                 IN THE SUPREME COURT OF IOWA
                             No. 11–1581

                          Filed June 1, 2012

JOSEPH O. DIER,

      Appellant,

vs.

CASSANDRA JO PETERS,

      Appellee.

________________________________________________________________________

      Appeal from the Iowa District Court for Grundy County, David F.

Staudt, Judge.



      A disestablished father appeals a district court order dismissing

his common law action for fraud based on misrepresentation of

paternity.   DISTRICT COURT JUDGMENT REVERSED AND CASE

REMANDED.



      Barry S. Kaplan of Kaplan, Frese & Nine, Marshalltown, for

appellant.



      Lynn J. Wiese of Barker, McNeal, Wiese & Holt, Iowa Falls, for

appellee.
                                            2

MANSFIELD, Justice.

         This case presents the question whether an individual who made

voluntary expenditures based on a mother’s fraudulent representation

that he had fathered her child has a cause of action against the mother

for recovery of those payments. Because we conclude that such a cause

of action is consistent with traditional concepts of common law fraud,

there is no prevailing public policy reason against recognizing such a

cause of action, and Iowa’s statutes do not speak to the issue, we hold

that a cause of action may be pursued.                 Accordingly, we reverse the

judgment of the district court granting the mother’s motion to dismiss

and remand for further proceedings.

         I. Factual Background and Procedural History.

         Because this case was decided on a motion to dismiss for failure to

state a claim, we assume the factual allegations of the petition are true.

O.D. was born to Cassandra Jo Peters on February 10, 2009.                   Peters

knew that Joseph O. Dier was not the child’s biological father, but

nonetheless      told    Dier   that   he       was.    Based   on   the   mother’s

representations, Dier provided financial support for the mother and the

child.

         Dier filed an application in the district court to establish custody of

the minor child.        After Peters received the report of the child custody

evaluator, she was afraid she would not get custody of the child and

requested a paternity test.        That test excluded Dier as the biological

father. Dier then requested a second paternity test which again excluded

him as the biological father.

         On August 2, 2011, Dier filed a separate petition at law seeking

reimbursement from Peters of monies “expended to the Defendant,

monies for the minor child, and monies expended in custody litigation.”
                                     3

On August 25, Peters moved to dismiss the petition. She asserted that

Dier’s petition “fail[ed] to state a claim upon which relief can be granted

for the reason that the State of Iowa does not recognize an action for

‘paternity fraud’ nor has the Iowa Legislature created any such action by

statute.”   Dier resisted the motion, arguing that Peters “engaged in

fraudulent activity in enticing me to believe that I was the child’s father

and securing financial assistance from me from the beginning of the

child’s birth until recently.” He asked that the district court “overrule

the Motion to Dismiss as this matter is fraudulent and the Defendant

has acted with utmost malice and hatred.”

      On September 20, 2011, the district court granted Peters’ motion

to dismiss.    In its order dismissing Dier’s action, the trial court

concluded that the “current status of the law demands that this case be

dismissed.” Dier now appeals.

      II. Standard of Review.

      We review a district court’s ruling on a motion to dismiss for the

correction of errors at law. McGill v. Fish, 790 N.W.2d 113, 116 (Iowa

2010). “We accept as true the facts alleged in the petition and typically

do not consider facts contained in either the motion to dismiss or any of

its accompanying attachments.” Id.

      III. Analysis.

      The sole issue on appeal is whether Iowa law allows a putative

father to bring a paternity fraud action against a biological mother to

obtain   reimbursement    of   payments   that   were   voluntarily   made.

“Paternity fraud,” also known as “misrepresentation of biological

fatherhood” or “misrepresentation of paternity,” “occurs when a mother

makes a representation to a man that the child is genetically his own

even though she is aware that he is not, or may not be, the father of the
                                           4

child.”    Hodge v. Craig, No. M2009–00930–COA–R3–CV, 2010 WL

4024990, at *12 & n.9 (Tenn. Ct. App. Oct. 13, 2010) (citation and

internal quotation marks omitted), appeal granted (May 25, 2011).

Numerous courts around the nation have considered whether a putative

father may bring an independent claim for damages against a biological

mother based on paternity fraud.            See Day v. Heller, 653 N.W.2d 475

(Neb. 2002); Miller v. Miller, 956 P.2d 887 (Okla. 1998).                Unlike here,

paternity fraud claims frequently have been accompanied by claims of

intentional    infliction    of   emotional     distress    or   have     sought     the

reimbursement of court-ordered child support payments as damages.

See Day, 653 N.W.2d at 77–78; Miller, 956 P.2d at 891, 905.                        Dier,

however, seeks only reimbursement of payments that he made without

court compulsion.

       Courts in other jurisdictions are divided as to whether to recognize

paternity fraud claims.           Courts disallowing such claims have relied

heavily on considerations of public policy and child welfare. 1                 Courts

       1Nagy   v. Nagy, 258 Cal. Rptr. 787, 790–91 (Ct. App. 1989) (finding that an ex-
husband’s fraud claim based on the ex-wife’s misrepresentation of paternity during the
parties’ marriage was barred by public policy); Parker v. Parker, 950 So.2d 388, 395
(Fla. 2007) (holding that a biological mother’s misrepresentation of paternity during a
dissolution of marriage proceeding constituted intrinsic fraud and thus res judicata
precluded an independent action for compensatory damages for past and future child
support obligations, while also suggesting that “a civil suit for compensatory damages is
not the proper vehicle” for dealing with paternity fraud); Doe v. Doe, 747 A.2d 617, 623–
24 (Md. 2000) (concluding that a putative father’s claims seeking damages for fraud and
intentional infliction of emotional distress resulting from the mother’s
misrepresentation of paternity during their marriage were barred by public policy); Day,
653 N.W.2d at 479, 482 (finding that public policy and child welfare concerns barred a
putative father’s fraud action seeking to recover child support payments he was ordered
to pay based on his wife’s misrepresentation that he was the child’s biological father);
Pickering v. Pickering, 434 N.W.2d 758, 761–62 (S.D. 1989) (determining that a putative
father’s action against his estranged wife for fraud and deceit arising from her conduct
in intentionally failing to tell him that child born in wedlock was not his could not be
maintained as matter of public policy as such matters were “not one[s] in which it is
appropriate for the courts to intervene”); Hodge, 2010 WL 4024990, at *12 n.12
(reversing district court’s award of child support, medical expenses, and insurance
                                            5

allowing paternity fraud claims have concluded that paternity fraud is

not dissimilar from any other tort claim and should be actionable

provided the elements of the tort are met. See G.A.W., III v. D.M.W., 596

N.W.2d 284, 290 (Minn. Ct. App. 1999).                   These courts have either

discounted the public policy concerns or concluded that the interest in

recompensing the putative father and discouraging paternity fraud

outweighed the potential harm to the child. 2

________________________________
premiums paid by putative father as well as stand-alone award of emotional distress
damages while declining to “express an opinion on whether an award of compensatory
damages for pecuniary losses not related to child support would have been affirmed”).
Notably, many of these decisions involve alleged misrepresentations of paternity as to
children who were born when the parties were married—a circumstance not present
here.
       2Koelle  v. Zwiren, 672 N.E.2d 868, 878–89 (Ill. App. Ct. 1996) (holding that a
putative father stated claims against a biological mother for fraud and intentional
infliction of emotional distress based on misrepresentation of paternity and stating that
“public policy does not serve to protect people engaging in” paternity fraud); Denzik v.
Denzik, 197 S.W.3d 108, 113 (Ky. 2006) (holding that a putative father could recover
child support payments previously made to his former wife because the support
obligation arose from her fraudulent and years-long claim that he was the child’s
biological father); Zink v. Zink, 687 A.2d 229, 233 (Me. 1996) (reversing a lower court’s
dismissal of a putative father’s separate action for misrepresentation of paternity
without expressly reaching the validity of such a claim); G.A.W., III, 596 N.W.2d at 290
(concluding “there is no recognized legal barrier preventing a person from bringing
fraud, misrepresentation, or infliction of emotional distress claims” based on
misrepresentation of paternity and such claims are not against public policy); Miller,
956 P.2d at 896, 904–05 (holding that a tort action seeking damages for fraud and
intentional infliction of emotional distress based on misrepresentation of paternity was
not barred by the noncontestable statutory presumption of legitimacy but the putative
father was not entitled to restitution of child support payments).
        See also State ex rel. P.M. v. Mitchell, 930 P.2d 1284, 1289 (Alaska 1997)
(allowing a paternity fraud victim to seek child support reimbursement from the state);
DiMichele v. Perrella, No. CV106004536, 2011 WL 1026184, *6–9, 12 (Conn. Super. Ct.
Feb. 23, 2011) (finding a putative father’s causes of action against biological father
based upon fraud, intentional infliction of emotional distress, and negligent infliction of
emotional distress were actionable but his claim for child support reimbursement was
not); Cohen v. Nudelman, 604 S.E.2d 580, 586 (Ga. Ct. App. 2004) (supporting paternity
fraud claim against biological mother in dictum by stating that “[former husband] may
have alleged a separate fraud claim sounding in tort” but did not); Ghrist v. Fricks, 465
S.E.2d 501, 507 (Ga. Ct. App. 1995) (supporting a paternity fraud claim against a
biological mother by implication by holding that the putative father should not receive
damages on his paternity fraud action because he prevailed on his paternity claim, and
                                          6

       Although the issue of whether to recognize a cause of action for

paternity fraud is one of first impression in this court, we came close to

addressing the subject eight years ago.            In Brooks v. Brooks, No. 03–

1217, 2004 WL 240207 (Iowa Ct. App. Feb. 11, 2004), the court of

appeals decided an appeal from a district court’s order granting

summary judgment to the wife in a paternity fraud case brought by her

estranged husband.        The court of appeals quoted extensively from the

Nebraska Supreme Court’s decision in Day, which found that public

policy and child welfare concerns precluded a fraud action. Brooks, 2004

WL 240207, at *1–2 (citing Day, 653 N.W.2d at 479–481). Our court of

appeals indicated that it found the reasoning in Day “persuasive” but

ultimately declined “to decide whether such causes of action should be

recognized in Iowa.” Id. at *2. The court concluded that it was “up to the

legislature or our supreme court to establish new causes of action even

when they appear to have merit.” Id.

       We granted further review. However, we deadlocked three-to-three

and, thus, the district court’s grant of summary judgment was affirmed

by operation of law in a nonprecedential order. Order, Brooks v. Brooks,

No. 03–1217 (Iowa Sept. 1, 2004); see also Iowa Code § 602.4107 (2011).

       Although we have not previously determined the viability of a tort

action for paternity fraud, we have held in a series of cases that parents

cannot obtain retroactive relief from court-ordered child support.                See

State ex rel. Baumgartner v. Wilcox, 532 N.W.2d 774, 776–77 (Iowa 1995)

(citing In re Marriage of Shepherd, 429 N.W.2d 145, 146–47 (Iowa 1988));


________________________________
it was clear that his primary objective was to remain the child’s legal father and only
sought tort damages in a counterclaim in case the ex-wife and avowed biological father
prevailed on their paternity action).
                                     7

In re Evans, 267 N.W.2d 48, 51–52 (Iowa 1978) (citing Pucci v. Pucci, 259

Iowa 427, 431–32, 143 N.W.2d 353, 356–57 (1966)); Welch v. Welch, 256

Iowa 1020, 1027–28, 129 N.W.2d 642, 646 (1964); Delbridge v. Sears,

179 Iowa 526, 536, 160 N.W. 218, 222 (1916)).

      In Wilcox, after a putative father established that he was not the

biological father, he sought to be relieved of “court-ordered obligations to

pay past and future child support.”      532 N.W.2d at 775.    The central

issue in that case was whether the putative father could be relieved of

past accrued but unpaid court-ordered child support obligations. Id. at

776–77. Iowa Code section 600B.41(7)(c) (1993) provided that “[i]f the

court finds that the establishment of paternity is overcome, in

accordance with all of the conditions prescribed, the established father is

relieved of all future support obligations owed on behalf of the child.”

Wilcox, 532 N.W.2d at 777.

      We held that “where the rights of the parties have been

established, support payments which have accrued are vested and the

courts, without statutory authority, cannot take them away.” Id. Thus,

the putative father was responsible for making the accrued support

payments on behalf of the minor child. Id. at 778.

      In Wilcox, we rested our holding, in part, on the fact that Iowa

Code § 600B.41A(4)(b) (1995), which had not yet taken effect, provided:

      Any periodic support payment, due prior to the date the
      order determining that the established father is not the
      biological father is filed, is unaffected by this action and
      remains a judgment subject to enforcement.

      Section 600B.41A(4)(b) has since been amended and provides that

“[i]f the court finds that the establishment of paternity is overcome . . .

the court shall enter an order which provides . . . [t]hat any unpaid

support due prior to the date the order determining that the established
                                     8

father is not the biological father is filed, is satisfied.” See 1997 Iowa

Acts ch. 175, § 215 (now codified at Iowa Code § 600B.41A(4)(b) (2011)).

Thus, the specific holding of Wilcox with respect to accrued but unpaid

child support has been legislatively overruled.

      In any event, Wilcox does not control the case before us.           Our

conclusion in Wilcox rested on a long line of cases holding that “courts do

not have the authority under the common law to reduce court-

determined support payments retroactively.” Wilcox, 532 N.W.2d at 776–

77 (citing cases).     We stated that this rule “reflects the policy of

protecting the stability and integrity of court judgments.”       Id. at 777

(citing Shepherd, 429 N.W.2d at 147).        The present matter does not

involve a court-imposed child support decree.         Thus, the attendant

concern of respect for the integrity of valid judgments present in Wilcox is

inapplicable here. Id.

      A. Traditional Law of Fraud. As noted, Dier is not seeking relief

under Iowa Code section 600B.41A(4)(b), which permits a putative father

who has overcome the establishment of paternity to avoid all unpaid and

future support obligations.    Rather, Dier has brought a common law

action for fraud seeking as damages monies voluntarily paid based on an

allegedly fraudulent representation.     From our vantage point, Dier’s

cause of action appears to fit comfortably within the traditional

boundaries of fraud law.

      In order to prevail on a common law fraud claim the plaintiff must

prove the following:

      (1) [the] defendant made a representation to the plaintiff,
      (2) the representation was false, (3) the representation was
      material, (4) the defendant knew the representation was
      false, (5) the defendant intended to deceive the plaintiff,
      (6) the plaintiff acted in [justifiable] reliance on the truth of
      the representation . . ., (7) the representation was a
                                          9

       proximate cause of [the] plaintiff’s damages, and (8) the
       amount of damages.

Spreitzer v. Hawkeye State Bank, 779 N.W.2d 726, 735 (Iowa 2009)

(quoting Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 400 (Iowa

2001)). 3   Each element must be established “ ‘by a preponderance of

clear, satisfactory, and convincing proof.’ ”         Lloyd v. Drake Univ., 686

N.W.2d 225, 233 (Iowa 2004) (quoting City of McGregor v. Janett, 546

N.W.2d 616, 619 (Iowa 1996)).          As the following discussion shows, we

believe the petition is sufficient to set forth a traditional fraud claim.

       1 & 2. False representation. Dier alleges that Peters told him he

was the child’s biological father.        The two subsequent paternity tests

demonstrate that this representation was false.

       3. Materiality.     In order to recover in an action for fraud the

alleged false misrepresentation must be material.              Rosenberg v. Miss.

Valley Constr. Co., 252 Iowa 483, 486, 106 N.W.2d 78, 80 (1961). We

have said that a fact is material if it substantially affects the interest of

the party alleged to have been defrauded. Wilden Clinic, Inc. v. City of

Des Moines, 229 N.W.2d 286, 292 (Iowa 1975). We have also said that a

fraudulent misrepresentation is material if it is likely to induce a

reasonable person to act.         See, e.g., id.; Kanzmeier v. McCoppin, 398

N.W.2d 826, 830 (Iowa 1987). According to the Restatement (Second) of

Torts, a matter is material if:




        3At times we have spoken in terms of seven required elements.       Van Sickle
Const. Co. v. Wachovia Commercial Mortg., Inc., 783 N.W.2d 684, 687 (Iowa 2010). In
those instances, we have treated the seventh and eighth elements above as a single
element—“resulting injury and damage.” Id.; see also Lloyd v. Drake Univ., 686 N.W.2d
225, 233 (Iowa 2004). On other occasions, we have referred to six elements of fraud.
See In re Marriage of Cutler, 588 N.W.2d 425, 430 (Iowa 1999).
                                       10

                (a) a reasonable man would attach importance to its
         existence or nonexistence in determining his choice of action
         in the transaction in question; or

               (b) the maker of the representation knows or has
         reason to know that its recipient regards or is likely to regard
         the matter as important in determining his choice of action,
         although a reasonable man would not so regard it.

Restatement (Second) of Torts § 538, at 80 (1977); see also Sedco Int’l, S.

A. v. Cory, 522 F. Supp. 254, 323 (S.D. Iowa 1981) (applying Iowa law in

diversity case).

         Dier has alleged a material misrepresentation. Being the father of

a child is an important matter, bringing with it legal, financial, and moral

responsibilities.    Dier alleges that his decision to voluntarily incur the

expenses associated with supporting the child and her mother were

“based upon the representations made by the Defendant” and that Peters

“used this assertion to secure monies from [him].”          These allegations

support his claim that the false representation induced him to act and

that the defendant knew that he was likely to regard the assertion “as

important in determining his choice of action.”             See Restatement

(Second) of Torts § 538, at 80. We cannot say that a reasonable person

would not have attached significant importance to the specific fraudulent

misrepresentation in this case.

         4. Knowledge of falsity.    The knowledge of falsity element of a

fraud claim is also commonly known as the scienter element. See Rosen

v. Bd. of Med. Exam’rs, 539 N.W.2d 345, 350 (Iowa 1995) (analyzing

fraud in the context of a medical licensure proceeding but noting that

there is “little, if anything, to distinguish the elements of fraud as defined

by the board’s administrative rule from the rule as applied at common

law”).    “The element of scienter requires a showing that alleged false

representations were made with knowledge they were false [but t]his
                                     11

requirement is met when the evidence shows such representations were

made in reckless disregard of their truth or falsity.” B & B Asphalt Co. v.

T.S. McShane Co., 242 N.W.2d 279, 284 (Iowa 1976).

      We have held that a plaintiff can prevail on the scienter element by

demonstrating:

      the defendant had actual knowledge of the falsity, possessed
      reckless disregard for the truth, falsely stated or implied that
      the representations were based on personal knowledge or
      investigation, or had a special relationship with the plaintiff
      and therefore had a duty to disclose.

McGough v. Gabus, 526 N.W.2d 328, 331 (Iowa 1995).

      Here Dier specifically alleges that “the Defendant knew that the

Plaintiff was not the biological father of the child.” Thus, he has alleged

scienter.

      5. Intent to deceive.    We have held that the intent to deceive

element, like the scienter element, may be proved in one of two ways: “by

proof that the speaker (1) has actual knowledge of the falsity of the

representation or (2) speaks in reckless disregard of whether those

representations are true or false.” Rosen, 539 N.W.2d at 350.

      Dier alleges that Peters not only knew he was not the biological
father, but “used this assertion to secure monies from [him].”           These

allegations are sufficient to survive a motion to dismiss on the intent to

deceive element.    Dier has also bolstered his petition with the further

allegation that Peters only announced later that Dier was not the child’s

biological father out of fear Dier would get custody of the child following a

child custody evaluator’s report.

      6. Justifiable reliance. To bring a fraud claim, the plaintiff must

have justifiably relied on the false representation. Spreitzer, 779 N.W.2d

at 737.     “[T]he justified standard followed in Iowa means the reliance
                                    12

does not necessarily need to conform to the standard of a reasonably

prudent person, but depends on the qualities and characteristics of the

particular plaintiff and the specific surrounding circumstances.”       Id.

(citing Lockard v. Carson, 287 N.W.2d 871, 878 (Iowa 1980) (indicating

that the justifiable reliance element is viewed in light of plaintiff’s own

information and intelligence)).     Still, the individual to whom the

fraudulent misrepresentation is made is “ ‘required to use his senses,

and cannot recover if he blindly relies on a misrepresentation the falsity

of which would be patent to him if he had utilized his opportunity to

make a cursory examination or investigation.’ ” Lockard, 287 N.W.2d at

878 (quoting Restatement (Second) of Torts § 541 cmt. a, at 89).

      Dier alleges that Peters told him he was the child’s biological

father, and that “based upon th[is] representation,” he “provided for the

child, provided for the Defendant and engaged in litigation . . . as to the

custody of the child.”    At the pleading stage, these allegations are

sufficient. It is true that a paternity test could have established at the

outset whether Dier was the child’s father, notwithstanding any

representation by Peters. But we are unwilling to hold as a matter of law

that a putative father can never rely on a mother’s representation that he

is the father and must immediately insist upon paternity testing. Dier’s

allegations are adequate on the justifiable reliance element.

      7. Proximate cause.    Proximate cause “address[es] the question

whether the losses that in fact resulted from the reliance were connected

to the misrepresentation in a way to which the law attaches legal

significance.” Spreitzer, 779 N.W.2d at 740.

      Dier alleges that he provided financial support and incurred the

expense of custody litigation “based upon the representations made by

the Defendant.”    These allegations are sufficient to plead proximate
                                   13

cause.    Not only does Dier allege he spent money based on the

misrepresentation, but common sense tells us that the misrepresentation

increased the likelihood he would spend this money.

      8. Damages.     “A showing of resulting injury or damages is an

element in a fraudulent misrepresentation case.”      Sanford v. Meadow

Gold Dairies, Inc., 534 N.W.2d 410, 413 (Iowa 1995). Fraud that does not

result in an ascertainable injury is not actionable. Spreitzer, 779 N.W.2d

at 739.

      As damages, Dier seeks reimbursement of financial support

provided to Peters and the minor child and expenses incurred during the

custody litigation.   These items are out-of-pocket expenses that are

generally considered recoverable damages in a fraud case, the theory

here being that Dier would not have incurred these expenses but for the

misrepresentation. See Midwest Home Distrib., Inc. v. Domco Indus. Ltd.,

585 N.W.2d 735, 739 (Iowa 1998).

      However, we have consistently held that “[a] successful party

ordinarily cannot recover attorney fees unless they are authorized by

statute or agreement.” Audus v. Sabre Commc’n Corp., 554 N.W.2d 868,

874 (Iowa 1996). Yet we have long recognized an exception to this rule

when a person, due to the tort of another, is required to protect his

interests by bringing or defending an action against a third person.

Turner v. Zip Motors, 245 Iowa 1091, 1097, 65 N.W.2d 427, 431 (Iowa

1954); see also Kimmel v. Iowa Realty Co., 339 N.W.2d 374, 380 (Iowa

1983). In such cases, we have allowed the plaintiff to recover his or her

attorney fees in the third-party action from the tortfeasor. Turner, 245

Iowa at 1097, 65 N.W.2d at 431.         This view is in accord with the

Restatement (Second) of Torts section 914(2) which states, in part:
                                          14

       One who through the tort of another has been required to
       act in the protection of his interests by bringing or defending
       an action against a third person is entitled to recover
       reasonable compensation for loss of time, attorney fees and
       other expenditures thereby suffered or incurred in the earlier
       action.

Restatement (Second) of Torts § 914(2), at 491 (1979).

       Dier has alleged that he was forced to engage in custody litigation

as a result of Peters’ fraudulent misrepresentation. But the exception to

the general rule noted above does not apply because the custody action

was against Peters, not a third party. See Moser v. Thorp Sales Corp.,

334 N.W.2d 715, 719 (Iowa 1983) (declining to apply the exception

absent a showing that defendant, “by his tort or breach of contract[,]

forced [the plaintiff] to become involved in third-party litigation”); see also

Tolve v. Ogden Chrysler Plymouth, Inc., 755 N.E.2d 536, 541 (Ill. App. Ct.

2001) (holding attorney’s fees expended by an automobile buyer to

defend prior suit did not establish damages element of her fraud claim

where prior litigation involved the same parties and the same alleged

wrongful conduct); In re Estate of Snover, 546 N.W.2d 341, 350 (Neb. Ct.

App. 1996) (“We can find no case . . . where the Supreme Court has

applied this exception to a situation where the prior action involved the
same parties rather than a third party.”). Therefore, to the extent Dier is

seeking the recovery of his costs and attorneys’ fees in the earlier

litigation with Peters, this request seems to fall outside the scope of

historically recoverable fraud damages. 4

       4We   are not holding that Dier would have been precluded from recovering his
costs and attorney fees by making a claim in the custody litigation itself. Courts have
allowed recovery of common law attorneys’ fees in rare cases where “ ‘the losing party
has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.’ ” See Fennelly
v. A-1 Mach. & Tool Co., 728 N.W.2d 163, 181 (Iowa 2006) (quoting Hockenberg Equip.
Co. v. Hockenberg’s Equip. & Supply Co. of Des Moines, Inc., 510 N.W.2d 153, 158 (Iowa
1993)); see also Wolf v. Wolf, 690 N.W.2d 887, 896 (Iowa 2005).
                                    15

      With the foregoing exception, Dier has not alleged, or asked this

court to adopt, a new cause of action or theory of recovery. Rather, he

has stated a claim for traditional common law fraud. We have said that

the common law is presumed to be in force in this state unless it has

been revised or repealed by statute or constitution.      See Iowa Civil

Liberties Union v. Critelli, 244 N.W.2d 564, 568 (Iowa 1976). Although

the facts in this case are somewhat novel, Dier has alleged a well-

recognized civil wrong without contorting any of the elements to conform

to his facts.   We have said that “tribunals [should have] the liberty to

deal with [fraud] in whatever form it may present itself.    Rosen, 539

N.W.2d at 349.

      In fact, we have previously allowed causes of action for common

law fraud to proceed in other cases with atypical fact patterns.      For

example, in Wright v. Brooke Group Ltd., we had to decide the following

certified question: “Under Iowa law, can a manufacturer’s alleged failure

to warn or to disclose material information give rise to a fraud claim

when the relationship between a Plaintiff and a Defendant is solely that

of a customer/buyer and manufacturer?”       652 N.W.2d 159, 163 (Iowa

2002).

      In answering this question we acknowledged that the case was

atypical: “Iowa cases applying a fraud theory have typically involved a

business transaction between the parties, a fact not present in the

certified question.” Id. at 175. Nonetheless, we reasoned that

      what is really important is that the statements were made for
      the purpose of influencing the action of another. The fact
      that this element is usually found in transactions where the
      parties deal directly with one another does not mean that the
      same goal of influencing another’s action cannot be present
      in business transactions that do not involve direct contact
      between the plaintiff and the defendant.
                                     16

Id. at 176 (citing cases).   Thus, we concluded that a manufacturer’s

failure to warn or to disclose material information may give rise to a

fraud claim when the manufacturer “(1) has made misleading statements

of fact intended to influence consumers, or (2) has made true statements

of fact designed to influence consumers and subsequently acquires

information rendering the prior statements untrue or misleading.” Id. at

177 (citing Restatement (Second) of Torts § 551(2)(b), (c), at 119 (1977)).

      In Beeck v. Kapalis, we held the plaintiffs could pursue a fraud

action against Aquaslide and its president for making a reckless, but

innocent, misrepresentation that the water slide injuring one of the

plaintiffs had been manufactured by Aquaslide—thereby causing the

plaintiffs to fail to name the actual manufacturer as a defendant before

the statute of limitations ran. 302 N.W.2d 90, 94–95 (Iowa 1981). There

we noted that “[t]he fact that defendants were not motivated by ill will

toward Beecks and thought they were helping Beecks by narrowing the

scope of the litigation does not necessarily preclude a finding of fraud.”

Id. at 95.

      B. Public Policy. Despite the apparent fit between this case and

common law fraud, defendant contends that judicial recognition of a

cause of action for paternity fraud would be contrary to Iowa public

policy. She relies on the Nebraska Supreme Court’s decision in Day, a

case where a father sought recovery of court-ordered child support he

had been required to pay from 1991 to 1999 for a child who had been

born in 1987 while he was married to the child’s mother. 653 N.W.2d at

477. There the Nebraska Supreme Court reasoned:

      Robert’s fraud and assumpsit claims are for Robin’s
      misrepresentation that led Robert to make investments of
      time, emotion, and money in Adam that he would not have
      made had he known that Adam was not his biological son.
                                     17

      In effect, Robert is saying, “He is not my son; I want my
      money back.” Robert’s fraud and assumpsit causes of action
      focus on the burdens of the parent-child relationship, while
      ignoring the benefits of the relationship. We do not believe
      that having a close and loving relationship “imposed” on one
      because of a misrepresentation of biological fatherhood is the
      type of “harm” that the law should attempt to remedy.

             Moreover, a tort or assumpsit claim that seeks to
      recover for the creation of a parent-child relationship has the
      effect of saying “I wish you had never been born” to a child
      who, before the revelation of biological fatherhood, was
      under the impression that he or she had a father who loved
      him or her. We decline to allow a party to use a tort or
      assumpsit claim as a means for sending or reinforcing this
      message.

Id. at 479 (internal citations omitted).

      While these concerns are legitimate, we are not ultimately

persuaded by them. For one thing, O.D. is not fifteen years old, like the

child in Day, but three. We are not persuaded that allowing the present

cause of action to go forward would impose additional stress on the

child, who is not a party to the case, and likely need not participate in it

or even be aware of it. It is true that Dier’s success in the litigation could

diminish the resources that Peters has available in the future to support

O.D., but this would be true of any lawsuit against Peters.         We have

never afforded parents a general defense from tort liability on the ground
they need all their money to raise their children.

      Also, we need to consider the public policy implications of an

opposite ruling. We recognize fraud as a cause of action partly to deter

lying. One good reason to allow fraud claims to go forward in the area of

paternity fraud is to avoid the situation that has allegedly arisen here.

      We have emphasized that “public policy” is not predicated on this

court’s “generalized concepts of fairness and justice.”           Claude v.

Guaranty Nat’l Ins. Co., 679 N.W.2d 659, 663 (Iowa 2004) (citation and

internal quotation marks omitted) (holding that a physical contact
                                     18

requirement for underinsured motorist coverage was not against any

recognized public policy). Rather, “ ‘[w]e must look to the Constitution,

statutes, and judicial decisions of [this] state, to determine [our] public

policy and that which is not prohibited by statute, condemned by judicial

decision, nor contrary to the public morals contravenes no principle of

public policy.’ ” Id. (quoting In re Marriage of Witten, 672 N.W.2d 768,

780 (Iowa 2003)).

       “[D]espite the difficulty of characterizing the exact elements of the

public interest, we have considered and weighed public policy concerns

when deciding important legal issues.” Galloway v. State, 790 N.W.2d

252, 255 (Iowa 2010) (“acknowledg[ing] the challenging nature of

identifying which societal values are properly included within the

purview of ‘public policy’ ”). This is not the first time we have “confronted

public policy considerations in the context of litigation between family

members.” Id.

       In Shook v. Crabb, we abolished interspousal immunity and

recognized the “fundamental policy consideration of providing judicial

redress for an otherwise cognizable wrong.” 281 N.W.2d 616, 618 (Iowa

1979). We reasoned that “to deny a forum for the redress of a wrong

would do little to advance the compatibility of a married couple.” Id. at

619.   Two years later we abrogated parent–child immunity.         Turner v.

Turner, 304 N.W.2d 786, 787–89 (Iowa 1981). We found unpersuasive in

Turner the same arguments about “the threat to domestic tranquility”

that had been asserted unsuccessfully in Shook. Id. at 787.

       Our evaluation of public concern here is consistent with Shook and

Turner.   In fact, there is less reason to be concerned about family

harmony in a case where, because of paternity fraud, one of the parties

who thought he was part of the family is now being removed from it.
                                            19

       This state has a recognized public policy interest in providing a

remedy for fraud. 5 As an Illinois court reasoned in allowing a paternity

fraud claim to go forward, “public policy does not serve to protect people

engaging in behavior such as that with which plaintiff’s complaint

charges” nor does it “allow defendant[s] to use [their children] to avoid

responsibility for the consequences of [their] alleged deception.” Koelle v.

Zwiren, 672 N.E.2d 868, 875 (Ill. App. Ct. 1996).                    For the foregoing

reasons, we conclude that allowing Dier’s claim to go forward would not

be contrary to public policy. 6




       5See,  e.g., Midwest Home Distrib., Inc., 585 N.W.2d at 742 (noting that “allow[ing]
a defrauding defendant to retain the bounty of its fraud [is] contrary to . . . public
policy”); Webb v. Am. Family Mut. Ins., Co., 493 N.W.2d 808, 812 (Iowa 1992) (denying
insurance recovery based on insured’s fraud and noting that “[d]rafting the policy to
expressly deny recovery not only serves the interest of the insurance companies but
also advances the public good by discouraging fraud” (quoting Vance v. Pekin Ins. Co.,
457 N.W.2d 589, 593 (Iowa 1990))); Howard v. Nat’l French Draft Horse Ass’n, 169 Iowa
719, 726, 151 N.W. 1056, 1059 (1915) (“It has been the just pride of our jurisprudence
that neither law nor equity will give countenance to fraud and that, no matter how novel
or ingenious its scheme, the courts will interfere to prevent its consummation and to
redress the injury resulting therefrom to innocent persons.”).
       6We   distinguish this case from the so-called “wrongful birth” cases where a
biological parent tries to recover the costs of rearing a healthy child on the theory that
the defendant’s negligence allowed the child to be born. See Nanke v. Napier, 346
N.W.2d 520 (Iowa 1984). In denying such a theory of recovery in Nanke, we relied in
part on
       the public policy of Iowa which dictates that a parent cannot be said to
       have been damaged or injured by the birth and rearing of a normal,
       healthy child because the invaluable benefits of parenthood outweigh the
       mere monetary burdens as a matter of law.
Id. at 522–23.
        In this case Dier is not alleging that he had a biological parent–child relationship
negligently imposed on him. Rather, he is alleging that he was fraudulently induced
into believing he had a biological child, but in reality did not. Consequently, Dier could
not prevail in the custody litigation, and he will actually be denied the “invaluable
benefits of parenthood” we discussed in Nanke. See id. at 523. The public policy
considerations that foreclosed damages for wrongful life in Nanke are inapplicable in a
case where the plaintiff is being denied a parent–child relationship.
                                    20

      C. Section 600B.41A.       Finally, we consider whether allowing

Dier’s paternity fraud claim would be contrary to a law or policy

expressed by the general assembly. As we have discussed above, Iowa

Code section 600B.41A addresses the consequences of overcoming the

presumption of paternity and provides:

            4. If the court finds that the establishment of
      paternity is overcome, in accordance with all of the
      conditions prescribed, the court shall enter an order which
      provides all of the following:

            a. That the established father is relieved of any and all
      future support obligations owed on behalf of the child from
      the date that the order determining that the established
      father is not the biological father is filed.

            b. That any unpaid support due prior to the date the
      order determining that the established father is not the
      biological father is filed, is satisfied.

Id. § 600B.41A(4).

      Thus, section 600B.41(4) relieves the putative father from future

support obligations and from accrued but unpaid support obligations.

By implication, particularly in light of Wilcox, support that has already

been paid may not be recovered. 532 N.W.2d at 776–77. We think it is

clear, though, and Peters does not dispute, that “support” in this context

means court-ordered support. See Iowa Code § 600B.24 (providing that

“[u]pon a finding of paternity against the defendant, the court shall enter

a judgment against the defendant declaring paternity and ordering

support of the child”); see also id. § 598.1(9) (defining “support” to mean

“an amount which the court may require either of the parties to pay”).

Still, Peters argues that it would be incongruous for us to permit

recoveries of prior voluntary support payments when the legislature has

disallowed recoveries of prior court-ordered support payments.
                                   21

      We do not agree. As noted above, Wilcox and the preceding cases

involving court-ordered support were predicated on “the policy of

protecting the stability and integrity of court judgments.”   Wilcox, 532

N.W.2d at 777. In a proceeding for support, the putative father has the

right to seek paternity testing.   See Iowa Code § 600B.41(1).      If the

putative father does not exercise that right and a support decree is

entered, then it is fair to give that decree a measure of finality.   For

example, in Wilcox, the putative father allowed a default judgment to be

entered against him for child support. 532 N.W.2d at 775–76.        Then,

over a year later, he filed an application to set aside the judgment of

paternity. Id. at 776. As a general matter, when a decree is entered, it

may be modified prospectively in appropriate circumstances, but unless

the law recognizes it as void for some reason, it may not be invalidated

ab initio. See, e.g., In re Marriage of Johnson, 781 N.W.2d 553, 559 (Iowa

2010) (noting that “each installment payment of a spousal support award

in the original decree becomes a binding final judgment when it comes

due and cannot be decreased until a subsequent judgment is entered

decreasing the original award”) (citing Shepherd, 429 N.W.2d at 146;

Walters v. Walters, 231 Iowa 1267, 1270, 3 N.W.2d 595, 596 (1942)).

      Allowing a cause of action here does not contravene these

principles. We are not concerned here with the finality of a prior decree

or judgment.    According to the petition here, Dier voluntarily made

payments to Peters for the benefit of O.D. once Peters told him he was

the father. We believe this sort of conduct should be encouraged, not

discouraged.   Of course, to protect the child’s interests, and to insure

that the payments meet what our guidelines require, proceedings may be

instituted under chapter 600B.
                                   22

      IV. Conclusion.

      For the foregoing reasons, we hold that Dier’s claim for paternity

fraud should not have been dismissed. It is supported by common law

standards for fraud and is not contrary to public policy or the statutory

policy of this state. Of course, we emphasize the limits of our holding.

As noted above, while Dier may pursue recovery of monies provided to

Peters or spent for the benefit of the minor child (assuming he was not

under a court order to make these payments), he may not recover

attorneys’ fees and costs incurred in the prior custody litigation with

Peters.

      Also, alleging paternity fraud is not the same as proving it.    We

have said that “[p]roving fraud is a difficult task.”   In re Marriage of

Cutler, 588 N.W.2d 425, 430 (Iowa 1999).      That is certainly true with

paternity fraud where sufficient proof will have to be advanced as to both

Peters’ state of mind when she made the representation and Dier’s

justifiable reliance thereon.

      DISTRICT      COURT       JUDGMENT     REVERSED       AND       CASE

REMANDED.

      All justices concur except Cady, C.J., who concurs specially.
                                     23

#11–1581, Dier v. Peters


CADY, Chief Justice (concurring specially).

      I concur in the opinion of the majority. I write separately to clarify

my reason for joining the holding by the majority to allow the claim to go

forward and to emphasize the inherent difficulties and challenges

presented by opening the courthouse doors to paternity fraud.

      While claims for fraud have been applied to many types of

relationships of trust and confidence, such as attorney and client,
employer and employee, and accountant and investor, the relationship

involved in a claim of paternity fraud is distinguishable by the inherent

presence of uncertainty caused by conversations or assurances of

paternity. See Wilson v. Vanden Berg, 687 N.W.2d 575, 577 (Iowa 2004)

(resolving fraudulent misrepresentation appeal between an attorney and

his clients); Lloyd v. Drake Univ., 686 N.W.2d 225, 233 (Iowa 2004)

(resolving fraudulent misrepresentation appeal between employer and

employee); Eldred v. McGladrey, Hendrickson & Pullen, 468 N.W.2d 218,

220   (Iowa   1991)   (recognizing   validity   of   claim   for    fraudulent

misrepresentation between investors and accounting firm that performed

an audit, but finding insufficient evidence of reliance).          All personal

interaction exists in a kaleidoscope of reasoning affected by an ever-

changing landscape of complex motivations and emotions.                   But,

relationships marked by sexual intimacy can be the most complex,

sometimes so complex that the conduct they produce can defy common

reasoning found in the outside world.     Consequently, a mother, or an

expectant mother, may choose to tell a man that he is the father of her

child for many reasons that are unrelated to mere financial gain. A man

may also choose to form a bond with a child regardless of whether the
                                    24

child is biologically his own, and as in this case, a putative father may

feel wrongly persuaded into forming a supportive bond with the child and

may be entitled to recover for the misrepresentation.       In the end, it

becomes painfully obvious that parties pushed into the justice system

over a paternity fraud claim could never leave it unscathed, and the

standards of justice will certainly be stretched to their limits, even if

justice is attainable.   This consequence may cause many reasonable,

caring people to simply leave the claim dormant for the betterment of

others. For sure, these circumstances have caused some courts to carve

an exception for fraud in the context of paternity by condemning the

putative father’s initiative to recover. Yet, our precedent has not been for

courts to decide whether it is prudent social policy to limit a common law

cause of action for fraud simply because the facts present a difficult or

complicated issue within the realm of otherwise normal legal framework.

See Rosen v. Bd. of Med. Exam’rs, 539 N.W.2d 345, 349 (Iowa 1995)

(recognizing “[f]raud is a generic term whose precise contours are often

left undefined for the very purpose of giving tribunals the liberty to deal

with it in whatever form it may present itself”).     Nor is it our role to

apportion blame between parties for any tension or turmoil between the

child and the parents, particularly when these matters arise out of both

parties’ uniquely complex motivations.     Instead, our role is simply to

determine whether the plaintiff has established a cause of action

according to our rules of notice pleading. This approach, of course, does

not mean we should ignore the reality that certain types of fraud cases

carry collateral consequences that are sometimes difficult to swallow.

      While the misleading conduct of a mother, or any person, should

be discouraged, the conduct of a man voluntarily forming a bond with

and supporting a nonbiological child in a nontraditional family setting is,
                                      25

on the other hand, arguably a noble cause to encourage in our society.

See Melony B. Jacobs, When Daddy Doesn’t Want to be Daddy Anymore:

An Argument Against Paternity Fraud Claims, 16 Yale J.L. & Feminism

193, 195–98 (2004) (noting the disconnected logic that seems contrary to

efforts to make decisions in accordance with the best interests of the

child when our courts recognize two fundamentally different family law

models, one that “embrace[s] functionality in the context of establishing

paternal relationships” and the other that “place[s] emphasis on biology

in disestablishing parental relationships”).     As the Nebraska Supreme

Court recognized, a claim seeking to recover for support given to a child

may send the message, “I wish you had never been born” to a child who

was otherwise under the impression she had a father who loved her.

Day v. Heller, 653 N.W.2d 475, 479 (Neb. 2002).                However, our

courtroom doors are open to complex cases involving children and their

parents, such as divorce and custody disputes, termination of parental

rights, disestablishment of paternity, and interspousal litigation.        The

proceedings that ultimately unfold in a courtroom are not easy or

pleasant for anyone involved, but the court is nevertheless necessary to

provide a forum for addressing an alleged wrong that has already

occurred within a family unit.

      Thus, due to the multidimensional nature of relationships that

produce children, and the many varying factors that motivate or

incentivize parties involved in the child’s life, the legislature is the proper

authority to balance the competing policy interests at stake and

ultimately articulate the parameters of any exception to common law

fraud based on public policy. Our refusal to create an exception to this

case is not an expression of an opinion that the competing policy reasons

are not valid. Instead, as a court, we simply continue to adhere to our
                                      26

broader policy, woven into the law long ago, of recognizing a remedy for

fraud.

         Finally, as pointed out by the majority, “[p]roving fraud is a

difficult task.”   In re Marriage of Cutler, 588 N.W.2d 425, 430 (Iowa

1999).     Thus, Dier, and any other future litigant, faces a challenging

burden to establish the essential elements of fraud and, most

importantly, a measure of damages consistent with the burden on

plaintiffs in other types of fraud cases.           Yet, paternity fraud likely

presents even greater challenges, making it even more difficult to

establish.    The tort necessarily involves an understanding of not only

what the mother knew at the time of the representation but also what

she was capable of knowing in light of the biological complexities of the

female     reproductive   system   and     highly     individualized   biological

permutations between couples that can affect fertility.           See Beeck v.

Aquaslide ‘n’ Dive Corp., 350 N.W.2d 149, 155 (Iowa 1984) (“ ‘A false

statement innocently but mistakenly made will not establish intent to

defraud . . . .’ ” (quoting Grefe v. Ross, 231 N.W.2d 863, 867 (Iowa 1975));

see Garren v. First Realty, Ltd., 481 N.W.2d 335, 338 (Iowa 1992) (finding

the defendant “could have been more careful in making further inquiry is

insufficient to prove she acted in reckless disregard for the truth”). The

scientific component of establishing knowledge and intent will likely

narrow the types of plaintiffs able to succeed on the merits to those that

have facts consistent with the spirit and purpose of the cause of action.

         Additionally, the fact finder is responsible for ensuring that only

facts directly relevant to the elements of fraud are considered in

establishing the necessary proof in such particularly delicate and

sensitive emotional fraud cases. Of course, as in other areas of the law,

the discovery of this information will not come without a price. In this
                                     27

case, much time may need to be spent uncovering details from Peters

regarding her knowledge of the paternity of the child that may involve her

disclosing details of her sexual history that are intimate and perhaps at

times embarrassing to her. But, let the buyer beware, too. Investigating

the element of justifiable reliance will likely dig deeply into the

relationship, revealing potentially unattractive details about the conduct

and personalities of both parties.

      Although these consequences might seem inequitable at times,

relevant evidence can often be embarrassing to parties and witnesses in

other types of cases. We do not foreclose a cause of action because some

information relevant to the truth-seeking process may be uncomfortable

to disclose. State v. Baker, 679 N.W.2d 7, 11 (Iowa 2004). Fact finders

are entrusted with the important task of weighing the value that each

fact contributes in proving the elements of fraud. This is a process we

trust time and time again and a process I am confident will continue to

strike the appropriate balance between the competing interests involved

in disclosing such sensitive information. At the same time, the process

may be one made better by its infrequent use.
