facts alleged by non-prevailing party). Hence the
inclusion, at the outset of my opinion, of certain additional circumstances
alleged by plaintiff but omitted by the majority. I further note that,
although plaintiff has sought a paternity test, that step is really
unnecessary because defendant has not denied plaintiff's assertion that he
is not Christina's father and has admitted she was sexually active with
another man after plaintiff returned to military duty in July 1981.(FN1)

The majority leads off with the assertion that we have already held
that a father cannot prevail in these circumstances in Lerman v. Lerman,
148 Vt. 629, 629, 528 A.2d 1121, 1122 (1987), and that plaintiff is asking
us to overrule that memorandum decision. This is an overstatement of
Lerman, which holds only that res judicata applies to paternity
adjudications and prevents relitigation when the matter should have been
litigated in the divorce. Id., 528 A.2d at 1122. In filing his complaint
to reopen the judgment based on fraud on the court, plaintiff accepted that
res judicata applied, but alleged that grounds for reopening a judgment
existed because of defendant's fraud on the superior court in 1990. Unless
paternity judgments are somehow immune from reopening based on grounds
applicable to any other judgment, plaintiff is actually invoking, not
warring with, Lerman.

As the majority recognizes, V.R.C.P. 60(b) establishes two alternative
procedures for obtaining relief from a judgment: (1) a motion for relief
under the rule, and (2) an independent

action, including an independent action "to set aside a judgment for fraud
upon the court." Reporter's Notes, V.R.C.P. 60. The majority concludes,
however, that although defendant's actions may have been a fraud on
plaintiff, they were not a fraud on the court. This conclusion ignores our
settled law on this subject.

I agree that we should look initially to Federal Rule of Civil
Procedure 60(b), especially as interpreted by Hazel-Atlas Glass Co. v.
Hartford-Empire Co., 322 U.S. 238 (1944). The key test under Hazel-Atlas
is whether the fraud affects only the parties before the court or,
alternatively, "far more than an injury to a single litigant." Id. at 246.
Thus, the fraud must involve a "direct assault on the integrity of the
judicial process." 11 C. Wright, A. Miller & M. Kane, Federal Practice &
Procedure § 2870, at 416 (2d ed. 1995).

What I do not accept is that commercial law decisions from federal
courts involving corporate parties have much to tell us about applying the
principles of Hazel-Atlas to family proceedings. Far more relevant is the
observation of the Minnesota Supreme Court that a narrow definition of
fraud on the court "has no place in family law" where the court "sits as a
third party." Maranda v. Maranda, 449 N.W.2d 158, 165 (Minn. 1989). Thus,
other courts have found fraud on the court in cases comparable to that
before us. See, e.g., In re M.E., 622 N.E.2d 578, 583 (Ind. Ct. App.
1993); In re Tompkins, 518 N.E.2d 500, 506-07 (Ind. Ct. App. 1988); Cain v.
Cain, 777 S.W.2d 238, 239 (Ky. 1989).

Because of the broad public interest involved in divorce proceedings,
we have made essentially the same point as the Minnesota Court, noting that
"the state is virtually a party." Siebert v. Siebert, 124 Vt. 187, 192,
200 A.2d 258, 261 (1964). Unlike the complaint in most other cases, a
divorce complaint must be signed under oath by the plaintiff. See V.R.F.P.
4(b)(1)(A). Even if uncontested, the divorce action must be heard by the
court. See V.R.F.P. 4(d). The court must make findings and is not bound
in doing so by uncontradicted testimony. See Davis v. Davis, 128 Vt. 495,
497, 266 A.2d 466, 468 (1970).

Again because of the public interest involved, this Court has held
that presenting a false

complaint in a divorce, or using false testimony to obtain a divorce, is a
fraud upon the court. In In re Goodrich, 111 Vt. 156, 11 A.2d 325 (1940),
a lawyer presented to the court a divorce complaint which, because
recrimination then barred a divorce, stated that plaintiff had faithfully
performed her marital covenants. The lawyer knew that the plaintiff had
been convicted of adultery when he filed the complaint. We suspended the
lawyer from the practice of law for one year because of this misconduct,
finding that it represented a fraud upon the superior court. Id. at
159-60, 11 A.2d at 326-27. Similarly, we held in Blondin v. Brooks, 83 Vt.
472, 486, 76 A. 184, 189-90 (1910), that misrepresenting residency in order
to obtain a divorce was a fraud on the court.

The majority seeks to distinguish Goodrich on the basis that the fraud
there was attributable to the lawyer. The majority is arguing that a
party, who knowingly signs a false pleading under oath, does not commit a
fraud on the court, while a lawyer who delivers that pleading to the court
does commit such a fraud. I find this distinction illogical since both
involve fraud and the effect 'on the court' are the same. Nothing in
Goodrich suggests that this Court drew such an illogical distinction.

The attempt to distinguish Blondin is more curious. The majority does
not dispute that this Court found that obtaining a foreign divorce by a
misrepresentation of residency is a fraud on the foreign court such that
this Court does not have to recognize the divorce. I believe that this is
the real holding of the case and fail to understand the relevancy of the
majority's further suppositions as to the Blondin court's underlying
motivation. Under any view of the Court's motives, the holding on fraud on
the court is entitled to stare decisis effect here. In fact, the majority
has sub silentio overruled Goodrich and Blondin because it disagrees with
them, and not because they can be distinguished.

Rather than overruling these cases, we should recognize that the force
of Blondin and Goodrich is even greater when the issue involves children.
The "court embodies the public's paramount interest in the care and
maintenance of the[] children" before it in a divorce. White

v. White, 141 Vt. 499, 503, 450 A.2d 1108, 1110 (1982). Thus, the "duty
and first obligation" of the court is to consider the welfare of the
children, and it is not bound by any agreements of the parties in doing so.
Frink v. Frink, 128 Vt. 531, 534, 266 A.2d 820, 822 (1970). A
misrepresentation of paternity makes it impossible for the court to
discharge properly its "duty and first obligation."

I think it is beyond question that defendant perpetrated a fraud upon
the superior court. She signed under oath a divorce complaint stating that
Christina was born of the marriage between plaintiff and defendant and
requested that defendant be ordered to pay child support for Christina.
Although we do not have her divorce testimony before us, it is very likely
that she continued this fraudulent misstatement in her testimony, again
under oath. She signed a stipulation that Christina was the "parties'
minor child," knowing that to be false, in order to induce the court to
issue a child support order against plaintiff.

The majority has responded that defendant was technically accurate in
the pleading because "born of the marriage" actually means "born during the
marriage," that defendant's statement in the stipulation was equivocal, and
that we do not know what defendant actually said in her divorce hearing.
Quite apart from the regrettable inducement to sharp pleading represented
by such a reading of plaintiff's divorce complaint -- an invitation that is
particularly unfortunate in the context of family court proceedings where
the welfare of children is at issue -- the majority confuses the
application of a rebuttable evidentiary presumption, see discussion infra,
with the more straightforward process of understanding the actual words
that appear in the divorce complaint. No credible theory of language
interpretation would accommodate the metamorphosis of "born of the
marriage" into "born during the marriage." Regardless of the legal
presumption that children born to a married woman are the offspring of the
woman and her husband, I doubt any one reading the words in the divorce
complaint would regard them as anything other than a statement that Mark
Godin is the father of Christina Godin. Indeed, the majority's constant
insistence that the divorce decree is res judicata as to plaintiff's
paternity is undermined by its holding that defendant never

asserted that plaintiff was the biological father of Christina.

I have the same reaction to the claim that defendant did not commit
fraud in signing the stipulation. There is nothing equivocal about a
statement that Christina is the "parties' minor child," whatever was the
purpose of the stipulation. Of course, plaintiff might have brought out
more about the nature of defendant's representations if his claim had not
been dismissed before any factual development.

The majority has also determined that the paternity adjudication
inherent in the divorce cannot be reopened because "absent a clear and
convincing showing that it would serve the best interests of the child, a
prior adjudication of paternity is conclusive." I assume this is a
throw-away line because plaintiff has never been allowed to make any
showing and the majority is not now remanding to allow him to do so. I
would only add that a rule requiring exploration of the best interest of
Christina in light of the new reality that plaintiff is not her father
would be far more desirable than the Court's holding, which makes that
interest irrelevant.

Finally, I do not agree that there are compelling policy reasons to
impose the result the majority has reached. First, the majority has
greatly overstated the effect of the presumption of paternity. There are
states in which the presumption of paternity would support the decision the
majority has reached. See Michael H. v. Gerald D., 491 U.S. 110 (1989)
(upholding California's irrebuttable presumption statute); In re J.W.T.,
872 S.W.2d 189 (Tex. 1994) (striking down similar Texas statute). Vermont
is not one of them. 15 V.S.A. § 308(4) creates a rebuttable presumption of
paternity. In this state, rebuttable presumptions operate only to assign
the burden of production. See V.R.E. 301(a). Once the party against whom
the presumption operates bursts the bubble by presenting evidence that the
fact is not as presumed, the function of the presumption is over and the
fact-finder must determine the fact, here paternity, based on the evidence
and not the presumption. See id. 301(c)(3); Reporter's Notes, V.R.E. 301.
The presumption is rebutted by any evidence that the fact is not as
presumed.

My point is that the Vermont presumption of paternity never operates
to determine paternity

contrary to the evidence, see id., exactly the effect the majority seeks to
assign it here. By adopting a rebuttable presumption, the Legislature has
refused to make a man a father based on a legal fiction, rather than on his
action. In this case, plaintiff rebutted the presumption of paternity, and
it should not stand in his way to a just result.

We are left then with the majority's assertion that our policy must
preserve the stability of family units and require plaintiff to continue
his relationship with Christina whether or not he is her biological father.
The policy of requiring the husband of the mother of a child to accept
paternity, despite biological evidence to the contrary, is based on two
rationales: (1) because of the stigma and legal disability of illegitimacy,
the law should avoid placing children in this status; and (2) the law
should promote intact families. See Michael H. v. Gerald D., 491 U.S. at
125. The policies and rationales were developed in early English law
dating back to the 16th Century. See id. at 124-25.

The rationales are greatly weakened by modern conditions.
Approximately 25% of children in this state are born of parents who are not
married to each other. See Vermont Dep't of Health, Agency of Human
Servs., State of Vermont 1995 Vital Statistics (1997) at 31. The legal
disadvantages of illegitimacy have largely been eliminated as a matter of
federal constitutional law. See Smith v. Cole, 553 So. 2d 847, 850 n.4
(La. 1989) (citing Supreme Court cases invoking Equal Protection rights of
illegitimate children). The rights of putative fathers have expanded. See
id. at 851 (citing Supreme Court cases delineating Due Process rights of
biological fathers). Societal attitudes about the obligation of biological
parents to support their offspring have changed. As the Indiana Supreme
Court has observed:

[S]tability and finality are significant objectives to be served
when deciding the status of children of divorce. On the other hand,
there is a substantial public policy in correctly identifying parents
and their offspring. Proper identification of parents and child
should prove to be in the best interests of the child for medical or
psychological reasons. It also plays a role in just determination of
child support; we have already declared that public policy disfavors a
support order against a man who is not the child's father. Conversely,
there is a substantial public policy which favors a support order
against a man who is a child's father.

In re S.R.I., 602 N.E.2d 1014, 1016 (Ind. 1992) (citation and internal
quotation marks omitted). In discussing those Pennsylvania cases which are
consistent with the majority decision here:

Substituting a legal fiction for biological reality results in a
host of inequities for the child, the presumptive father (i.e. the
husband), and the alleged father. The child has a legitimate interest
in knowing the identity of his biological father. The child's interests
include knowing his lineal descent - for medical purposes, for inheritance
and for other financial reasons.

With regard to the presumptive father and the alleged father,
both have a legitimate interest in knowing the identity of the natural
father. One should not be forced to provide financial support for
another man's child. Furthermore, this legal fiction of paternity may
result in the denial of the right to visitation and/or custody for either
the presumptive and/or the alleged father. As the Supreme Court
stated [in Michael H.] in today's society, "there is no room for dual
parentage."

Comment, Challenging the Paternity of Children Born During Wedlock, 100
Dick. L. Rev. 963, 964-65 (1996). The first rationale no longer supports
the policies the majority espouses.

The second rationale has even less support. It was formulated when
families were required to stay together, and divorce was unavailable.
Through no-fault divorce laws, we have accepted the break-up of family
units that no longer seek to stay together. This family unit broke apart
long ago, and no one suggests that it can be reunited. Requiring defendant
to make child support payments from a divorce decree cannot be justified
based on the desirability of keeping family units intact.

The majority opinion is premised on the belief that it is in the
public interest to force the continuation somehow of a parent-child bond
between plaintiff and Christina. We can force the continued payment of
child support, but we cannot by this decision perpetuate a father-daughter
relationship against plaintiff's will. The disclosure that plaintiff is
not Christina's biological father has fundamentally altered this family
whether we like it or not. The constitution gives us many powers, but we
cannot order that plaintiff love Christina as his daughter or provide her
the parental guidance we would expect of a father. Nor can we order
Christina to treat plaintiff as her father.

Even if I thought that the policy reasons assigned by the majority
were strong, I would question whether they outweigh the countervailing
policy considerations. Although this Court is

barring the door to prevent husbands from reopening divorce decrees to
contest paternity determinations, the Legislature has provided that a wide
range of persons can bring a parentage action against the natural parent to
pursue support. See 15 V.S.A. § 302(a). Those include the child or the
child's natural representative, the natural parent (i.e. the mother), the
Office of Child Support under an assignment from a welfare recipient, and
the Office of Child Support when requested by a parent. Id. I do not
believe this decision is consistent with the Legislative policy. While
other parties can, if they desire, require the court to shift the burden of
paying child support onto the biological parent, where it belongs, the
person bearing that burden improperly has no remedy to initiate that shift.

In recent years, we have placed far more emphasis on requiring
responsible parents to pay for the support of their children consistent
with their financial ability. This decision goes in the opposite
direction. The biological father of Christina has escaped any
responsibility for his action, while plaintiff is required to support a
child who is not his. The result is neither just, nor consistent with our
child support policy.

Finally, in our decision today we are rewarding fraud. The majority
calls plaintiff's actions self-serving while ignoring that defendant
mislead her husband and her daughter for fifteen years and then
precipitated this case by finally disclosing the truth, and doing so in a
manner that caused plaintiff to hear this revelation from a child he had
thought was his daughter. The majority questions why plaintiff did not act
earlier, while ignoring that defendant intentionally kept from him the
facts upon which the majority requires that he act. We are condoning
affirmative misrepresentations to the court, not of collateral matters, but
of the central facts upon which the divorce court must act to protect the
children before it.

Because this decision is inconsistent with our own precedents as well
as thoughtful decisions from other courts, is based on policies that are
archaic and counter-productive to the concerns and interests we should
respect, and is unjust to plaintiff, I respectfully dissent from the
decision to affirm the dismissal of plaintiff's complaint. I would reverse
and remand for a hearing and decision

on the merits of plaintiff's action to reopen the divorce judgment based on
defendant's fraud on the superior court.

_______________________________________
Associate Justice

--------------------------------------------------------------------------------
Footnotes

FN1. For this reason, I attribute no significance to the fact that
defendant gave birth to Christina over nine months after her last act of
intercourse with plaintiff before he returned to military duty. If there
were a serious dispute over paternity, this fact might support either side.
I do not believe it would be determinative, however, because, as the
majority states, it is not uncommon for the human gestation period to
exceed nine months.

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