#26222-rev & rem-SLZ

2012 S.D. 74

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                 ****
BRADLEY C. DEBOER,                        Plaintiff and Appellee,

     v.

TARA D. DEBOER,                           Defendant and Appellant.


                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE FIFTH JUDICIAL CIRCUIT
                   ROBERTS COUNTY, SOUTH DAKOTA

                                 ****

                    THE HONORABLE JON S. FLEMMER
                               Judge

                                 ****

CHAD C. NELSON
Milbank, South Dakota                     Attorney for plaintiff
                                          and appellee.


THOMAS L. SANNES
DAVID A. GEYER of
Delaney, Nielsen & Sannes, PC
Webster, South Dakota                     Attorneys for defendant
                                          and appellant.

                                 ****

                                          CONSIDERED ON BRIEFS
                                          ON AUGUST 27, 2012

                                          OPINION FILED 10/24/12
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ZINTER, Justice

[¶1.]        Bradley DeBoer sued Tara DeBoer for divorce. Tara counterclaimed

for custody and support of a child she had from a prior relationship. The circuit

court granted Tara custody of the child, but denied Tara’s request for child support.

Tara appeals. She argues that a duty of support arose under Texas presumption of

paternity statutes. We agree that a duty of support arose under the Texas statutes,

and we reverse.

                            Facts and Procedural History

[¶2.]        Tara DeBoer, formerly Tara Koliba, resided in San Antonio, Texas. On

July 13, 2003, she gave birth to a son, Taiton Koliba. Tara only knew Taiton’s

biological father by his first name, and Tara did not identify a father on Taiton’s

Texas birth certificate.

[¶3.]        Tara met Bradley DeBoer in December 2004. They married shortly

thereafter. Tara and Taiton moved to rural Corona, South Dakota, to live with

Bradley and his son (Caleb DeBoer). Caleb was Bradley’s son from a prior

marriage.

[¶4.]        In January 2006, Bradley executed a will. In his will, Bradley

indicated that he had two children: “Caleb DeBoer” and “Taiton DeBoer.” Two

weeks later, Bradley and Tara decided to change Taiton’s last name from “Koliba”

to “DeBoer.” Because they thought it was too expensive, they did not utilize an

attorney to assist them. Instead, they decided to execute a Texas “Application for

New Birth Certificate Based on Parentage.”




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[¶5.]        The application required applicants to attach evidence of parentage.

Three options were available: a certified copy of a court decree, an acknowledgment

of paternity, and a “certified copy of the BIOLOGICAL parents’ marriage license.”

Bradley and Tara chose the “BIOLOGICAL parents’ marriage license” as their

evidence of parentage.

[¶6.]        Bradley and Tara signed the application and had it notarized. Printed

language immediately below Bradley’s signature indicated that the person signing

the application was the “FATHER or Legal Guardian swearing to this affidavit.” A

warning on the application, directly above Bradley’s signature, stated: “[t]he

[p]enalty for knowingly making a false statement in this form can be 2-10 years in

prison and a fine of up to $10,000.” Although Bradley knew he was not Taiton’s

biological father, he testified that by executing the application, he thought he was

going to become Taiton’s father.

[¶7.]        The parties submitted the application to the Texas Department of

State Health Services—Vital Statistics Unit. In March 2006, the Department

issued an amended birth certificate naming Bradley as the father of “Taiton

DeBoer.” The parties later obtained a new social security card with Taiton’s new

name. During the marriage, Bradley also identified Taiton as his child on tax

returns and health insurance documents. Bradley further held Taiton out as his

child, rather than his stepchild, in some church and school activities.




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[¶8.]          Bradley filed for divorce in 2010. Tara counterclaimed for custody of

Taiton and child support. Bradley and Tara stipulated to all matters other than

child support.

[¶9.]          At trial, the parties primarily focused on whether the birth certificate,

by itself, created a presumption of paternity. However, they also referenced Texas

statutes creating a presumption of paternity. The circuit court ruled that Bradley

“ha[d] no custody or visitation rights nor any support obligation for [Tara’s] child,

Taiton.” The court concluded that no presumption of paternity arose under the

birth certificate because it was fraudulently obtained and was null and void. The

circuit court further concluded that even if there were a presumption of paternity

under Texas law, the presumption was rebutted. The court finally concluded that

no presumption arose under South Dakota law and that “adoption by estoppel” was

not recognized in South Dakota.

[¶10.]         On appeal, Tara argues that the circuit court: (1) erred in concluding

Bradley was not Taiton’s presumed father under Texas Family Code Annotated

Sections 160.204 and 160.607; (2) erred in concluding Bradley was not Taiton’s

presumed father under SDCL 25-8-52 and 25-8-59; and (3) erred in concluding

Bradley did not adopt Taiton by estoppel. Because the first issue is dispositive, we

do not discuss issues (2) and (3). 1




1.       Tara does not pursue her trial argument that the birth certificate established
         a presumption of paternity.



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                                          Decision

[¶11.]         The question we address is whether two Texas statutes created an

unrebutted presumption of paternity. 2 The material facts are not in dispute and

“the question requires us to consider legal concepts in the mix of fact and law . . . to

exercise judgment about the values that animate legal principles[.]” See Manuel v.

Toner Plus, Inc., 2012 S.D. 47, ¶ 8, 815 N.W.2d 668, 670. This is a question of law

that we review de novo. See id.

[¶12.]         Texas Family Code Annotated Section 160.204 creates a presumption

of paternity under certain circumstances when parties marry after the birth of a

child. That statute provides:

               (a) A man is presumed to be the father of a child if . . . (4) he
               married the mother of the child after the birth of the child in
               apparent compliance with law, regardless of whether the
               marriage is or could be declared invalid, he voluntarily asserted
               his paternity of the child, and: (A) the assertion is in a record
               filed with the bureau of vital statistics; [or] (B) he is voluntarily
               named as the child’s father on the child’s birth certificate . . . .

Tex. Fam. Code Ann. § 160.204 (West 2003).

[¶13.]         There is no dispute that Bradley married Tara after the birth of

Taiton. Therefore, the first requirement of the statute was satisfied.

[¶14.]         The second requirement is that Bradley must have voluntarily

asserted paternity. The circuit court acknowledged that Bradley swore under oath

that he was Taiton’s biological parent on the application for an amended birth


2.       In referencing the applicable law, both parties rely on Texas statutes. We
         decide this case under the arguments presented. We express no opinion
         regarding the appropriate choice of law.



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certificate. But the court concluded the application was not a voluntary assertion of

paternity because “there [was] no dispute that Brad [was] not the biological father

of Taiton.” The court also reasoned that Bradley’s signature on the application did

not equate to a formal “Acknowledgement of Paternity.” The court finally reasoned

that Bradley never “specifically assert[ed] that he [was] the father, other than the

language printed under his signature line.”

[¶15.]       The circuit court erred in applying the Texas statute. First, there is no

requirement in Section 160.204(a)(4) that the putative father be the biological

father in order to have asserted paternity. Second, the statute does not require a

formal “Acknowledgement of Paternity.” The statute only requires that the

putative father “voluntarily assert[] his paternity of the child” in an undefined

manner. See Tex. Fam. Code Ann. § 160.204. Finally, Bradley did specifically

assert that he was Taiton’s father. Bradley testified that he read the entire

application, including the penalty for perjury; and he signed the document and had

it notarized. In that document, Bradley asserted that he was Taiton’s “biological

parent[ ].” He also asserted that he was Taiton’s “FATHER.” By his signature and

acknowledgment, Bradley voluntarily asserted paternity.

[¶16.]       The final requirement is that the assertion of paternity be “in a record

filed with the bureau of vital statistics” or that “[the father was] voluntarily named

as the child’s father on the child’s birth certificate.” Tex. Fam. Code Ann. §

160.204(a)(4)(A)-(B). The circuit court apparently considered these alternatives

together. The court concluded that neither requirement was met because Taiton’s




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amended birth certificate was null and void as Tara and Bradley obtained it by

fraudulently executing the application. 3 However, the Texas presumption statute

did not require a valid birth certificate. The statute only required that an

“assertion” of a paternity be filed with the bureau of vital statistics or that the

putative father be voluntarily named on a birth certificate.

[¶17.]         In this case, the last two requirements were satisfied. Bradley’s

application contained an assertion that he was Taiton’s biological father, and the

application was filed with the Texas Department of State Health Services—Vital

Statistics Unit. Alternatively, there is no dispute that Bradley voluntarily allowed

his name to be placed on Taiton’s birth certificate. Because both requirements were

satisfied, a rebuttable presumption of paternity arose.


3.       The circuit court indicated that there was no Texas case law determining
         whether a fraudulently obtained birth certificate was void. The court relied
         on other courts that have voided fraudulently executed paternity
         acknowledgments and paternity affidavits. Because this case involves a mere
         assertion of paternity rather than a formal paternity acknowledgement,
         paternity affidavit, or birth certificate, we find the circuit court’s authorities
         inapposite.

         The circuit court also erred in relying on Crouse v. Crouse, 1996 S.D. 95, 552
         N.W.2d 413, to conclude that Bradley’s false assertion of paternity to obtain
         Taiton’s amended birth certificate could not create a presumption of
         paternity. In Crouse, this Court stated that, under Iowa law, “a false
         acknowledgment of fatherhood on a birth certificate will not establish
         paternity . . . .” Id. ¶ 12 (emphasis added). The question in Crouse was
         “whether placing the husband’s name on the non-biological child’s birth
         certificate afforded the husband parental rights to custody . . .”; it “did not
         involve a presumption of paternity.” State ex rel. Wernke v. Cortez, 2010 S.D.
         47, ¶ 5, 783 N.W.2d 852, 854. We have previously concluded that Crouse does
         not apply to cases involving presumptions of paternity and resulting
         obligations for child support. See Cortez, 2010 S.D. 47, ¶¶ 5-6, 783 N.W.2d at
         854.



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[¶18.]       Bradley claims that any presumption was rebutted under Texas

Family Code Annotated Section 160.607(b). That statute provided,

             A proceeding seeking to disprove the father-child relationship
             between a child and the child’s presumed father may be
             maintained at any time if the court determines that: (1) the
             presumed father and the mother of the child did not live
             together or engage in sexual intercourse with each other during
             the probable time of conception; and (2) the presumed father
             never represented to others that the child was his own.

Tex. Fam. Code Ann. § 160.607(b) (West 2003) (amended 2011).

[¶19.]       The circuit court ruled that Bradley overcame the “presumption [of

paternity] through the testimony of the parties that he [was] not the biological

father of Taiton and the lack of evidence indicating Brad[ley] represented to others

that Taiton was his own child.” Bradley, however, executed a will stating that

“Taiton DeBoer” was his child. Bradley also made representations inferring

paternity on health insurance documents and income tax returns. Bradley further

held Taiton out as his child, rather than his stepchild, in school and church

activities. Bradley and Tara also obtained a new social security card that identified

Taiton as “Taiton DeBoer” even though they had not pursued a change of name or

adoption proceeding. This record does not support the circuit court’s determination

that Bradley “never represented to others that the child was his own.” See Tex.

Fam. Code Ann. § 160.607(b). The circuit court clearly erred in finding Bradley

never represented that Taiton was his child. Therefore, the presumption of

paternity was not rebutted.




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[¶20.]       Although Bradley is not Taiton’s biological father, Bradley became

Taiton’s “parent” for purposes of child support. A “parent” is “an individual who has

established a parent-child relationship under Section 160.201.” Tex. Fam. Code

Ann. § 160.102(11) (West 2003). An unrebutted presumption of paternity

establishes a parent-child relationship. Tex. Fam. Code Ann. § 160.201(b) (West

2003) (providing circumstances that establish a parent-child relationship). That

parent-child relationship imposes a duty on the parent to support the child. See

Tex. Fam. Code Ann. § 151.001(a)(3) (West 2003) (providing that a parent has the

duty to support his or her child); Tex. Fam. Code Ann. § 160.203 (West 2003)

(“Unless parental rights are terminated, a parent-child relationship . . . applies for

all purposes, except as otherwise provided by another law of this state.”); Mata v.

Moreno, 601 S.W.2d 58, 59 (Tex. Civ. App. 1980) (stating that “a court [may] order

an individual to pay child support only if it determines that a parent-child

relationship exists”).

[¶21.]       “Paternity presumptions are driven not by biological paternity, but by

the state’s interest in the welfare of the child and the integrity of the family.” In re

T.R., 34 Cal. Rptr. 3d 215, 219 (Cal. Ct. App. 2005). Under Texas law, a parent may

be required to support a non-biological child if a parent-child relationship is

established. See In re Rodriguez, 248 S.W.3d 444, 452, 454 (Tex. App. 2008)

(concluding that the Texas Legislature specifically limited paternity challenges “to

protect the family unit” and thus, DNA evidence allegedly disproving a father-child

relationship is not always admissible); In re J.I.Z., 170 S.W.3d 881, 883-84 (Tex.




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App. 2005) (stating that modification of a child support decree is not permissible

merely because post-decree DNA evidence indicates the obligor—who was

previously determined to be the legal father—is not the biological father).

[¶22.]       This Court has also recognized that a presumption of paternity may

require a parent to support a non-biological child. State ex rel. Wernke v. Cortez,

2010 S.D. 47, ¶¶ 2, 6, 783 N.W.2d 852, 853-54. In Cortez, Jorge Cortez knew he was

not the child’s biological father. Id. ¶ 2. Yet, Cortez signed a paternity affidavit and

acknowledged he was the natural father of the child. Id. Because a presumption of

paternity arose, Cortez was legally obligated to support the child. Id. ¶ 6.

[¶23.]       Here, Bradley was not Taiton’s biological father. But Bradley

voluntarily asserted paternity in a manner that created a rebuttable presumption of

paternity under Texas law. Because the presumption was not rebutted, Bradley is

legally obligated to support Taiton.

[¶24.]        Reversed and remanded for further proceedings on Tara’s claim for

child support.

[¶25.]       GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and

WILBUR, Justices, concur.




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