Opinion
No. 1-922 / 01-0863.
Filed March 13, 2002.
Appeal from the Iowa District Court for Dubuque County, Alan L. PEARSON, Judge.
Respondent appeals the decision of the district court which determined she did not overcome the establishment of petitioner as the father of their child. AFFIRMED AS MODIFIED AND REMANDED.
Thomas A. Bittner, of the Bitter Law Office, Dubuque, for appellant.
Stephen J. Juergens, of Fuerste, Carew, Coyle, Juergens Sudmeier, Dubuque, for appellee.
Mary M. Schumacher, Dubuque, guardian ad litem, for minor child.
Considered by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
Angela Widmyer appeals the decision of the district court which determined she failed to overcome Jason Smith's legal establishment as the father of their child. She claims: (1) Jason failed to properly establish his paternity; (2) Jason's paternity affidavit was based on a material mistake of fact; (3) Jason did not meet the requirements to preserve paternity; (4) it is not in Colin's best interests for Jason to have custodial and visitation rights; (5) if the trial court's custody decision is upheld, Jason should be required to pay child support; (6) summer visitation should be reduced. We affirm as modified and remand.
The trial court record includes evidence of the following: Angela is the mother of Colin Widmyer-Smith, born August 19, 1996. During the time of possible conception of the child, she had sexual relations with Jason and Greg Neuhaus. Jason was aware of Angela's prior relationship with Greg, but told her he would take care of her and the child. Angela and Jason told family and friends they were having a child. Jason is listed on Colin's birth certificate as the father. Angela and Jason placed a birth announcement in a Dubuque newspaper. Jason is also listed as Colin's father on his baptismal certificate and medical records.
More importantly, on August 20, 1996, Angela and Jason both signed an "Iowa Department of Public Health Paternity Affidavit," which provides:
Effective July 1, 1993, Iowa law provides that the completion and filing of a paternity affidavit with the Iowa Department of Public Health legally establishes paternity for a child born out-of-wedlock. The legal establishment of paternity creates rights and responsibilities. There are many benefits for the child and the parents, but it also means that the father is committing to supporting that child. These rights, responsibilities, and benefits are explained in the informational material provided with this affidavit. This material was prepared by the Iowa Department of Human Services and should be read carefully before signing this affidavit.
The completed paternity affidavit was filed with the State registrar.
Angela, Jason, and Colin lived together until February 1997. After the parties separated, Colin lived with Angela. Jason paid child support and exercised visitation. Angela later began a relationship with Anthony (Tony) Noel. In December 1998 Angela and Tony discussed marriage and the possibility Tony might adopt Colin. Angela told Jason he could no longer have visitation until a blood test showed he was actually Colin's biological father.
Jason filed a petition for a determination of custody and visitation, under Iowa Code sections 598A.3 and 600B.40 (1999). Angela filed a counterclaim seeking to overcome Jason's paternity pursuant to section 600B.41A. The district court ordered genetic testing, and the test results showed Greg was Colin's biological father.
The district court entered a decree on February 1, 2001. The court found that due to the signed paternity affidavit, under section 252A.3A, Jason was Colin's established father. The court determined that under section 600B.41A(3)(f), in order to overcome the establishment of paternity, Angela was required to show the paternity affidavit was the result of fraud, duress, or material mistake of fact, and she failed to do so. The court concluded that as Colin's established father, Jason was entitled to visitation, and set forth a visitation schedule.
Angela filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2). The court noted neither party asked the court to enter an order for child support and determined it did not have jurisdiction to enter such an order. Angela appealed.
I. Scope of Review .
Actions to establish or overcome paternity are triable as ordinary proceedings. Treimer v. Lett, 587 N.W.2d 622, 624 (Iowa Ct. App. 1998). Our review is for the correction of errors at law. Iowa R. App. P. 6.4. On the other hand, issues ancillary to the question of paternity, such as support and visitation, are reviewed de novo. Dye v. Geiger, 554 N.W.2d 538, 539 (Iowa 1996). On these issues, we give weight to the trial court's factual findings, but are not bound by them. Callender v. Skiles, 623 N.W.2d 852, 854 (Iowa 2001).
II. Establishment of Paternity .
The completion, filing, and registration of an affidavit of paternity, using the form provided by the Iowa Department of Public Health, legally establishes the paternity of a child born out of wedlock. Iowa Code §§ 252A.3A(1), (4). The evidence in this case clearly shows Angela and Jason signed an affidavit of paternity using the proper form, which was filed and registered with the State registrar. Section 252A.3A(8) provides:
An affidavit of paternity completed and filed with and registered by the state registrar pursuant to this section has all of the following effects:a. Is admissible as evidence of paternity.
b. Has the same legal force and effect as a judicial determination of paternity subject to the right of any signatory to rescission pursuant to subsection 12.
Section 252A.3A(12) allows a mother or putative father sixty days to file a rescission with the State registrar. No rescission was ever filed in this case. We conclude the district court correctly determined Jason was Colin's legally established father.
The term "established father" refers to paternity that has been established by some means authorized by law. Callender v. Skiles, 591 N.W.2d 182, 185 (Iowa 1999). Here, Jason was established as Colin's father under § 252A.3A.
III. Overcoming Paternity .
Section 600B.41A provides a procedure to overcome legally established paternity if subsequent blood or genetic testing shows the established father is not the biological father. Dye, 554 N.W.2d at 539. The procedure to overcome paternity is strictly statutory. Treimer, 587 N.W.2d at 624. Establishment of paternity may be overcome if certain conditions are met, including:
f. The court finds all of the following:
(1)That the conclusion of the expert as disclosed by the evidence based upon blood or genetic testing demonstrates that the established father is not the biological father of the child.
(2)If paternity was established pursuant to section 252A.3A, the signed affidavit was based on fraud, duress, or material mistake of fact, as shown by the petitioner.
As noted above, paternity in this case was established pursuant to section 252A.3A. Angela does not allege fraud or duress, but claims there was a material mistake of fact. She testified did not remember signing the affidavit, or anything about it. On appeal, she argues she may have been confused about what type of document she was signing. She states she only remembers signing a document relating to placing the birth announcement in the paper, and that the document she signed may have in fact been the paternity affidavit.
A mistake in the legal sense is limited to an erroneous belief as to a then existing or past fact. Pathology Consultants v. Gratton, 343 N.W.2d 428, 437 (Iowa 1984). Angela does not allege she was actually mistaken about any facts, only that she may have been mistaken about what she was signing. Generally, a party's failure to read a document before signing it does not invalidate the document. Huber v. Hovey, 501 N.W.2d 53, 55 (Iowa 1993). Ignorance of the contents of an instrument does not ordinarily affect the liability of one who signs it. Gouge v. McNamara, 586 N.W.2d 710, 713 (Iowa Ct. App. 1998). We have stated:
It is also the settled rule of law that if a party to a contract is able to read, has the opportunity to do so, and fails to read the contract, he cannot thereafter be heard to saw that he was ignorant of its terms and conditions, for the purpose of relieving himself from its obligations.Id. (quoting Preston v. Howell, 219 Iowa 230, 236, 257 N.W. 415, 418 (1934)).
The document in question states in large letters on the front, "IOWA DEPARTMENT OF PUBLIC HEALTH PATERNITY AFFIDAVIT." The document also provides, "YOUR SIGNITURE ON THIS FORM INDICATES THAT YOU HAVE RECEIVED AND READ THIS INFORMATION." Angela was a high school graduate and had completed one year of college. We determine the nature of the paternity affidavit is clear, and Angela may not now claim she did not understand what she was signing. We affirm the district court's conclusion that Angela failed to show a material mistake of fact and she is unable to meet the statutory requirements to overcome Jason's established paternity.
IV. Preservation of Paternity .
Both parties raise the issue of whether Jason's paternity should be preserved under section 600B.41A(6). The district court determined Jason had not met one of the preconditions for preservation, which are found in section 600B.41A(6)(a)(3). Because the court did not preserve paternity, and Jason did not cross-appeal, we do not address this issue on appeal.
Angela also urges us to consider whether it is in Colin's best interests to preserve Jason's paternity. See Iowa Code § 600B.41A(6)(a)(2). Because we do not consider the issue of preservation, we also do not consider the issue of whether preservation is in Colin's best interests.
Prior to 1997, in order to overcome paternity, the court was required to find that overcoming the establishment of paternity was in the child's best interests. See Iowa Code § 600B.41A(3)(g) (1995). This subsection was eliminated in 1997, and instead the best interests requirement was added to the preservation of paternity section. See Iowa Code § 600B.41A(6)(a)(2).
V. Child Support .
The district court did not order Jason to pay any child support, finding neither party had requested the court to enter an order regarding support. Angela points out that in her answer she requested the court to "grant such other and further orders and relief as the Court deems just and equitable under the circumstances, and for the costs of this action." Furthermore, the issue of child support was apparently tried by the consent of the parties. Jason agrees to pay support for the child. Therefore, we modify the district court's decree to eliminate its findings on this issue and remand for a calculation of Jason's child support obligation.
VI. Visitation .
Jason was awarded regular visitation with Colin, including four weeks in the summer. Angela asks to have the amount of summer visitation reduced. On our de novo review of this issue, we affirm the parties' visitation schedule.
VII. Summary .
We affirm the decision of the district court, except we modify the court's determination it did not have the ability to order child support, and remand for a determination of Jason's child support obligation. Costs of this appeal are assessed to Angela.
AFFIRMED AS MODIFIED AND REMANDED.