State v. Cross (In re N.D.S.)

390 Wis.2d 834

939 N.W.2d 880 (Table)

2020 WI App 10

IN RE the PATERNITY OF N.D.S.:

State of Wisconsin, Petitioner-Respondent,

v.Vanidy R. Cross, Respondent-Respondent,

v.Deray J. Shaffale, Respondent-Appellant.

Appeal No. 2018AP1645

Court of Appeals of Wisconsin.

DATED AND FILED January 7, 2020

DUGAN, J.

¶1 Deray J. Shaffale appeals the trial court’s order denying his motion to void a voluntary acknowledgment of paternity (VPA). Shaffale argues that the trial court’s determination that the VPA is not void due to fraud or a mistake of fact is clearly erroneous. He further argues that the trial court erred, as a matter of law, when it determined that it was not in the child’s best interest to void the VPA and that such finding was clearly erroneous.

¶2 We conclude that the record is insufficient to support the trial court’s findings that Shaffale’s signing of the VPA was not due to fraud or mistake of fact. We also conclude that the parties failed to adequately develop their arguments that the best interest of the child standard applies to WIS. STAT. § 767.805 (2017-18)¹ —voiding a VPA and is the proper standard to be applied by the trial court. Therefore, we reverse the trial court’s order and remand this matter for an evidentiary hearing on the issues.

BACKGROUND

¶3 On September 21, 2017, the State filed a summons and petition for child support for N.D.S. in the Milwaukee County Circuit Court naming Shaffale and Vanidy R. Cross, the child’s mother, as respondents. The child was born on January 23, 2017. The petition noted that Shaffale and Cross "signed an acknowledgement of paternity and filed it with the State Registrar ... on March 24, 2017."²

¶4 Subsequently, the parties appeared pro se before a court commissioner. Shaffale informed the court commissioner that he had taken a private genetic test that excluded him as the father of the child. The court commissioner certified the matter to the trial court to reopen the VPA and took no further action.

¶5 On January 31, 2018, both parties appeared before the trial court. Shaffale filed a copy of the DNA report, which was dated July 17, 2017. The trial court stated that Shaffale’s DNA test results indicated a 0% probability that Shaffale was the child’s father. The State asked the trial court to appoint a guardian ad litem (GAL) to determine whether it would be in the best interest of the child to vacate the VPA.³ The trial court agreed to appoint a GAL and continued the hearing so the GAL could investigate the matter.

¶6 The next proceeding before the trial court was on April 18, 2018. Shaffale and Cross appeared pro se. The GAL and the State also appeared. The GAL advised the trial court that he had interviewed Shaffale and Cross and that Shaffale represented that he had a DNA test that indicated that he was not N.D.S.’s father.

¶7 The trial court then asked Shaffale why he had signed the VPA. Shaffale responded that he just wanted to get insurance coverage for the child so he had to hurry up and sign the acknowledgment.

¶8 The GAL also told the trial court that Cross had given him the birthdate and a telephone number for a man living in Seattle, Washington, who could be N.D.S.’s father. He stated that Cross thought the man living in Seattle would cooperate with the DNA testing.

¶9 The GAL recommended that the trial court uphold the VPA based on the best interests of the child. However, he also suggested that the man in Seattle get a DNA paternity test. He also recommended that, if the man in Seattle underwent DNA testing and test results showed that the man was 99.99% likely to be the father, the trial court could let Shaffale "off the hook."

¶10 The State responded that paternity had been established with Shaffale as the father and that the VPA could only be voided upon a showing of fraud, duress, or a mistake of fact. The trial court then asked Shaffale additional questions regarding his signing of the VPA. Based on Shaffale’s answers to those questions, the trial court made some findings regarding fraud, duress, and mistake of fact. We provide more details about the hearings as relevant in our discussion below.

¶11 The trial court next asked Cross what her "thoughts" were "on all this." Cross said that she really just wanted N.D.S. to get child support and be taken care of and that she was doing what she could do for the child, but she needed support.

¶12 The trial court then explained to Cross that, if it did not void the VPA, Shaffale would have certain responsibilities and rights with respect to N.D.S. Cross responded, "So since you brought that up, I would like to retest. If I could get the other guy possibly involved, I will try." The trial court did not place Cross under oath and it did not further question her.

¶13 The trial court asked the GAL for his thoughts or advice. The GAL suggested that, because the child was young and no relationship between the child and Shaffale had been established, it would be in the best interest of the child to find the biological father. The GAL also said that if the father was not found then the issue of the VPA could be revisited.

¶14 The trial court adjourned the matter to allow the GAL an opportunity to further investigate. The trial court also summarized the State’s position as opposing the motion because Shaffale had not shown that he had any grounds to reopen the VPA. At the end of the proceeding, the trial court suggested that Shaffale and Cross each consider hiring a lawyer or obtaining legal advice because the "stakes are big."

¶15 At the next hearing on June 6, 2018, Shaffale and Cross both appeared pro se. The GAL reported to the trial court that the potential biological father was unwilling to cooperate with the necessary DNA testing to determine if he was the father of the child. Addressing the best interests of the child, both the State and the GAL asked that the trial court deny Shaffale’s motion to void the VPA. Shaffale stated that he did not know that "this" was going to happen and that he had signed the VPA so that the child would have insurance.

¶16 The trial court denied Shaffale’s motion to void the VPA based on its findings that Shaffale had not produced evidence of fraud, duress, or mistake of fact and that Shaffale was the "best and only father" for N.D.S. The trial court then raised questions about custodial decision making, legal custody, and related matters that it had to resolve regarding N.D.S.⁴

¶17 This appeal follows.

DISCUSSION

¶18 Shaffale argues that the trial court’s decision not to void his VPA because of a mistake of fact or fraud is clearly erroneous. He argues that contract and fraud principles should be applied to determine whether there was a mistake of fact or fraud, since the statute does not include definitions for the terms. He further argues that the trial court erred, as a matter of law, when it determined that it was not in the child’s best interest to void the VPA and that such finding was clearly erroneous.

¶19 The State argues that the trial court properly held that Shaffale failed to prove fraud, duress, or mistake of fact as required by WIS. STAT. § 767.805(5)(a). It further argues that the trial court properly concluded "that removing [Shaffale] from the child’s birth certificate was not in the best interest of N.D.S. because it would leave the child fatherless."

I. Standard of review and applicable statutes

¶20 We will not set aside a trial court’s factual finding unless it is clearly erroneous. See WIS. STAT. § 805.17(2). "Statutory interpretation is a question of law that we review de novo. " See Scace v. Schulte , 2018 WI App 30, ¶4, 382 Wis. 2d 180, 913 N.W.2d 189 (citation omitted). If statutory language is plain, we apply that language without resorting to extrinsic sources. See Shannon E.T. v. Alicia M.V.M. , 2007 WI 29, ¶39, 299 Wis. 2d 601, 728 N.W.2d 636.

¶21 WISCONSIN STAT. § 767.805(1) provides that a statement acknowledging paternity that is filed with the state registrar becomes a "conclusive determination" of paternity after the expiration of a period during which the paternity acknowledgement can be rescinded.⁵ It also provides that a determination of paternity based on an acknowledgement "shall be of the same effect as a judgment[ ] of paternity."

¶22 Under WIS. STAT. § 767.805(5)(a), "[a] determination of paternity that arises under this section may be voided at any time upon a motion or petition stating facts that show fraud, duress or a mistake of fact." The statute does not define the terms "fraud," "duress", or "a mistake of fact." If, during a proceeding under § 767.805(5)(a), the trial court determines that a male is not the father of the child, § 767.805(5)(b) states that "the court shall vacate any order entered under [ § 767.805(4) ] with respect to the male."

II. An evidentiary hearing regarding fraud and mistake of fact in Shaffale’s signing of the VPA is necessary

¶23 Shaffale asserts that the facts do not support the trial court’s conclusion that he had not established fraud or a mistake of fact regarding his signing of the VPA.

The proceedings before the trial court were inadequate to support the trial court’s conclusions

¶24 We conclude that the proceedings before the trial court were inadequate to support the trial court’s conclusion that there was no showing of fraud or mistake of fact in the signing of the VPA. First, the record reflects that Shaffale was never given notice that an evidentiary hearing at which he should be prepared to present evidence was going to take place at any of the three proceedings before the trial court. In fact, the State described the situation as involving a "request, because there [was] no official motion."

¶25 Further, at the beginning of the second proceeding, the trial court began asking Shaffale why he signed the VPA. However, it did not put him under oath at that time. Shaffale responded that he just wanted to get insurance coverage for the child so he had to hurry up and sign the acknowledgment. The trial court then...