Debra L. McGee / Office of Child Support
On Appeal from Superior Court, Chittenden Unit, Family Division Linda Levitt, J.
Debra L. McGee, Pro Se, Georgia, Plaintiff-Appellee.
Mary Billings Munger, Burlington, for Plaintiff-Appellee Office of Child Support.
Justin Gonyo, Pro Se, Fairfax, Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. Defendant Justin Gonyo appeals pro se from a family court order of nonparentage. Defendant contends the court erred in concluding that he lacked the statutory authority to file a voluntary acknowledgment of parentage and parentage action because he is not the child's biological parent. We affirm, albeit on a different basis from the trial court.
¶ 2. The facts may be summarized as follows. The child, a girl, was born on May 27, 2011. Shortly thereafter, on June 6, 2011, the child's mother and defendant filed a Voluntary Acknowledgment of Parentage (VAP) form with the Department of Health, Agency of Human Services. Both parties signed the form, which stated that they "voluntarily and without coercion, and of our own free will, hereby acknowledge that we are the biological parents of the child" and understand and accept "the legal rights and responsibilities that come with being a parent, " including rights to custody, visitation, and notice before the child may be adopted. The child's birth certificate identified mother and defendant as the child's parents.
¶ 3. Mother and defendant separated in 2012. About a year later, in October 2013, the Office of Child Support (OCS) filed a Complaint for Support and Recovery of Debt, together with a "Motion for Genetic Testing Despite Parentage Presumption." The motion alleged that, despite the presumption of parentage arising from the VAP, there were grounds to believe that defendant was not the biological father based on mother's affidavit naming another individual as the biological father, and stating that she was already fourteen weeks pregnant when she and defendant got together. The following month, defendant filed a pro se pleading in which he opposed the motion for genetic testing and asked the court "to grant [him] a parentage order of the child." Defendant acknowledged that he was not the child's biological father and was aware of this when he signed the VAP, but claimed that there was "nothing wrong" with doing so, and that the time for rescinding it had expired. Defendant followed with a more formal motion to establish parentage in December 2013.
¶ 4. In the meantime, the family court granted the motion for genetic testing, which took place in early January 2014. The test excluded defendant as the child's biological father. Later that month, mother filed a pro se motion to dismiss defendant's parentage action, and OCS moved to set aside the VAP and to set the matter for a hearing. In February 2014, the family court issued a summary "order of non-parentage" based on the genetic test, dismissed defendant's parentage action, and ordered the case closed. Defendant, in response, moved for reconsideration, and OCS moved to reopen the matter and set it for a hearing to address "the nature of the VAP and the power of the Court to set it aside." The court scheduled the matter for a hearing in May 2014.
¶ 5. Defendant appeared pro se at the hearing and testified in his own behalf. Defendant testified that he began living with mother when she was already fourteen weeks pregnant, was present at the child's birth, took an active role in the care of the child, and bought her clothes and gifts. Defendant stated that he moved out of the home in November 2012, when the child was about seventeen months old, but continued to visit with her until mother was granted a relief-from-abuse order in May 2014, barring him from contacting either mother or the child.
¶ 6. Mother also testified, acknowledging that she and defendant had knowingly signed the VAP, which falsely stated that defendant was the child's biological father. She admitted that defendant had been "good" with the child, but stated that he had recently been harassing and stalking her. Her reason for seeking to rescind the VAP, mother explained, was to afford the biological father an opportunity to become more involved with the child, an opportunity he had not thus far pursued.
¶ 7. The parties submitted additional briefing following the hearing. Among other arguments, OCS maintained that the presumption of parentage arising from the VAP was in the nature of a judicial order; that the VAP was limited to biological parents; that both parties here knowingly misrepresented defendant's status as the child's biological father; and therefore that the VAP could be set aside under Vermont Rule of Civil Procedure 60(b) as a "fraud upon the court."
¶ 8. The family court issued a written decision in July 2014, reaffirming its earlier ruling. The court concluded that defendant lacked standing to bring a parentage action because he is not the "natural parent" of the child under 15 V.S.A. § 302(a) (limiting actions to establish parentage to a few categories, including "a person alleged or alleging himself to be the natural parent of a child"), and further concluded that the VAP was ineffective to establish parentage because defendant is not a "biological" parent of the child. See id. § 307(d) ("A witnessed Voluntary Acknowledgment of Parentage form signed by both biological parents under this section shall be a presumptive legal determination of parentage upon filing with the department of health provided no court has previously adjudicated parentage or no legal presumption of legitimacy otherwise applies."). This pro se appeal by defendant followed.
¶ 9. We begin with the validity of the VAP, which we find to be dispositive. As explained below, we agree with OCS's assertion that, inasmuch as both signatories knowingly misrepresented defendant to be the child's biological father, the VAP in this case was a per se fraud upon the court, and properly set aside on that basis.
¶ 10. As noted, a presumption of parentage may be established under the Parentage Proceedings Act, 15 V.S.A. §§ 301-308, by the filing of "[a] witnessed Voluntary Acknowledgment of Paternity form signed by both biological parents under this section." Id. § 307(d). Consistent with the statute, the VAP signed by mother and defendant here expressly stated that, by signing "we acknowledge that we are the biological parents of this child."
¶ 11. The Act places considerable emphasis on the legal consequences of filing a signed VAP, providing that it establishes "a presumptive legal determination of parentage, " id. (emphasis added), which may be subsequently rescinded only "within 60 days after signing the form" and thereafter "challenged only pursuant to Rule 60 of the Vermont Rules of Civil Procedure." Id. § 307(f). The Act also requires that VAP forms contain express language "emphasizing the gravity of the effects of acknowledging parentage and the rights and responsibilities which attach." Id. § 307(b). Thus, the VAP signed by defendant and mother here explained that, while the law assumes an unmarried mother is the biological parent, it "[d]oes not recognize the father until parentage has been legally established"; cautioned neither parent to sign the VAP if he or she had any doubt "about the father's identity"; and confirmed that, by signing, "both parents accept the legal rights and responsibilities that come with being a parent."
¶ 12. It is not surprising, therefore, that courts have generally concluded that voluntary acknowledgments of paternity effectively "operate as judgments, " In re Parentage of G.E.M., 890 N.E.2d 944, 953 (Ill.App.Ct. 2008), a conclusion reinforced by the common statutory provision authorizing later challenges to VAPs solely by means of a motion for relief from judgment. See 15 V.S.A. § 307(f) (providing that, if not rescinded within sixty days, a VAP "may be challenged only pursuant to Rule 60 of the Vermont Rules of Civil Procedure" motion for relief from judgment or order); Cesar C. v. Alicia L., 800 N.W.2d 249, 255 (Neb. 2011) (holding that "establishment of paternity by acknowledgment is the equivalent of establishment of paternity by a judicial proceeding"); In re Gendron, 950 A.2d 151, 154 (N.H. 2008) (concluding that, "by signing the acknowledgment, the mother, by her own volition, accepted that the father is the child's biological father, " and that "[a]ccordingly . . . the acknowledgment now has the same force and effect as a Massachusetts court judgment").
¶ 13. As more fully discussed below, in recognition of the significant legal consequences of an acknowledgement of paternity, a number of courts have held that where-as here-parties fraudulently collude to establish parentage, the legal determination of paternity may be set aside as a "fraud on the court." Although in Vermont, as elsewhere, a motion for relief from judgment based on fraud or misrepresentation must be filed within one year of the proceeding, a motion brought under the general provision for "any other reason justifying relief" must "be filed within a reasonable time, " and therefore may be brought outside the one-year limitation period. V.R.C.P. 60(b)(6). Thus, in Godin v. Godin, we recognized that a claim of fraud "upon the court" is "governed by the catch-all provision of Rule 60(b)(6)" and therefore is not subject to the one-year limitation period. 168 Vt. 514, 518-19, 725 A.2d 904, 907 (1998) (observing that the question was "whether the fraud alleged . . . may properly be characterized as a fraud upon the court and therefore exempt from the one-year statute of limitations); see also Olio v. Olio, 2012 VT 44, ¶ 17, 192 Vt. 41, 54 A.3d 510 (reaffirming that Godin "recognized a narrow exception to the . . . [one-year] . . . rule for certain motions for relief from judgment alleging egregious fraud on the court" under Rule 60(b)(6)). "Fraud on the court" as a basis for relief under the catch-all provision of Rule 60(b)(6) is widely recognized. See, e.g., Carter v. Anderson, 585 F.3d 1007, 1012 (6th Cir. 2009) ("A Rule 60(b)(6) motion is an appropriate vehicle to bring forward a claim for fraud on the court."); Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1104 (9th Cir. 2006) ("Acts of 'fraud on the court' can sometimes constitute extraordinary circumstances meriting relief under Rule 60(b)(6)."); Trim v. Trim, 2007-CT-01648-SCT (¶ 7), 33 So.3d 471 (Miss. 2010) ("Rule 60(b)(6) provides a 'catch-all' provision under which relief may be granted in exceptional and compelling circumstances, such as for fraud upon the court."). As we noted in Godin, Rule 60(b) also preserves an independent action "to set aside a judgment for fraud upon the court, " although Godin was not decided on that basis. 168 Vt. at 518, 725 A.2d at 907.
¶ 14. Applying this rubric, a number of courts have set aside fraudulently obtained parentage determinations in circumstances similar to those presented here. In re Tompkins, for example, concerned a mother and a man named Brown who together "fabricated and filed a joint petition to establish paternity" despite the fact that both "knew that Brown was not the biological father." 518 N.E.2d 500, 506 (Ind.Ct.App. 1988). While acknowledging that the fraud-on-the- court doctrine had traditionally been "narrowly applied" to "egregious circumstances" involving efforts to "improperly influence the court's decision" or prevent a party from "presenting his case, " the Tompkins court concluded that the facts "and their underling implications" supported such a finding. Id. at 507. The scheme perpetrated by the parties, the court explained, had "suppress[ed [the child's] true paternity" and precluded an adoption proceeding where counsel for the child might have "assert[ed] his interests." Id. at 506-07; see also Seger v. Seger, 780 N.E.2d 855, 858 (Ind.Ct.App. 2002) (affirming judgment setting aside "paternity affidavit" where both parties knew that man was not child's biological father, and explaining that parentage proceeding "is not tantamount to . . . adoption, " and there was no showing of notice to, or consent by, child's biological father as required in such proceeding). See generally J. Parness, For Those Not John Edwards: More and Better Paternity Acknowledgments at Birth, 40 U. Balt. L. Rev. 53, 99 (2010) ("Acknowledgments for nonmarital children by nongenetic fathers allow circumvention of adoption laws, which seek to assure that when legal parentage is accorded to men and women with no preexisting parental interests, the children's best interests are served").
¶ 15. In Jones v. Weller, 362 N.E.2d 73 (Ill.App.Ct. 1977), as here, both parties also executed affidavits in support of an acknowledgment of paternity falsely stating that Weller was the child's biological father, and later divorced pursuant to a decree granting him parental rights. Weller later opposed efforts by mother's new husband to adopt the child, but the court concluded that he lacked standing as a parent on the ground that "[b]oth parties [had] . . . committed fraud upon the court" in misrepresenting Weller's status as the child's biological father. Id. at 76. As the court explained, it was contrary to public policy "to perpetuate a fraud which was instigated by [Weller] and consented to by [the mother], " noting that divorce proceedings were not "intended to supplant the Adoption Act . . . to provide an optional procedure for the establishment of parentage." Id.; see also In re Olenick, 562 N.E.2d 293, 299 (Ill.App.Ct. ...