                   This opinion is subject to revision before final
                        publication in the Pacific Reporter

                                   2019 UT 73

                                      IN THE
         SUPREME COURT OF THE STATE OF UTAH

                                JIMMY OLGUIN,
                                   Appellee,
                                         v.
            MARIE ANDERTON and CHRISTOPHER ANDERTON,
                           Appellants.

                               No. 20180098
                         Heard February 22, 2019
                         Filed December 19, 2019

              On Certification from the Court of Appeals

                       Eighth District, Duchesne
                    The Honorable Samuel P. Chiara
                            No. 164000077

                                   Attorneys: 1
           Michael D. Harrington, Jarell A. Dillman, Vernal,
       Troy L. Booher, Julie J. Nelson, Salt Lake City, for appellee
               John D. Hancock, Roosevelt, for appellants


   JUSTICE PETERSEN authored the opinion of the Court, in which
       CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
           JUSTICE HIMONAS, and JUSTICE PEARCE joined.




_____________________________________________________________
   1   Amicus Curiae attorneys are:
    Sean D. Reyes, Att’y Gen., Tyler R. Green, Solic. Gen., Andrew
Dymek, Asst. Att’y Gen., Stanford E. Purser, Deputy Solic. Gen.,
Salt Lake City, for State of Utah.
                         OLGUIN v. ANDERTON
                         Opinion of the Court

   JUSTICE PETERSEN, opinion of the Court:

                          INTRODUCTION
    ¶1 Jimmy Olguin conceived a child with Marie Anderton
(Mother) while she was married to Christopher Anderton
(Husband), who is presumed to be the child’s father under Utah law.
Olguin filed a petition in the district court to adjudicate his paternity
of the child. Mother filed a motion to dismiss, arguing that Olguin
lacked standing under the Utah Uniform Parentage Act (UUPA)
because the child was born within a marriage. The district court
noted that the court of appeals has interpreted the UUPA to deny
standing to an alleged father 2 in Olguin’s circumstances, but it
observed that the court of appeals has not yet addressed the
constitutional implications of its holding. Ultimately, the district
court denied the motion to dismiss, concluding that to deny Olguin
standing would violate his right to procedural due process under the
federal constitution. In pretrial briefing, the parties again raised the
issue of standing. The district court reaffirmed its procedural due
process ruling but declined to conclude that Olguin had a
substantive due process right at stake.
    ¶2 The court of appeals certified this case to us to address the
constitutional issues raised by the parties and ruled upon by the
district court. However, in a companion case that also issues today,
we hold that the UUPA does grant standing to an alleged father,
even when the child was conceived or born during a marriage with a
presumed father. See Castro v. Lemus, 2019 UT 71, ¶¶ 3, 12, 51,
61, --- P.3d ---. Accordingly, Olguin’s constitutional claims are moot.
   ¶3 We affirm the denial of the motion to dismiss on alternative
grounds and remand to the district court.
                           BACKGROUND
   ¶4 Mother has been married to Husband since 2010. 3 Over the
course of their marriage, Mother and Husband have separated
_____________________________________________________________
   2 The UUPA defines “[a]lleged father” as “a man who alleges
himself to be, or is alleged to be, the genetic father or a possible
genetic father of a child, but whose paternity has not been
determined.” UTAH CODE § 78B-15-102(2).
   3  “When reviewing a rule 12(b)(6) motion to dismiss, we accept
the factual allegations in the complaint as true and interpret those
facts, and all reasonable inferences drawn therefrom, in a light most
                                                                  (cont’d.)

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                         Opinion of the Court

several times. On one such occasion, Mother had a romantic
relationship with Jimmy Olguin, and they conceived a child.
    ¶5 Mother and Husband subsequently reconciled, and the child
was born in September 2012. Husband was listed as the child’s father
on the birth certificate. Despite this, Mother contacted Olguin that
December to tell him that she believed he was the child’s biological
father. Subsequent genetic testing established a 99.99 percent
probability that Olguin was indeed the biological father.
    ¶6 From December 2012 until March 2016, Mother and
Husband allowed Olguin to have parent-time with the child. But
Mother terminated contact between the two after the child was
injured during a visit with Olguin.
    ¶7 Soon after, Olguin filed a petition to formally adjudicate the
child’s paternity. Mother moved to dismiss that petition, contending
that subsection 78B-15-607(1) of the UUPA denied standing to
Olguin in this situation. In support, Mother cited to the court of
appeals’ decision in R.P. v. K.S.W., which held that subsection 607(1)
limits standing to rebut the presumption of paternity to only the
mother and the presumed father when the child is born during their
marriage. 4 2014 UT App 38, ¶¶ 26, 44, 320 P.3d 1084.
   ¶8 In his opposition to the motion to dismiss, Olguin conceded
the correctness of the statutory interpretation based on the court of
appeals’ decision in R.P. But he argued that subsection 607(1) of the
UUPA violates his constitutional right to procedural due process.




favorable to the plaintiff as the nonmoving party.” Russell Packard
Dev., Inc. v. Carson, 2005 UT 14, ¶ 34, 108 P.3d 741. We recite the facts
accordingly.
   4  In 2017, after R.P. v. K.S.W., 2014 UT App 38, 320 P.3d 1084,
issued, the Utah Legislature amended Utah Code section 78B-15-607
to also include “a support enforcement agency” as one of the parties
allowed to challenge a child’s paternity “at any time before filing an
action for divorce or in the pleadings at the time of the divorce of the
parents.” See 2017 Utah Laws 632. So in 2014, the court of appeals’
interpretation of subsection 607(1) limited standing to only the
mother and the presumed father. Now, Mother’s similar
interpretation of subsection 607(1) limits standing to only the
mother, the presumed father, and a support enforcement agency.


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                        OLGUIN v. ANDERTON
                        Opinion of the Court

   ¶9 The district court denied Mother’s motion to dismiss in an
order dated December 16, 2016. The district court reasoned that
because R.P. was resolved on statutory grounds, it had no bearing on
Olguin’s constitutional claims. The court then concluded that
dismissing Olguin’s paternity petition for lack of standing under
subsection 607(1) would violate Olguin’s right to procedural due
process under the Fourteenth Amendment to the United States
Constitution.
    ¶10 In preparation for trial, Mother and Olguin submitted trial
briefs. In her brief, Mother reasserted that Olguin lacked standing to
challenge the presumption of paternity under the court of appeals’
decision in R.P. She also argued that the constitutional issues
presented in this case had already been decided by the United States
Supreme Court. See generally Michael H. v. Gerald D., 491 U.S. 110
(1989) (plurality opinion) (addressing both procedural and
substantive due process issues in the context of a California statute
denying standing to natural fathers to rebut the presumption of
paternity under certain circumstances).
    ¶11 In an order dated August 24, 2017, the district court
recognized the “unusual procedural posture” of this case, noting that
it had previously ruled on the standing and procedural due process
issues. Nevertheless, because the parties had not previously briefed
Michael H., the district court reconsidered its prior ruling. The court
acknowledged that it may have misdirected the parties when, in the
December 16, 2016 order, it relied on substantive due process case
law for the proposition that parents have a fundamental liberty
interest in rearing their children. The court thus addressed the
parties’ new substantive due process arguments, ultimately
declining to conclude that Olguin has a substantive due process right
at issue in this matter.
    ¶12 The district court reaffirmed its previous denial of Mother’s
motion to dismiss on procedural due process grounds. The court
concluded that under the facts of this case, Olguin has a protectable
liberty interest in rearing the child. Accordingly, the court
determined that interpreting subsection 607(1) to bar Olguin from
challenging Husband’s presumed paternity would deny Olguin the




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                          Opinion of the Court

procedural safeguards of notice and a meaningful opportunity to be
heard. 5
    ¶13 The parties later stipulated that the case presented
significant constitutional questions that should be resolved before
trial. In a January 12, 2018 order, the district court certified that order
and its December 16, 2016 and August 24, 2017 orders for appeal
pursuant to rule 54(b) of the Utah Rules of Civil Procedure. Mother
and Husband appealed.
    ¶14 The court of appeals determined that the district court
erred in certifying the case under rule 54(b). But it acknowledged
that rule 5(a) of the Utah Rules of Appellate Procedure allows
appellate courts to treat a timely filed notice of appeal from an order
improperly certified under rule 54(b) as a petition for interlocutory
appeal. It therefore construed the notice of appeal as a petition for
interlocutory appeal and granted that petition.
   ¶15 The court of appeals then certified the interlocutory appeal
to us for original review, reasoning that the appeal presents
important questions of constitutional law that have yet to be
decided.
   ¶16 We exercise jurisdiction pursuant to Utah Code section
78A-3-102(3)(b).
                      STANDARD OF REVIEW
   ¶17 “The interpretation and constitutionality of a statute are
questions of law that we review for correctness.” Waite v. Utah Labor
Comm’n, 2017 UT 86, ¶ 5, 416 P.3d 635.
                               ANALYSIS
    ¶18 The court of appeals certified this case to us to determine
“whether Utah Code section 78B-15-607(1) violates the procedural
due process requirements of the Fourteenth Amendment of the
United States Constitution insofar as the statute limits standing to
challenge the paternity of a child born during a marriage to the
presumed father and mother of the child.” We note that Olguin also
raises a substantive due process claim. And alleged fathers in
companion cases, in which we also issue opinions today, raise these
due process and equal protection challenges to subsection 607(1). See
_____________________________________________________________
   5 At this time, the district court also granted Olguin’s motion to
join Husband as a necessary party.


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                         OLGUIN v. ANDERTON
                         Opinion of the Court

Castro v. Lemus, 2019 UT 71, ¶¶ 53, 57, --- P.3d --- (arguing the UUPA
violates alleged fathers’ state and federal procedural and substantive
due process rights as well as principles of equal protection); Mackley
v. Openshaw, 2019 UT 74, ¶ 2 n.2, --- P.3d --- (same); Hinkle v. Jacobsen,
2019 UT 72, ¶ 19, --- P.3d --- (arguing the UUPA violates the due
process and equal protection clauses of the federal constitution).
    ¶19 However, we hold in one companion case, Castro, that the
UUPA does grant standing to an alleged father under
subsection 602(3), and subsection 607(1) does not alter this when the
child was conceived or born during a marriage with a presumed
father. 2019 UT 71, ¶¶ 3, 12, 51, 61. Therefore, we need not consider
whether the contrary interpretation of subsection 607(1) would be
unconstitutional. Accordingly, we affirm the district court’s denial of
the motion to dismiss on alternative grounds. Specifically, we affirm
the district court’s ruling that Olguin has standing to rebut the
presumption of paternity.
    ¶20 It is within our discretion “to affirm [a] judgment on an
alternative ground if it is apparent in the record.” Madsen v. Wash.
Mut. Bank fsb, 2008 UT 69, ¶ 26, 199 P.3d 898; see also Bailey v. Bayles,
2002 UT 58, ¶ 10, 52 P.3d 1158 (“[A]n appellate court may affirm the
judgment appealed from ‘if it is sustainable on any legal ground or
theory apparent on the record, even though such ground or theory
differs from that stated by the trial court to be the basis of its ruling
or action, and this is true even though such ground or theory is not
urged or argued on appeal by appellee, was not raised in the lower
court, and was not considered or passed on by the lower court.’”
(citation omitted)). For a legal theory “[t]o be ‘apparent on the
record,’ ‘[t]he record must contain sufficient and uncontroverted
evidence supporting the ground or theory to place a person of
ordinary intelligence on notice that the prevailing party may rely
thereon on appeal.’” Francis v. State, Utah Div. of Wildlife Res., 2010
UT 62, ¶ 10, 248 P.3d 44 (second alteration in original) (citation
omitted). When the record contains this evidence, we may affirm on
alternative grounds. We opt to do so here.
   ¶21 Mother and Husband have raised two additional
arguments in this interlocutory appeal that we briefly address. First,
they argue that granting Olguin standing to rebut Husband’s
presumption of paternity in effect terminates Husband’s parental
rights and violates his fundamental liberty interests in his marriage
and rearing children born into that marriage.



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                         Opinion of the Court

   ¶22 We note that our decision today holds only that the UUPA
grants standing to Olguin; it should not be construed to hold that
Olguin has rebutted Husband’s presumed paternity. And this
opinion does not impact the district court’s ability to make any other
determinations it deems relevant under the UUPA. Accordingly, any
argument that Husband’s parental rights have been terminated is
premature.
    ¶23 Second, Mother and Husband argue that the district court
erred in limiting which issues would be considered at trial on
remand. They reference a paragraph of the January 12, 2018 order.
But the record and briefing before us is inadequate to review pretrial
evidentiary rulings made by the district court. Additionally, that is
not the type of issue this court would generally address before trial
in an interlocutory proceeding. See UTAH R. APP. P. 5(g) (“An appeal
from an interlocutory order may be granted only if it appears that
the order involves substantial rights and may materially affect the
final decision or that a determination of the correctness of the order
before final judgment will better serve the administration and
interests of justice.”). Accordingly, we decline to address the district
court’s pretrial evidentiary decisions.
                           CONCLUSION
    ¶24 We conclude that the UUPA grants standing to Olguin to
adjudicate his paternity of the child. Accordingly, we affirm the
district court’s denial of Mother’s motion to dismiss. And we
remand to the district court for further proceedings consistent with
this opinion and our holding in Castro v. Lemus, 2019 UT 71, ---
P.3d ---.




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