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BATES v. COPELAND2015 OK CIV APP 30347 P.3d 318Case Number: 112506Decided: 03/06/2015Mandate Issued: 03/31/2015DIVISION IIITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III
Cite as: 2015 OK CIV APP 30, 347 P.3d 318

COLEMAN BATES, III, Plaintiff/Appellant,v.ANGELA 
COPELAND, Defendant/Appellee.

IN RE THE MARRIAGE OF:
MATTHEW WAYNE COPELAND, II, 
Petitioner/Appellee,andANGELA COPELAND, Respondent/Appellee,
STATE OF OKLAHOMA, ex rel. DEPARTMENT OF HUMAN SERVICES, CHILD 
SUPPORT ENFORCEMENT SERVICES, Appellee.

APPEAL FROM THE DISTRICT COURT OF MAYES COUNTY, OKLAHOMA
HONORABLE REBECCA J. GORE, JUDGE

AFFIRMED

Paul E. Blevins, Blevins Law Office, Inc., Pryor, Oklahoma, for 
Appellant,Bryan A. Rock, K. Ellis Ritchie, P.C., Pryor, Oklahoma, for 
Appellee Matthew Wayne Copeland, II,Amy E. Page, Department of Human 
Services, Child Support Enforcement Services, Tulsa, Oklahoma, for Appellee 
State of Oklahoma, ex rel. Department of Human Services, Child Support 
Enforcement Services.


Larry Joplin, Judge:
¶1 Plaintiff/Appellant Coleman Bates, III (Bates or Plaintiff), seeks review 
of the trial court's order dismissing his action to determine paternity of a 
child born to Defendant/Appellee Angela Copeland (Mother or Defendant). In this 
proceeding, Bates asserts the trial court erred as a matter of law and fact in 
holding he had not demonstrated an excuse for the untimely filing of his 
petition to determine paternity.
¶2 Mother and Petitioner/Appellee Matthew Wayne Copeland, II (Copeland or 
Petitioner) married on October 29, 2003. During the marriage, one child was born 
in November 2003.
¶3 Mother and Copeland separated in July 2008. After the separation, Mother 
and Copeland continued to have sexual relations. After the separation, Mother 
and Bates also had a sexual relationship. Mother gave birth to a child on 
September 24, 2009. The birth certificate of the child listed "Bates" as the 
child's last name.
¶4 On September 25, 2009, Bates executed a form Acknowledgment of Paternity 
(AOP) of the child. The AOP, signed by both Bates and Mother, asked, "Was mother 
married at time of conception or birth?" Bates and Mother answered, "no," 
although Mother was still legally married to Copeland, albeit separated.
¶5 On August 23, 2013, after receipt of notice of a pending child support 
action by Appellee State of Oklahoma, ex rel. Department of Human Services, 
Child Support Services (State), Copeland commenced an action for dissolution of 
his marriage to Mother. Citing the pending child support action and the birth 
certificate's stated last name of the child, Copeland alleged paternity of the 
child was uncertain, and genetic testing should be conducted. The trial court 
subsequently entered a temporary order, by which Copeland and Mother agreed to 
shared joint custody of the child pendente lite.
¶6 On October 4, 2013, Bates commenced an action to determine paternity of 
the child, now four years old. On October 11, 2013, Copeland filed a Notice of 
Another Action Pending, i.e., the action for dissolution of the marriage, and 
Motion to Stay proceedings in the paternity action. On October 14, 2013, State 
filed an objection to the petition to determine paternity, and sought either 
dismissal of the paternity action or a stay pending further proceedings in the 
dissolution action. On November 12, 2013, Copeland filed a Motion to Vacate the 
AOP and Motion to Dismiss the paternity action, and alleged a continuing sexual 
relationship with Mother after their separation.
¶7 On December 2, 2013, the parties appeared for a hearing on the Motion to 
Vacate and Motion to Dismiss the paternity action. None of the parties presented 
further evidence or testimony, rather relying solely on the facts established by 
the pleadings and the arguments of their respective attorneys, and the trial 
court took the matter under advisement.
¶8 By order filed December 30, 2013, the trial court issued its ruling. The 
trial court held:


The basis of [Copeland's] and [State's] request to vacate the 
    Acknowledgment of Paternity is that [Copeland's] presumption of paternity 
    has not been properly rebutted under the Uniform Parentage Act (UPA). Under 
    Title 10 O.S. Section 7700-204 (A)(1), a man is presumed to be the father of 
    a child if he and the mother are married to each other and the child is bom 
    during the marriage. The marital presumption imposed under UPA may only be 
    rebutted by (1) a timely filing of a Husband's Denial of Paternity 
    accompanied by a properly executed Acknowledgment of Paternity; or in the 
    alternative, (2) initiating a proceeding to adjudicate the child's paternity 
    under Article 6 of the Uniform Parentage Act. Title 10 O.S. Section 
    7700-303, Section 7700-204 (B).
However, such a proceeding to adjudicate parentage of a child having a 
    presumed father must be brought no later than two (2) years after the 
    child's birth, unless the Court determines that (1) the presumed father and 
    mother did not cohabitate or engage in sexual intercourse during the 
    probable time of conception AND the presumed father never held the child out 
    as his own; OR (2) by agreement of the biological father, the presumed 
    father, and the mother to adjudicate the biological father's parentage. 
    Title 10 O.S. Section 7700-607(B), Section 7700-607(C).
The Court finds that [the child] was born during the marriage of Copeland 
    and Mother Copeland. The Court finds that because the child was born during 
    this marriage, [Copeland] is the presumed father. [Copeland] failed to 
    execute the required Denial of Paternity. While [Mother] and [Bates] 
    attempted to execute an Acknowledgment of Paternity, the execution of the 
    AOP alone is not enough to rebut [Copeland's] presumption of paternity. The 
    Court finds that both an Acknowledgment of Paternity signed by the 
    biological father as well as a Denial of Paternity signed by the presumed 
    father must be properly executed and that neither is valid until both are 
    signed. See Title 10 O.S. 
    7700-304. Accordingly, the Court finds that [Mother's] and [Bates's] 
    executed Acknowledgment of Paternity is not valid. [Bates], therefore, 
    cannot be an acknowledged father and must seek to be adjudicated the child's 
    father.
The Court finds that [Bates] filed his action to be judicially declared 
    [the child's] father on October 4, 2013. This, however, is well past the two 
    (2) year limitation, the child having been born September 24, 2009. As such, 
    [Bates] can only overcome the marital presumption if he can produce 
    sufficient evidence that [Copeland] and [Mother] did not cohabitate or 
    engage in sexual intercourse during the probable time of conception. The 
    Court finds that although [Copeland] and [Mother] were separated at the time 
    of conception, the only information presented to the Court concerning the 
    Copelands' continued sexual relationship is from [Copeland's] verified 
    Petition for Dissolution of Marriage. Per that Petition, [Copeland] and 
    [Mother] continued to engage in a sexual relationship during the time of 
    separation. [Bates] has failed to produce any evidence that [Copeland] and 
    [Mother] did not engage in sex during the probable time of conception.. 
    . .
[Copeland] is the presumed father, having been married to the [Mother] at 
    the time of [the child's] birth. [Copeland] did not sign a Denial of 
    Paternity and that such was required as well as [Mother's] and [Bates's] 
    Acknowledgment of Paternity before either can be valid. The Court finds, 
    therefore, that [Bates's] Acknowledgment of Paternity is not a valid 
    document adjudicating [Bates] as Father. The Court further finds that 
    [Bates] has failed to bring an action to adjudicate the child's parentage 
    within the two (2) years as required by law and that further [Bates] has 
    failed to establish an exception to the time 
limitation.
The trial court accordingly granted Copeland's Motion to Vacate the AOP and 
his Motion to Dismiss Bates's petition to determine paternity. Bates 
appeals.
¶9 In this appeal, Bates asserts the trial court erred as a matter of law in 
holding the AOP executed by him and Mother was invalid because Copeland did not 
also execute a denial of paternity. Particularly, Bates argues that, contrary to 
the trial court's conclusion, 10 
O.S. §7700-304 does not mandate the execution of both an 
acknowledgment of paternity and a denial of paternity, and that Oklahoma 
law requires the execution of both an acknowledgment of paternity 
and a denial of paternity only: (1) under 10 O.S. §7700-302(A), when the AOP 
states on its face that there is a presumed father; (2) under 10 O.S. §7700-305(B), when the 
presumed father seeks to discharge himself from the rights and duties of a 
parent; and (3) under 10 O.S. 
§7700-303(1), which conditions the validity of a denial of paternity on the 
execution of an AOP, but which does not condition the validity of an AOP on the 
execution of a denial of paternity. In this proposition, Bates argues that the 
AOP he and Mother executed, where they falsely stated Mother was not married at 
the time of conception, is, at best, voidable under 10 O.S. §7700-302(C), not void 
under 10 O.S. §7700-302(B). 
See, e.g., Kincaid v. Black Angus Motel, Inc., 1999 OK 54, ¶7, 983 P.2d 1016, 1018-10191; Great Am. 
Reserve Ins. Co. of Dallas v. Strain, 1962 OK 241, ¶5, 377 P.2d 583, 586-587.2
¶10 The facts of this case are not seriously disputed. The issues presented 
in the present case turn on the application of the statutory provisions 
governing the presumption of paternity, an acknowledgment of paternity, and the 
time for commencement of an action to determine paternity to the undisputed 
facts of this case. The construction and application of these statutes to the 
undisputed facts present questions of law, which we review de novo. In 
re: Assessment of Personal Property Taxes, 2008 OK 94, ¶17, 234 P.3d 938, 946; Multiple 
Injury Trust Fund v. Harper, 2008 OK CIV APP 82, ¶10, 194 P.3d 790, 794; Oklahoma 
Petroleum Workers' Compensation Association v. Mid-Continent Casualty Co., 
1994 OK CIV APP 107, ¶5, 887 P.2d 335, 337.
¶11 Under §7700-204 of title 10, O.S.:


A. A man is presumed to be the father of a child if:
1. He and the mother of the child are married to each other and the child 
    is born during the marriage;
2. He and the mother of the child were married to each other and the 
    child is born within three hundred (300) days after the marriage is 
    terminated by death, annulment, declaration of invalidity, dissolution of 
    marriage or after decree of separation;
3. Before the birth of the child, he and the mother of the child married 
    each other in apparent compliance with law, even if the attempted marriage 
    is or could be declared invalid, and the child is born during the invalid 
    marriage or within three hundred (300) days after its termination by death, 
    annulment, declaration of invalidity, a decree of separation, or dissolution 
    of marriage;
4. After the birth of the child, he and the mother of the child married 
    each other in apparent compliance with law, whether or not the marriage is 
    or could be declared invalid, and he voluntarily asserted his paternity of 
    the child, and:


a. the assertion is in a record with the State Department of Health, 
        Division of Vital Records or the Department of Human Services,
b. he agreed to be and is named as the child's father on the child's 
        birth certificate, or
c. he promised in a record to support the child as his own; 
      or
5. For the first two (2) years of the child's life, he resided in the 
    same household with the child and openly held out the child as his own.
B. A presumption of paternity established under this section may be 
    rebutted only by an adjudication under [10 O.S. §§7700-601 et 
  seq.]
An action to adjudicate the paternity of a child having a presumed father is 
controlled by §7700-607 of title 10, O.S., which provides:


A. Except as otherwise provided in subsection B of this section, a 
    proceeding brought by a presumed father, the mother, or another individual 
    to adjudicate the parentage of a child having a presumed father shall be 
    commenced not later than two (2) years after the birth of the child.
B. A proceeding seeking to disprove the father-child relationship between 
    a child and the child's presumed father may be maintained at any time in 
    accordance with Section 7700-608 of this title if the court, prior to an 
    order disproving the father-child relationship, determines that:


1. The presumed father and the mother of the child neither cohabited 
        nor engaged in sexual intercourse with each other during the probable 
        time of conception; and
2. The presumed father never openly held out the child as his 
      own.
C. A proceeding seeking to disprove the father-child relationship between 
    a child and the child's presumed or acknowledged father may be maintained at 
    any time if the court determines that the biological father, presumed or 
    acknowledged father, and the mother agree to adjudicate the biological 
    father's parentage in accordance with Sections 7700-608 and 7700-636 of this 
    title. . . . In a proceeding under this section, the court shall enter an 
    order either confirming the existing father-child relationship or 
    adjudicating the biological father as the parent of the child. A final order 
    under this section shall not leave the child without an acknowledged or 
    adjudicated father.
So, under §7700-607(A), a proceeding to adjudicate the paternity of a child 
having a presumed father must be commenced within two years of the birth of the 
child, unless the court expressly determines either (1) pursuant to 
§7700-607(B), the facts surrounding the conception of the child, coupled with 
the failure of the presumed father to acknowledge paternity, do not support the 
presumption of paternity, or (2) pursuant to §7700-607(C), the interested 
parties have agreed to a determination of paternity by genetic testing pursuant 
to §7700-608 and §7700-636.3
¶12 There are several sections touching on acknowledgments and denials of 
paternity. Section 7700-302 of title 10, O.S., governs the requirements of an 
acknowledgment of paternity, and provides:


A. An acknowledgment of paternity shall:


1. Be in a record and on the form prescribed by the Department of 
        Human Services . . . ;
2. Be signed, or otherwise authenticated, under penalty of perjury by 
        the mother and by the man seeking to establish his paternity;
3. State that the child whose paternity is being acknowledged:
a. does not have a presumed father, or has a presumed father whose 
        full name is stated, and
b. does not have another acknowledged or adjudicated father;
4. State whether there has been genetic testing and, if so, that the 
        acknowledging man's claim of paternity is consistent with the results of 
        the testing; and
5. State that the signatories understand that the acknowledgment is 
        the equivalent of a judicial adjudication of paternity of the child and 
        that a challenge to the acknowledgment is permitted only under limited 
        circumstances and is barred after two (2) 
    years.
¶13 B. An acknowledgment of paternity shall be void if it:


1. States that another man is a presumed father, unless a denial of 
    paternity signed or otherwise authenticated by the presumed father is filed 
    with the State Department of Health, Division of Vital Records; or
2. States that another man is an acknowledged or adjudicated 
  father.
C. An acknowledgment of paternity is voidable if it falsely denies the 
existence of a presumed, acknowledged, or adjudicated father of the child.
Section 7700-303 of title 10, O.S., governs the execution and effect of a 
denial of paternity, and provides that a denial of paternity is valid only 
if:


1. An acknowledgment of paternity signed, or otherwise authenticated, by 
    another man is filed pursuant to [10 O.S. §7700-312];
2. The denial is in a record, and is signed, or otherwise authenticated, 
    under penalty of perjury;
3. The presumed father has not previously:


a. acknowledged his paternity, unless the previous acknowledgment has 
        been rescinded pursuant to [10 O.S. §7700-307] or 
        successfully challenged pursuant to [10 O.S. §7700-308], or
b. been adjudicated to be the father of the child; 
    and
4. The denial is signed not later than two (2) years after the birth of 
    the child.
Section 7700-304 of title 10, O.S., governs the execution of acknowledgments 
and denials of paternity, and provides in pertinent part:


A. An acknowledgment of paternity and a denial of paternity may be 
    executed separately or simultaneously. If the acknowledgment and denial are 
    both necessary, neither is valid until both are executed.
B. An acknowledgment of paternity or a denial of paternity may be signed 
    before the birth of the child.
C. Subject to subsection A of this section, an acknowledgment of 
    paternity or denial of paternity takes effect on the birth of the child or 
    the execution of the document, whichever occurs 
later.
Section 7700-305 of title 10, O.S., governs the effect of acknowledgments and 
denials of paternity, and provides:


A. Except as otherwise provided in [10 O.S. §§7700-307 and 7700-308], 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.
B. Except as otherwise provided in [10 O.S. §§7700-307 and 
    7700-308], a valid denial of paternity by a presumed father when executed in 
    conjunction with a valid acknowledgment of paternity is equivalent to an 
    adjudication of the nonpaternity of the presumed father and discharges the 
    presumed father from all rights and duties of a parent.4
¶14 Copeland and Mother separated in July 2008. According to Copeland's 
verified petition for dissolution of his marriage to Mother, he continued to 
have a sexual relationship with Mother after their separation. Bates introduced 
no evidence to controvert Copeland's sworn petition establishing he continued to 
have a sexual relationship with Mother after their separation. The child was 
born in September 2009, after the separation of Copeland and Mother, but while 
Copeland and Mother remained married.
¶15 On these undisputed facts, Copeland is the presumed father of the child 
born to Mother in September 2009 under 10 O.S. §7700-204(A)(1). Copeland's 
presumption of paternity cannot be displaced absent either (1) an adjudication 
of his non-paternity by a court of competent jurisdiction (a) in an action for 
divorce as permitted by 43 O.S. 
§109.2,5 
or (b) as mandated by §7700-204(B), in a timely commenced action under 10 O.S. §7700-607, or (2) a timely, 
validly executed and filed denial of paternity as prescribed by 10 O.S. §7700-303 and 
§7700-305(B).
¶16 In this respect, the law does not ascribe controlling effect to the AOP 
executed by Bates and Mother. To hold that Copeland's presumption of paternity 
may be overcome based only on the AOP executed by Bates and Mother, absent an 
adjudication of Copeland's non-paternity or Copeland's timely executed and filed 
denial of paternity, renders the statutory presumption of paternity wholly 
without force and effect, and would permit the divestiture of the presumed 
father-child relationship without affording the presumed father notice and an 
opportunity to be heard in a proceeding affecting the most substantial and 
important rights of a parent.
¶17 Copeland apparently chose not to question his presumed paternity of the 
child born to Mother in September 2009 until notified of the State's child 
support enforcement action in August 2013. He then commenced for dissolution of 
the marriage.
¶18 We hold that Copeland was the presumed father of the child born to Mother 
during their marriage, and absent an adjudication of Copeland's non-paternity or 
Copeland's timely executed and filed denial of paternity, the AOP executed by 
Bates and Mother, falsely stating Mother was not married at the time of 
conception or birth of the child, was voidable under 10 O.S. §7700-302(C). The trial 
court did not err as a matter of law or fact in vacating the AOP executed by 
Bates and Mother.
¶19 Further, Bates proved no excuse for commencement of the action to 
determine paternity more than two years after the birth of the child as provided 
in §7700-607(B). The trial court did not err as a matter of law or fact in 
dismissing the action to determine paternity commenced by Bates more than two 
years after the child's birth.

¶20 The order of the trial court is AFFIRMED.

MITCHELL, P.J., and HETHERINGTON, C.J., concur.

FOOTNOTES

1 "'. . . 
[A]n act declared to be void by statute which is malum in se or against public 
policy is utterly void and incapable of ratification, but an act or contract so 
declared void, which is neither wrong in itself nor against public policy, but 
which has been declared void for the protection or benefit of a certain party, 
or class of parties, is voidable only and is capable of ratification by the acts 
or silence of the beneficiary or beneficiaries . . . such an act or contract is 
valid until voided, not void until validated, and it is subject to ratification 
and estoppel.'" (Citations omitted.)

2 "The 
word 'void' admits of more than one meaning. A contract may be void in the sense 
of being illegal; if so, the obligation, being prohibited by law, is a nullity 
in its contemplation; hence incapable of affirmance, ratification and 
enforcement. In some context the word void may be construed as meaning merely 
voidable; that is, the contract continues in force and effect until its timely 
repudiation or rescission by an affirmative act of the party entitled to avoid 
the obligation." (Citation omitted.)

3 Section 
7700-608 of title 10, O.S.: authorizes the denial of a motion to compel genetic 
testing if "[t]he conduct of the mother or the presumed or acknowledged father 
estops that party from denying parentage[,] and [i]t would be contrary to the 
child's best interests to disprove the father-child relationship between the 
child and the presumed or acknowledged father"; sets out factors to be 
considered in the determination to grant or deny genetic testing; and, directs 
entry of an order adjudicating the paternity of the presumed or acknowledged 
father upon denial of a motion to compel testing. Section 7700-636 of title 10, 
O.S., specifies the requisites for an order adjudicating paternity, including 
identification of the child, and a change of the child's surname if necessary, 
and permits assessment of costs.

4 Section 
7700-307(A) of title 10, O.S., permits the rescission of an acknowledgment or 
denial of paternity under some circumstances: "A signatory may sign a rescission 
of acknowledgment of paternity or sign a rescission of denial of paternity 
before the earlier of: 1. Sixty (60) days after the effective date of the 
acknowledgment; or 2. The date of the first hearing, in a proceeding to which 
the signatory is a party, before a court to adjudicate an issue relating to the 
child, including a proceeding that establishes support." Section 7700-308(A) of 
title 10, O.S., requires commencement of an action to rescind an acknowledgment 
or denial of paternity "on the basis of fraud, duress or material mistake of 
fact . . . [w]ithin two (2) years after the acknowledgment or denial is 
executed."

5 "Except 
as otherwise provided by Section 7700-607 of Title 10 of the Oklahoma Statutes, 
in any action concerning the custody of a minor unmarried child or the 
determination of child support, the court may determine if the parties to the 
action are the parents of the children. . . ."


Citationizer© Summary of Documents Citing This Document


Cite
Name
Level


None Found.


Citationizer: Table of Authority


Cite
Name
Level


Oklahoma Court of Civil Appeals Cases
 CiteNameLevel
 1994 OK CIV APP 107, 887 P.2d 335, 65 OBJ        4128, Oklahoma Petroleum Workers' Compensation Ass'n v. Mid-Continent Cas. Co.Discussed
 2008 OK CIV APP 82, 194 P.3d 790, MULTIPLE INJURY TRUST FUND v. HARPERDiscussed
Oklahoma Supreme Court Cases
 CiteNameLevel
 1962 OK 241, 377 P.2d 583, GREAT AM. RESERVE INS. CO. OF DALLAS v. STRAINDiscussed
 2008 OK 94, 234 P.3d 938, IN THE MATTER OF THE ASSESSMENT OF PERSONAL PROPERTY TAXESDiscussed
 1999 OK 54, 983 P.2d 1016, 70 OBJ        1829, Kincaid v. Black Angus Motel, Inc.Discussed
Title 10. Children
 CiteNameLevel
 10 O.S. 7700-204, Presumption of Paternity - RebuttalCited
 10 O.S. 7700-302, Content and Form of Acknowledgment - Void and Voidable Acknowledgments - AuthenticationDiscussed at Length
 10 O.S. 7700-303, Signed Denial of Paternity - ValidityDiscussed
 10 O.S. 7700-304, Simultaneous Documents - Time of Execution - Signature of MinorDiscussed
 10 O.S. 7700-305, Effect of Valid Acknowledgment or Denial of PaternityCited
 10 O.S. 7700-307, Recission of Acknowledgment or Denial of PaternityDiscussed
 10 O.S. 7700-308, Proceeding to Challenge Acknowledgment or Denial of Paternity - Burden of ProofCited
 10 O.S. 7700-601, Civil Proceeding to Adjudicate ParentageCited
 10 O.S. 7700-607, Limitations of ActionsCited
Title 43. Marriage
 CiteNameLevel
 43 O.S. 109.2, Determination of Paternity, Custody and Child SupportCited













