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PAUL v. WILLIAMSON2014 OK CIV APP 31322 P.3d 1070Case Number: 111787Decided: 02/21/2014Mandate Issued: 03/26/2014DIVISION ITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION ICite as: 2014 OK CIV APP 31, 322 P.3d 1070
RANDY PAUL, Plaintiff/Appellant,v.RENEE WILLIAMSON, 
Defendant,

TONY LOPEZ, Intervenor/Appellee.

APPEAL FROM THE DISTRICT COURT OFCOMANCHE COUNTY, 
OKLAHOMA
HONORABLE GERALD F. NEUWIRTH, JUDGE

REVERSED

Gregory P. Beben, LEGAL AID SERVICES OF OKLAHOMA, INC., Oklahoma City, 
Oklahoma, and Richard J. Vreeland, LEGAL AID SERVICES OF OKLAHOMA, INC., Norman, 
Oklahoma, for Plaintiff/Appellant.


Kenneth L. Buettner, Judge:
¶1 Petitioner/Appellant Randy Paul appeals the trial court's Order Vacating 
Order of Custody. Paul acknowledged paternity of A.P. February 8, 2005. Paul was 
awarded custody of A.P. October 7, 2008. On April 25, 2012, Intervenor/Appellee 
Tony Lopez filed a petition to vacate the 2008 order of custody pursuant to 12 O.S. § 1031(4). Lopez's attempt 
to challenge Paul's acknowledgment of paternity and vacate the custody order was 
untimely. Therefore, the trial court abused its discretion by vacating the 2008 
custody order. We reverse.
¶2 Defendant Renee Williamson discovered she was pregnant while she was 
dating and living with Lopez in 2004. Williamson was still pregnant when she and 
Lopez ended their relationship. Williamson began dating Paul. Williamson gave 
birth to A.P. February 7, 2005. Williamson and Paul were not married when A.P. 
was born, and Paul knew he was not the child's biological father. However, Paul 
signed a DHS affidavit acknowledging paternity February 8, 2005, and Paul was 
named A.P.'s father on the birth certificate. Thereafter, Williamson, Paul, and 
A.P. lived together in Lawton, Oklahoma, until late-2007.
¶3 Paul filed a Petition to Establish Paternity, Custody, Visitation and 
Support January 22, 2008. Williamson was served, but did not appear. On October 
7, 2008, the trial court entered a default judgment against Williamson and 
awarded Paul custody of A.P. The trial court also awarded Williamson visitation 
and ordered her to pay child support.
¶4 Williamson and A.P.'s whereabouts were unknown until Lopez contacted Paul 
in the summer of 2009 and told him where Williamson and A.P. were living in 
Oklahoma City. Lopez contacted Paul after he discovered Williamson and A.P.'s 
deplorable living conditions. Lopez testified that he contacted Paul because he 
knew Paul was A.P.'s legal father on the birth certificate. Paul sought a writ 
of habeas corpus in Oklahoma County July 29, 2009. Williamson was not served, 
and Paul filed a second petition for a writ of habeas corpus February 22, 2011. 
A.P. was picked up by the Oklahoma County Sheriff's Department and returned to 
Paul February 23, 2011. A.P. has been in Paul's physical custody since that 
time. Lopez has had periodic contact with A.P. throughout her life.
¶5 On April 25, 2012, Lopez filed a motion to intervene and a petition to 
vacate the 2008 order of custody. Lopez alleged he was the natural father of 
A.P. and that Paul established paternity and obtained custody by fraud. At the 
time Lopez intervened, A.P. was seven (7) years old. The trial court granted 
Lopez's motion to intervene August 21, 2012 and held a hearing on the motion to 
vacate October 18, 2012. After the hearing, the parties briefed the issues. The 
trial court announced from the bench April 3, 2013 that the Uniform Parentage 
Act (UPA) did not apply, that Lopez's motion to vacate was timely filed, and 
that Lopez's due process rights were violated when he was not given notice of 
Paul's 2008 petition for custody. The trial court granted Lopez's motion and 
vacated the October 7, 2008 custody order. The trial court entered an Order 
Vacating Order of Custody April 19, 2013. Paul appeals.
¶6 The trial court's decision on a motion to vacate a judgment is reviewed 
for an abuse of discretion. Ferguson Enters., Inc. v. H. Webb Enters., 
Inc., 2000 OK 78, ¶ 5, 13 P.3d 480. Paul argues the trial 
court should have dismissed Lopez's motion to vacate the order of custody, 
because Lopez filed the motion more than two (2) years after he had notice of 
the alleged fraud. Paul also argues that Lopez failed to allege or prove any 
grounds sufficient to vacate a judgment based on fraud and that Lopez should 
have been estopped from asserting parental rights after failing to assert those 
rights for seven (7) years.
¶7 Lopez has failed to file a response brief. Therefore, this appeal proceeds 
on Paul's brief only. "Where there is an unexcused failure to file an answer 
brief, this Court is under no duty to search the record for some theory to 
sustain the trial court judgment; and where the brief in chief is reasonably 
supportive of the allegations of error, this Court will ordinarily reverse the 
appealed judgment with appropriate directions." Cooper v. Cooper, 1980 OK 128, ¶ 6, 616 P.2d 1154; Okla.Sup.Ct.R. 1.10. 
However, "[r]eversal is never automatic on a party's failure to file an answer 
brief." Enochs v. Martin Props., Inc., 1997 OK 132, ¶ 6, 954 P.2d 124. If "the record 
presented fails to support the error alleged in the brief of the party who lost 
below, the decision to be reviewed cannot be disturbed. It is presumed correct 
until the contrary is shown by the record." Id.
¶8 The UPA went into effect November 1, 2006, which was after Paul executed 
the acknowledgment of paternity February 8, 2005. According to the UPA "[a] 
proceeding to adjudicate parentage or an acknowledgment of paternity which was 
commenced or executed before November 1, 2006, is governed by the [UPA]." 
10 O.S.Supp.2006, § 7700-902 
(emphasis added). "[A] valid acknowledgment of paternity signed by both parents 
is equivalent to an adjudication of paternity of a child and confers upon the 
acknowledged father all of the rights and duties of a parent." Id. § 
7700-305(A). Paul signed the acknowledgment of paternity February 8, 2005. At 
that point, Paul became A.P.'s acknowledged father. Section 7700-609 of the UPA 
provides, in pertinent part:


If a child has an acknowledged father or an adjudicated father, an 
    individual, other than the child, who is neither a signatory to the 
    acknowledgment of paternity nor a party to the adjudication and who seeks an 
    adjudication of paternity of the child shall commence a proceeding not later 
    than two (2) years after the effective date of the acknowledgment or 
    adjudication.
10 O.S. § 7700-609(B). Lopez 
is an individual, other than the child, who is not a signatory to the 
acknowledgment of paternity and is seeking an adjudication of paternity. Lopez 
commenced this proceeding April 25, 2012. The effective date of Paul's 
acknowledgment of paternity was February 8, 2005. Lopez sought adjudication more 
than two (2) years after the effective date of Paul's acknowledgment. Under the 
UPA, Lopez's opportunity to challenge Paul's acknowledgment of paternity expired 
in February 2007.
¶9 Prior to the adoption of the UPA, 10 O.S. § 70 provided that if more 
than sixty days have passed since the signing of the statement acknowledging 
paternity, "a signed voluntary acknowledgment of paternity may be challenged in 
court only on the basis of fraud, duress, or material mistake of fact, with the 
burden of proof upon the challenger." 10 O.S.Supp.2005 § 70 (repealed by 
Laws 2006, HB 2967, c. 116, § 62, eff. November 1, 2006). Section 70 did not 
contain a time limitation, but according to 12 O.S.2001 § 1038, a proceeding to 
vacate an order based on fraud pursuant to 12 O.S.2001 § 1031(4) must be 
commenced within two (2) years after the filing of the order.
¶10 The facts in this case are strikingly similar to the facts in the pre-UPA 
case Hill v. Blevins, 2005 OK 
11, 109 P.3d 332. While 
Howard Hill and Diane Blevins were living together, Blevins used a home 
pregnancy test to confirm she was pregnant. See id. ¶ 4. When Blevins was 
six months pregnant, she ended the relationship with Hill. See id. ¶ 5. 
When Blevins gave birth September 23, 1997, Hill was incarcerated. See 
id. ¶ 6. Blevins alleged that David Sawyer was the father. See id. 
Paternity was established by an affidavit signed by Blevins declaring David 
Sawyer to be the father. See id. ¶ 7. Six years later, Hill filed a 
petition to establish paternity and a motion to vacate the affidavit declaring 
Sawyer to be the father. See id. ¶¶ 2, 11. The Supreme Court of Oklahoma 
applied 10 O.S. § 1031 and § 1038. The Court recognized that because a statement 
acknowledging paternity has the same legal effect as an order in a court, the 
district court has the power to vacate such an order for fraud practiced by the 
successful party. See Hill, 2005 OK 11, ¶ 10 (citing 12 O.S.2001 § 1031(4)). The Court 
explained:


Section 1038 is a general statute of limitation applicable to proceedings 
    brought under § 1031. With regards to subsection 4, where the complaining 
    party alleges that an order has been obtained by fraud, proceedings to 
    vacate that order must be commenced within two years after the order was 
    made. The complaining party need not have actual notice of the fraud. 
    Constructive notice of fraud from public records, required by law to be 
    kept, is sufficient to set the statute of limitations in 
  motion.
Hill, 2005 
OK 11, ¶ 10. The Supreme Court held that Hill's paternity suit was 
time-barred:


Hill is chargeable with knowledge that a positive pregnancy test 
    administered on December 25, 1996, is likely to be followed by the birth of 
    a child approximately forty weeks later, that is, around September 30, 1997. 
    D.S. was born September 23, 1997. Instead of making inquiry about the birth, 
    the issuance of a birth certificate, or matters of support and visitation, 
    Hill waited until the child was almost six years old before he filed suit. 
    The means of discovery of the alleged fraud were no less available to Hill 
    in the fall of 1997 than they were five years later in June of 2002. So, 
    even if Blevins' naming of Sawyer as the father was false, means of 
    discovering the alleged fraud were readily available to Hill any time from 
    and after the issuance of the birth certificate on October 17, 1997, 
    expiring two years later in October of 1999. This suit, filed nearly four 
    years subsequent, July 2003, was correctly found to be time-barred by the 
    trial court.
Id. ¶ 11.
¶11 Paul acknowledged paternity February 8, 2005. Because an acknowledgment 
of paternity has the same legal effect as an order in a court, the district 
court has the power to vacate such an order for fraud practiced by the 
successful party. See Hill, 2005 OK 11, ¶ 10 (citing 12 O.S.2001 § 1031(4)). Where the 
complaining party alleges that an order has been obtained by fraud, proceedings 
to vacate that order must be commenced within two (2) years after the order was 
made. 10 O.S. § 1038. Lopez has been chargeable with knowledge of his biological 
child since February 2005. It is undisputed that Lopez always believed he was 
A.P.'s biological father, and Paul always believed he was not A.P.'s biological 
father. Lopez also testified that he learned of A.P.'s birth a few days after 
delivery and that he has known since then that Paul's name was on her birth 
certificate. The means of discovering the alleged fraud were no less available 
to Lopez in February 2005 than they were in April 2012. Lopez waited until the 
child was seven (7) years old to intervene, seek vacation of the 2008 custody 
order, and seek to establish paternity. Therefore, based on the Oklahoma Supreme 
Court's interpretation of pre-UPA law in Hill, Lopez's paternity action 
is time-barred.1
¶12 We also note that the October 7, 2008 custody order did not establish 
paternity. Paternity had been previously established by the acknowledgment of 
paternity signed by Paul February 8, 2005. The trial court remarked in the 
October 7, 2008 custody order that Paul "was previously found to be the father 
of the minor child. [Paul] signed on February 8, 2005, a DHS affidavit 
acknowledging being the father of the minor child. No objection has been filed." 
The trial court then awarded sole custody to Paul. A proceeding to vacate an 
order for fraud practiced by the successful party in obtaining the order must be 
commenced within two (2) years of the filing of the order. See 12 O.S. §§ 1031(4), 1038. The 
opportunity to vacate the October 7, 2008 order of custody expired in October 
2010. Lopez commenced this proceeding in 2012.
¶13 Even if Lopez had standing to intervene and the motion to vacate was 
timely filed, only the custody, visitation, and child support orders were 
subject to vacation. Paternity was established in February 2005, not in the 
October 2008 order. As previously discussed, no objection was made to Paul's 
acknowledgment of paternity within two (2) years. Furthermore, Lopez failed to 
prove the necessary elements for vacation based on fraud.


[I]n a proceeding under § 1031 to vacate an earlier judgment on the 
    grounds of fraud, the petitioner must: (1) show that he (or she) acted 
    without delay in asserting his (or her) rights after discovering the fraud, 
    (2) establish that he (or she) used diligence in the original action in 
    trying to discover and expose the fraud, (3) provide clear and convincing 
    evidence of the fraud, and (4) demonstrate that there is a substantial 
    likelihood that a new trial will have a different 
result.
Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶ 38, 987 P.2d 1185. Lopez did not act 
without delay in asserting his rights after discovering the alleged fraud, and 
he did not provide clear and convincing evidence that Paul committed fraud. 
Lopez has had notice of the alleged fraud since February 2005. Paul did not 
misrepresent the facts to obtain custody in 2008. Statutorily, paternity had 
been established in favor of Paul when his 2005 acknowledgment of paternity went 
unchallenged. Therefore, Paul's statement that "[n]o person or party other than 
the parties hereto has or claims to have any custody or visitation rights 
concerning the parties' minor child" was legally correct.
¶14 The trial court determined that in 2008, Paul had a duty to notify the 
trial court that Lopez was the "natural" father and to notify Lopez that he was 
seeking custody. Such duty does not exist. The Supreme Court explained in 
Hill that "[t]he significance of the biological connection of a father to 
a child is that it gives the father an opportunity to develop a relationship 
with the child. A trial judge or a litigant is not required to give special 
notice to a nonparty who is presumptively capable of asserting and protecting 
his own rights." Hill, 2005 
OK 11, ¶ 12 (citing Matter of C.J.S., 1995 OK 70, ¶¶ 16, 17, 903 P.2d 304). Lopez admitted that he 
always believed he was A.P.'s biological father and that since her birth, he 
knew Paul was named on the birth certificate as her legal father. Lopez took no 
action to assert his rights until the child was seven (7) years old. Paul, in 
exercising his right to custody as the legal father of A.P., was not required to 
notify Lopez. Lopez had the knowledge and a window of opportunity to assert 
parental rights but failed to do so, resulting in the extinguishment of his 
rights.
¶15 We hold the trial court abused its discretion by vacating the October 7, 
2008 order of custody.

¶16 REVERSED.

JOPLIN, P.J., and HETHERINGTON, V.C.J., concur.

FOOTNOTES

1 In 
Sprowles v. Thompson, 2010 OK 
CIV APP 80, 239 P.3d 981, 
Division IV of the Oklahoma Court of Civil Appeals determined that 10 O.S.Supp.2006 § 7700-308 was a 
statute of repose, rather than a statute of limitations. The court explained 
that because § 7700-308 cut off the right of an acknowledged father to challenge 
the acknowledgment based on fraud after two (2) years, whether or not the 
acknowledged father had discovered the alleged fraud, it was a statute of repose 
and could not be applied retroactively. See id. ¶¶ 14-16. Division IV 
distinguished Sprowles from Hill because "the Oklahoma Supreme 
Court did not cite or otherwise apply § 70 in reaching its decision" in 
Hill. Id. ¶ 21. In Sprowles, Division IV held that the more 
specific § 70 controlled over the more general provisions of 12 O.S. §§ 1031, 1038. See 
id. We note that the Supreme Court did acknowledge § 70 in Hill. 
See Hill v. Blevins, 2005 OK 
11, ¶ 8, 109 P.3d 332. We 
will follow mandatory Supreme Court authority on this 
issue.


Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Court of Civil Appeals Cases CiteNameLevel 2010 OK CIV APP 80, 239 P.3d 981, SPROWLES v. THOMPSONDiscussedOklahoma Supreme Court Cases CiteNameLevel 2000 OK 78, 13 P.3d 480, 71 OBJ        2590, FERGUSON ENTERPRISES, INC. v. H. WEBB ENTERPRISES, INC.Discussed 1995 OK 70, 903 P.2d 304, 66 OBJ        2114, In the Matter of C.J.S.Discussed 2005 OK 11, 109 P.3d 332, HILL v. BLEVINSDiscussed at Length 1980 OK 128, 616 P.2d 1154, Cooper v. CooperDiscussed 1997 OK 132, 954 P.2d 124, 68 OBJ        3523, ENOCHS v. MARTIN PROPERTIES, INCDiscussed 1999 OK 33, 987 P.2d 1185, 70 OBJ        1353, Patel v. OMH Medical Center, Inc.DiscussedTitle 10. Children CiteNameLevel 10 O.S. 7700-308, Proceeding to Challenge Acknowledgment or Denial of Paternity - Burden of ProofCited 10 O.S. 7700-609, Time Limitation for Commencing Proceeding - Signatory to Acknowledgement of Paternity  - OthersCited 10 O.S. 7700-902, Effect of Act on Proceedings Commenced or Executed Before November 1, 2006Cited 10 O.S. 70, Repealed by Laws 2006, HB 2967, c. 116, § 62, eff. November 1, 2006DiscussedTitle 12. Civil Procedure CiteNameLevel 12 O.S. 1031, District Court, Power to Vacate or Modify its Judgments, WhenDiscussed at Length 12 O.S. 1038, Proceedings to Vacate or Modify a Judgment, Decree or OrderCited










