Date: 02-21-2014

Case Style: R.P. v. K.S.W.

Case Number: 2014 UT 38

Judge: McHugh

Court: The Utah Court of Appeals on appeal from the Third District Court, West Jordan Department

Plaintiff's Attorney: Terry R. Spencer, Attorney for Appellant

Defendant's Attorney: Diana J. Huntsman and Jason H. Fuller, Attorneys for Appellees

Description: ¶1 R.P., an alleged biological father, appeals from the district
court’s dismissal of his petition to establish paternity under the
R.P. v. K.S.W. and D.R.W.
2. Unless otherwise specifically noted, all citations to the Utah Code
are to the 2012 edition of the Utah Code Annotated.
20120559-CA 2 2014 UT App 38
Utah Uniform Parentage Act (the UUPA). See Utah Code Ann.
§§ 78B-15-101 to -902 (LexisNexis 2012).2 We affirm.
BACKGROUND
¶2 While married to D.R.W. (Husband), K.S.W. (Wife) had an
affair with R.P. and became pregnant. Wife informed R.P. of the
pregnancy as well as her intention to stay married to Husband. In
April 2010, prior to the child’s birth, R.P. served Wife with a
petition to establish paternity. Wife responded with an answer and
counterpetition, admitting that R.P. was the biological father and
requesting a decree of paternity and an order regarding child
support, parent time, and joint legal custody. Husband was not
joined as a party to the proceedings at that time.
¶3 Wife and R.P. entered a mediated settlement agreement and
filed a stipulation with the district court on January 27, 2011 (the
Agreement). The parties dispute the extent to which Husband,
Wife, and R.P. are bound by the Agreement and abided by its
terms. Around the time of the child’s first birthday, R.P. requested
increased parent time pursuant to statute and as outlined in the
Agreement. Shortly thereafter, Wife filed a motion to set aside the
Agreement and a motion to dismiss the petition for paternity for
lack of standing or failure to name an indispensable party, or, in the
alternative, for summary judgment based on declarations from
Husband and Wife. The domestic relations commissioner recommended
denial of Wife’s motion to set aside the Agreement and
motion to dismiss and ordered that Husband be joined as a party.
Husband joined the proceedings as a third-party respondent, and
together with Wife filed an objection to the commissioner’s
recommendation and a request for a de novo evidentiary hearing.
Wife then filed a voluntary withdrawal of her counterpetition. The
R.P. v. K.S.W. and D.R.W.
3. Because we decide that the UUPA does not confer standing on
R.P. to raise the paternity of the child under the facts of this case,
we need not consider whether the district court adequately
addressed the substantive issues of waiver and estoppel. See Hogs
R Us v. Town of Fairfield, 2009 UT 21, ¶ 7, 207 P.3d 1221 (“Because
lack of standing is jurisdictional, parties may raise it as an issue at
any time in the proceedings . . . .”); Balentine v. Gehring, 2007 UT
App 226, ¶ 12 n.2, 164 P.3d 1269 (“[A]n estoppel argument is not
appropriate prior to a standing determination . . . .”). Likewise,
given our conclusion that the UUPA preempts the common law,
we need not determine whether summary judgment was
appropriate under In re J.W.F. (Schoolcraft), 799 P.2d 710 (Utah
1990).
20120559-CA 3 2014 UT App 38
district court held a hearing on the objections, overturned the
commissioner’s recommendation, accepted Wife’s voluntary
dismissal of her counterpetition, and granted the motion to dismiss
based on its conclusion that R.P. lacked standing to challenge the
child’s paternity. R.P. unsuccessfully sought relief from these
decisions under rules 60(b) and 59(a) of the Utah Rules of Civil
Procedure. R.P. filed a timely appeal of the order of dismissal and
the order denying the rule 60(b) and 59(a) motions. On appeal, all
parties treat the district court’s ruling as a ruling on a motion for
summary judgment.
ISSUE AND STANDARD OF REVIEW
¶4 R.P. raises multiple issues on appeal, but the question of
whether R.P. had standing to challenge the paternity of Husband,
the presumed father under the UUPA, see Utah Code Ann. § 78B-
15-204(1)(a), is determinative. The issue of whether a party has
standing is primarily a question of law, which we review for
correctness. Washington County Water Conservancy Dist. v. Morgan,
2003 UT 58, ¶ 18, 82 P.3d 1125; Pearson v. Pearson (Pearson I), 2006
UT App 128, ¶ 12, 134 P.3d 173, aff’d, 2008 UT 24, 182 P.3d 353.3
R.P. v. K.S.W. and D.R.W.
4. R.P. argues only that he has standing in the sense of permission
to bring a paternity action. See Utah Code Ann. § 78B-15-602
(governing standing to maintain a proceeding to adjudicate
parentage). Accordingly, throughout this decision, we use the term
“standing” to refer to the permission to bring a paternity action
rather than the traditional sense of the term, which focuses on
whether the claimant “has suffered some distinct and palpable
injury that gives him a personal stake in the outcome of the legal
dispute.” Jenkins v. Swan, 675 P.2d 1145, 1148 (Utah 1983); see also
City of Grantsville v. Redevelopment Agency of Tooele City, 2010 UT 38,
¶ 14, 233 P.3d 461; In re E.H., 2006 UT 36, ¶ 49, 137 P.3d 809 (“A
plaintiff who has not been granted standing to sue by statute must
either show that he has or would suffer a distinct and palpable
injury that gives rise to a personal stake in the outcome of the case
or meet one of the two exceptions to standing recognized in cases
involving important public issues.” (citations and internal
quotation marks omitted)).
20120559-CA 4 2014 UT App 38
ANALYSIS
¶5 R.P. contends that the district court erred by ruling that
under the statute, he lacks standing to challenge the presumption
of paternity enjoyed by the husband of a married woman.4
Husband and Wife assert that the district court correctly ruled that
R.P. lacks standing under the UUPA. Although both parties agree
that the UUPA addresses the issue of standing, R.P. assumes that
the UUPA should be supplemented by the common law, which he
contends affords him standing. Husband and Wife take a contrary
view of the conclusions to be drawn under a common law approach.
¶6 We begin our analysis with an examination of Utah law
regarding the presumption of paternity for children born into a
marriage. First, we address the common law treatment of this issue,
and second, we consider the statutory framework adopted by the
Utah Legislature. Next, we determine the extent to which the Utah
R.P. v. K.S.W. and D.R.W.
20120559-CA 5 2014 UT App 38
Legislature has preempted the common law through its adoption
of the UUPA. We then turn to the effect of Wife’s counterpetition.
¶7 Ultimately, we conclude that the UUPA has preempted the
common law on the issue of who has standing to challenge a
presumed father’s paternity. We also conclude that the UUPA
limits standing here to Husband and Wife. Thus, the district court
properly dismissed R.P.’s petition. Although constitutional
considerations might require further analysis in cases such as
this—where the alleged father has an established relationship with
the child—R.P. has not raised a constitutional challenge in the
district court or on appeal. Accordingly, we leave for another day
the issue of the constitutional implications of the UUPA’s standing
limitations where the alleged father has an established relationship
with the child. We also conclude that because R.P. did not challenge
the district court’s acceptance of Wife’s voluntary dismissal
of her counterpetition, he has waived his right to proceed under it.
I. Standing to Challenge Paternity Under Utah’s Common Law
¶8 Utah courts have traditionally addressed the issue of a
party’s standing to challenge a presumed father’s paternity under
a common law test first announced in In re J.W.F. (Schoolcraft), 799
P.2d 710 (Utah 1990). There, a wife became pregnant with another
man’s child. See id. at 712. After the child was born, the wife and
the biological father abandoned the child and the juvenile court
granted custody of the child to the Division of Family Services. Id.
The husband, who at that point was living apart from the wife,
learned about the pregnancy when the child was approximately
nine months old. Id. The husband filed a petition for custody of the
child, alleging that he was the presumed father because he was
married to the wife and living with her at the time the child was
conceived. Id. The guardian ad litem (GAL) responded with a
petition seeking a determination that the husband had no legal
right to parent the child. Id. After a hearing on the matter, the
juvenile court found that the husband was not the biological father
of the child and concluded that he lacked standing to assert that it
R.P. v. K.S.W. and D.R.W.
20120559-CA 6 2014 UT App 38
was in the child’s best interest to grant him custody. Id. After this
court affirmed the juvenile court’s decision, the Utah Supreme
Court granted the husband’s petition for certiorari review. Id.
¶9 The supreme court first considered whether the GAL was
properly permitted to challenge the presumption that a child born
during a marriage is the husband’s natural child. Id. The court
ruled that, “as a general matter, the class of persons permitted to
challenge the presumption of paternity should be limited,” but
when determining who should be included in that class, “a
paramount consideration should be preserving the stability of the
marriage and protecting children from disruptive and unnecessary
attacks upon their paternity.” Id. at 713. Thus, the supreme court
instructed that standing to challenge paternity should not be
determined solely on legal status, but on a case-by-case analysis of
whether the considerations of marital stability and protection of the
child would be undermined by permitting the challenge. Id.
Because the stability of the marriage in Schoolcraft “was shaken long
ago” and the husband and wife’s marriage was “one in name
only,” the supreme court determined that the first consideration in
allowing challenges to the presumption of paternity—preserving
the stability of the marriage—was not at issue. Id. The supreme
court reached a similar conclusion with respect to the interest of
protecting the child from attacks on his legitimacy, explaining that
the child’s “expectations as to who his father is cannot be shaken by
permitting a challenge to the presumption of legitimacy,” because
“[t]he child has never had a relationship” with the husband, the
biological father, or even the wife. Id. As a result, the court held
that the GAL had standing to challenge the husband’s paternity. Id.
¶10 In 1990, when the Utah Supreme Court decided Schoolcraft,
the controlling legislation in this area was the Uniform Act on
Paternity. See Utah Code Ann. §§ 78-45a-1 to -7 (Michie 1990). The
Uniform Act on Paternity stated that paternity could “be determined
upon the petition of the mother, child, putative father, or the
public authority chargeable by law with the support of the child.”
R.P. v. K.S.W. and D.R.W.
5. Although the term is not defined, the Uniform Act on Paternity
used “putative father” to describe a man claiming to be a child’s
biological father. The UUPA instead uses the term “alleged father”
to describe “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 Ann. § 78B-15-
102(2). Throughout this opinion, we use the term “alleged father”
to describe R.P. and other persons falling within the UUPA
definition.
20120559-CA 7 2014 UT App 38
Id. § 78-45a-2 (Michie 1990).5 The Schoolcraft court did not address
the statute, which expressly authorized the child to petition for a
paternity determination. See id. Although the Schoolcraft court
ultimately allowed the child, through the GAL, to challenge the
husband’s paternity, the court’s analysis suggests that the
Schoolcraft test was to be a common law refinement of statutory
standing. See Schoolcraft, 799 P.2d at 713; see also, e.g., Pearson v.
Pearson (Pearson II), 2008 UT 24, ¶ 32, 182 P.3d 353 (denying
standing under Schoolcraft to an alleged father); Balentine v. Gehring,
2007 UT App 226, ¶¶ 9, 13, 164 P.3d 1269 (concluding that the
Uniform Act on Paternity “provide[d] that the [alleged] father may
petition for a paternity determination” but remanding for
consideration of the Schoolcraft factors).
¶11 Based on Schoolcraft, R.P. argues that he should be permitted
to challenge the presumption that Husband is the biological father
of the child born to Wife. In particular, he asserts that the district
court erred in granting summary judgment on the issue of standing
because genuine issues of material fact were in dispute with respect
to the Schoolcraft test. However, in 2005, the Utah Legislature
replaced the Uniform Act on Paternity with the UUPA. See
Uniform Parentage Act, ch. 150, 2005 Utah Laws 1014, 1014–15.
R.P.’s argument assumes that the common law Schoolcraft analysis
remains relevant under the UUPA, which was in effect at the time
R.P. filed his petition in 2010. See id.; cf. Utah Code Ann. § 78B-15-
902 (“A proceeding to adjudicate parentage which was commenced
R.P. v. K.S.W. and D.R.W.
20120559-CA 8 2014 UT App 38
before May 1, 2005 is governed by the law in effect at the time the
proceeding was commenced.”). Before we address that issue, we
consider the standing provisions of the UUPA.
II. Standing to Challenge Paternity Under the UUPA
¶12 Under the UUPA, a man is presumed to be the father of a
child when, among other situations, “he and the mother of the
child are married to each other and the child is born during the
marriage.” Utah Code Ann. § 78B-15-204(1)(a); see also id.
§ 78B-15-102(20) (“‘Presumed father’ means a man who, by
operation of law under Section 78B-15-204, is recognized as the
father of a child until that status is rebutted or confirmed as set
forth in this chapter.”). Because Husband and Wife are married to
each other and the child was born during their marriage, Husband
is the child’s presumed father under section 78B-15-204(1)(a). Once
such a presumption of paternity arises, it “may only be rebutted in
accordance with Section 78B-15-607.” Id. § 78B-15-204(2). A man
with an unrebutted presumption of paternity is the legal father of
the child. See id. § 78B-15-102(18) (“‘Parent–child relationship’
means the legal relationship between a child and a parent of the
child. The term includes the mother–child relationship and the
father–child relationship.”); id. § 78B-15-201(2) (“The father–child
relationship is established between a man and a child by . . . an
unrebutted presumption of the man’s paternity of the child under
Section 78B-15-204 . . . .”).
¶13 The UUPA specifically identifies the parties who may
maintain a proceeding to adjudicate the parentage of a child.
Section 602 of the UUPA, entitled “Standing to maintain
proceeding,” sets forth the general standing provisions under the
UUPA:
Subject to Part 3, Voluntary Declaration of Paternity,
and Sections 78B-15-607 and 78B-15-609, a
proceeding to adjudicate parentage may be
maintained by:
R.P. v. K.S.W. and D.R.W.
6. The general standing provision is also subject to section 78B-15-
609, which states,
If a child has a declarant father, a signatory to the
declaration of paternity or denial of paternity or a
support-enforcement agency may commence a
proceeding seeking to rescind the declaration or
denial or challenge the paternity of the child only
within the time allowed under Section 78B-15-306 or
78B-15-307.
Utah Code Ann. § 78B-15-609(1). The UUPA defines a “declarant
father” as “a male who, along with the biological mother claims to
be the genetic father of a child, and signs a voluntary declaration
of paternity to establish the man’s paternity.” Id. § 78B-15-102(8).
Because R.P. did not file a voluntary declaration of paternity, he is
(continued...)
20120559-CA 9 2014 UT App 38
(1) the child;
(2) the mother of the child;
(3) a man whose paternity of the child is to be
adjudicated;
(4) the support-enforcement agency or other
governmental agency authorized by other law;
(5) an authorized adoption agency or licensed
child-placing agency;
(6) a representative authorized by law to act
for an individual who would otherwise be entitled to
maintain a proceeding but who is deceased,
incapacitated, or a minor; or
(7) an intended parent under Part 8,
Gestational Agreement.
Id. § 78B-15-602 (emphasis added). Although this general provision
confers standing on “a man whose paternity of the child is to be
adjudicated,” which could arguably include R.P., that general
standing provision is expressly limited by section 607, entitled
“Limitation—Child having presumed father.”6
R.P. v. K.S.W. and D.R.W.
6. (...continued)
not a declarant father under the UUPA. See id. §§ 78B-15-301 to -313
(Voluntary Declaration of Paternity Act).
20120559-CA 10 2014 UT App 38
¶14 Section 607 states in relevant part,
Paternity of a child conceived or born during a
marriage with a presumed father as described in
Subsection 78B-15-204(1)(a), (b), or (c), may be raised
by the presumed father or the mother at any time prior to
filing an action for divorce or in the pleadings at the
time of the divorce of the parents.
Id. § 78B-15-607(1) (emphasis added). As discussed, Husband is the
presumed father of the child under section 204, see id.
§ 78B-15-204(1)(a), and that presumption “may only be rebutted in
accordance with Section 78B-15-607,” id. § 78B-15-204(2). Thus, the
UUPA plainly states that standing to challenge the presumption
that Husband is the child’s father is governed by section 607, not
the general standing provision in section 602.
A. Section 607 Is Ambiguous.
¶15 While there is no dispute that neither Husband nor Wife has
filed a divorce petition, they and R.P. disagree about the proper
interpretation of section 607. “When interpreting a statute, our goal
is to give effect to the legislature’s intent and purpose.” Francis v.
State, 2013 UT 65, ¶ 41 (citation and internal quotation marks
omitted). To determine that intent, we look to the plain language
of the statute, reading it as a whole and interpreting its provisions
to ensure harmony with other provisions in the same chapter and
related chapters. LPI Servs. v. McGee, 2009 UT 41, ¶ 11, 215 P.3d 135.
Furthermore, “[w]hen the plain meaning of the statute can be
discerned from its language, no other interpretative tools are
needed.” Id. “But when statutory language is ambiguous—in that
its terms remain susceptible to two or more reasonable
interpretations after we have conducted a plain language
R.P. v. K.S.W. and D.R.W.
20120559-CA 11 2014 UT App 38
analysis—we generally resort to other modes of statutory
construction and seek guidance from legislative history and other
accepted sources.” See Marion Energy, Inc. v. KFJ Ranch P’ship, 2011
UT 50, ¶ 15, 267 P.3d 863 (citation and internal quotation marks
omitted).
¶16 While section 602 of the UUPA lists seven classes of persons
who may adjudicate parentage under the UUPA, that section is
expressly subject to section 607. See Utah Code Ann. § 78B-15-602.
Section 607 provides, as its title suggests, limits on actions to
address paternity in cases involving a presumed father. See id.
§ 78B-15-607. The parties raise two conflicting interpretations of
that limitation based on section 607’s provision that “[p]aternity of
a child conceived or born during a marriage with a presumed
father . . . may be raised by the presumed father or the mother at
any time prior to filing an action for divorce or in the pleadings at
the time of the divorce.” See id. § 78B-15-607(1). R.P. advances a
construction of the provision that limits the time during which the
presumed father and the mother can raise a challenge to the
paternity of a child born during their marriage. Under this
interpretation, all of the persons listed in section 602 have standing
to challenge that child’s paternity at any time, except the presumed
father and the mother, who may do so only prior to filing an action
for divorce or in the divorce pleadings. R.P. contends that if the
legislature had intended to limit standing to the presumed father
and the mother, it would have inserted the word “only” into the
provision. In contrast, Husband and Wife argue that section 607
limits the right to raise the child’s paternity to the two persons
listed: the presumed father and the mother.
¶17 The remaining provisions of section 607 do not clarify which
interpretation of the limitation on standing the Utah Legislature
intended. Subsection 607(4) states, “There is no presumption to
rebut if the presumed father was properly served and there has
been a final adjudication of the issue.” Id. § 78B-15-607(4). In turn,
the UUPA defines “adjudicated father” as “a man who has been
adjudicated by a tribunal to be the father of a child,” id. § 78B-15-
R.P. v. K.S.W. and D.R.W.
7. A prior draft of the bill stated, “Paternity of a child conceived or
born during a marriage with a presumed father . . . may only be
raised by the presumed father or the mother at any time prior to
(continued...)
20120559-CA 12 2014 UT App 38
102(1), and provides that the juvenile court and the Office of
Recovery Services (ORS) are authorized to adjudicate parentage
under part 6 of the UUPA, id. § 78B-15-104(1). When read together,
these sections suggest that despite section 607’s limitation,
parentage may be adjudicated in a juvenile court or ORS
proceeding prior to the time that a divorce action is filed. But
nothing in these sections of the UUPA indicates who may initiate
such a proceeding where the child has a presumed father. On the
other hand, the interpretation advanced by Husband and Wife
finds some support in the fact that subsections 607(1)(b) and
607(1)(c) provide guidance on rebuttal of the presumption of
paternity in only two instances—a challenge to paternity by the
presumed father or a challenge by the mother. See id. § 78B-15-
607(1)(b) (presumed father); id. § 78B-15-607(1)(c) (mother).
Accordingly, we are unable to resolve the ambiguity raised by the
parties based on the plain language of the UUPA.
B. Limiting Standing to the Presumed Father and the Mother
During the Marriage Is Consistent with the Legislative
Purpose of the UUPA.
¶18 Because section 607 is susceptible to two reasonable
interpretations, we resort to other modes of statutory construction.
See Marion Energy, 2011 UT 50, ¶ 15. In particular, we may consider
the legislative history and policy objectives of the statute. See
Wilcox v. CSX Corp., 2003 UT 21, ¶ 12, 70 P.3d 85 (stating that it is
“proper to look to legislative history and policy considerations for
guidance” in resolving statutory ambiguity). R.P. calls our attention
to a draft version of section 607 that included the word “only,” and
argues that the Utah Legislature’s deletion of that word in the final
version of the statute indicates its intent that standing not be
limited to the presumed father and the mother under section 607.7
R.P. v. K.S.W. and D.R.W.
7. (...continued)
filing an action for divorce or in the pleadings at the time of the
divorce of the parents.” See S.B. 14, 55th Leg., 2005 Gen. Sess. § 65,
at 34 (Utah 2005) (as introduced Jan. 17, 2005) (emphasis added).
The House Judiciary Committee amended the bill, removing the
word “only,” among other changes. S.B. 14, House Judiciary
Committee Report, February 14, 2005, at 1–2.
20120559-CA 13 2014 UT App 38
The utility of this information is tempered, however, by Husband’s
and Wife’s reliance on the Utah Legislature’s deviation from the
uniform act’s treatment of standing when a child has a presumed
father. Section 607 of the uniform act provides, “[A] proceeding
brought by a presumed father, the mother, or another individual
to adjudicate the parentage of a child having a presumed father
must be commenced not later than two years after the birth of
the child.” Uniform Parentage Act § 607 (2002), available at
http:/ /www.uniformlaws.org/shared/docs/parentage/
upa_final_2002.pdf. But a challenge may be brought at any time if
the court determines that “(1) the presumed father and the mother
of the child neither cohabited nor engaged in sexual intercourse
with each other during the probable time of conception; and (2) the
presumed father never openly held out the child as his own.” Id.
The comments to the uniform act state that this provision provides
“a middle ground” between the approaches taken by states that
“imposed an absolute bar” on an alleged father’s right to challenge
a presumed father’s paternity and those that granted broader rights
to an alleged father. Id. § 607 comment.
¶19 The uniform act is thus worded as a limitation on
“proceeding[s] brought by” a class of individuals; it presumably
does not apply to a support-enforcement agency, authorized
adoption agency, or licensed child-placing agency. Compare id.
§ 602, with id. § 607. In contrast, the Utah Legislature adopted
language in section 607 that refers to permission to raise paternity:
“Paternity . . . may be raised by . . . .” See Utah Code Ann. § 78B-15-
607(1). The Utah Legislature further deviated from the uniform act
by removing any reference to “another individual” and providing
R.P. v. K.S.W. and D.R.W.
8. Although one legislator’s view is not controlling, we also note
that the sponsor of the UUPA explained that the amendments to
the bill, which included the deletion of the word “only” from
section 607, were to clarify that the presumed father could
challenge paternity after the entry of a divorce decree declaring
him the father if he had been defrauded by the mother into
believing the child was his biological child. Recording of Utah
Senate Floor Debates, S.B. 14, 55th Leg., 2005 Gen. Sess. (Feb. 18,
2005) (statement by Sen. Lyle Hillyard). According to this
explanation, the deletion of “only” was to eliminate any time
limitation or bar created by an adjudication in the case of fraud, not
to indicate that persons other than the presumed father or the
mother could raise paternity prior to the filing of a divorce action.
9. We note that a child with a presumed father would also be a
child with no declarant or adjudicated father. However, we
conclude that section 607 governs this case, given “the well-settled
principle of statutory construction that when two provisions
address the same subject matter and one provision is general while
the other is specific, the specific provision controls.” Emergency
(continued...)
20120559-CA 14 2014 UT App 38
that “the presumed father or the mother” may raise the child’s
paternity “at any time prior to filing an action for divorce or in the
pleadings at the time of the divorce.” See id. We consider the Utah
Legislature’s departure from the language of the uniform act
instructive of its intent to prevent a challenge to paternity during
the marriage from an outsider to the marriage.8
¶20 Our reasoning on this point is illustrated by an examination
of other sections of the UUPA addressing issues related to the
timing of filing a paternity action and persons who can file a
paternity action. Section 606 states, in part, “A proceeding to
adjudicate the parentage of a child having no declarant or
adjudicated father may be commenced at any time.” Id. § 78B-15-
606.9 This provision makes no attempt to identify a subset of the
R.P. v. K.S.W. and D.R.W.
9. (...continued)
Physicians Integrated Care v. Salt Lake County, 2007 UT 72, ¶ 19, 167
P.3d 1080 (citation and internal quotation marks omitted).
20120559-CA 15 2014 UT App 38
persons with standing under section 602 and expressly indicates
that such an action can be brought “at any time.” Id. That first
sentence thus sets no limitation on the persons with standing or on
the time in which a paternity action can be filed. This is consistent
with the heading of section 606: “No limitation—Child having no
declarant or adjudicated father.” Id. But the next sentence of section
606 expressly limits standing in one circumstance, stating, “If
initiated after the child becomes an adult, only the child may
initiate the proceeding.” Id. The “only” in the second sentence
emphasizes the exception to the unlimited right to pursue such an
action before the child reaches adulthood set forth in the
immediately preceding sentence.
¶21 Unlike the first sentence of section 606, subsection 607(1),
which is identified in the heading as a “limitation,” states that the
paternity of a child with a presumed father “may be raised by the
presumed father or the mother at any time prior to filing an action
for divorce.” Id. § 78B-15-607(1). Section 606’s lack of a subset of the
persons with general standing suggests that all of those persons
may file a proceeding to adjudicate parentage if the child has no
declarant or adjudicated father and the action is filed before the
child becomes an adult. In contrast, the inclusion in subsection
607(1) of just two of the persons who generally may raise paternity
infers that they are the only persons who may do so when there is
a presumed father and no divorce petition has been filed. This
method of delineating who may raise an issue is found in other
sections of the UUPA. For example, section 609 identifies a subset
of the persons listed in section 602, while subsection 607(2) does
not. Compare id. § 78B-15-609(1) (providing that “a signatory to the
declaration of paternity or denial of paternity or a supportenforcement
agency” may “commence a proceeding seeking to
rescind the declaration or denial or challenge the paternity of the
R.P. v. K.S.W. and D.R.W.
20120559-CA 16 2014 UT App 38
child only within the time allowed under Section 78B-15-306 or
78B-15-307”), with id. § 78B-15-607(2) (“For the presumption outside
of marriage described in Subsection 78B-15-204(1)(d), the
presumption may be rebutted at any time if the tribunal determines
that the presumed father and the mother of the child neither
cohabited nor engaged in sexual intercourse with each other during
the probable time of conception.”). Reading these provisions in
concert indicates that when the Utah Legislature identified a subset
of the persons listed in section 602 it intended to limit the parties
who could bring the action described. Under these circumstances,
we are not convinced that the absence of the word “only” in
subsection 607(1) indicates that the Utah Legislature intended that
all of the persons listed in section 602 have standing to raise the
paternity of a child with a presumed father at any time, except the
mother and the presumed father, who may do so only until a
divorce action has been initiated. Just as the Utah Legislature could
have stated that “only” the presumed father and the mother could
raise such an action, it could have also plainly stated that the
presumed father and the mother could do so “only” prior to the
filing of a divorce action.
¶22 We are more influenced by the Utah Legislature’s rejection
of the uniform act’s framework, which allows “another individual”
to challenge the paternity of a child with a presumed father
during the first two years of the child’s life. Compare Utah Code
Ann. § 78B-15-607(1), with Uniform Parentage Act § 607 (2002),
available at http://www.uniformlaws.org/shared/docs/parentage/
upa_final_2002.pdf. Although the Utah Legislature has indicated
that the UUPA is a uniform act that should be construed with
consideration for the need to promote uniformity of the law, see
Utah Code Ann. § 78B-15-901, it considered the marital
presumption of sufficient significance to warrant departure from
those uniform provisions. The Utah Legislature’s deviation from
the provisions of a uniform act is deemed intentional. Cf. State v.
Casey, 2003 UT 55, ¶ 29, 82 P.3d 1106 (“Because the Utah
Legislature did not adopt the particular wording of the [model
penal code] . . . , we assume that it did so deliberately . . . .”).
R.P. v. K.S.W. and D.R.W.
10. Professor Glennon also challenges this assumption in light of
the rise in blended families. See Theresa Glennon, Somebody’s Child:
Evaluating the Erosion of the Marital Presumption of Paternity, 102
W. Va. L. Rev. 547, 592, 603 (2000).
20120559-CA 17 2014 UT App 38
Accordingly, we are convinced that the Utah Legislature
intentionally limited the persons with standing under section 607
to the presumed father and the mother by wording section 607 as
a grant of permission to bring a paternity action rather than as a
limitation on proceedings brought by a class of persons, and by
refusing to adopt the uniform act’s inclusion of “another
individual” in section 607, which would have arguably included
R.P.
¶23 Furthermore, this interpretation is more consistent with the
purposes of the UUPA. See State v. Watkins, 2013 UT 28, ¶ 23, 309
P.3d 209 (“[O]ur primary objective is to ascertain the intent of the
[L]egislature.” (second alteration in original) (citation and internal
quotation marks omitted)); Wilcox v. CSX Corp., 2003 UT 21, ¶ 12,
70 P.3d 85 (authorizing consideration of legislative history and
legislative policy to resolve statutory ambiguity). One scholar,
Theresa Glennon, notes that the Uniform Parentage Act
incorporates the common law assumption that “parenthood within
marriage best protects children.” Somebody’s Child: Evaluating the
Erosion of the Marital Presumption of Paternity, 102 W. Va. L. Rev.
547, 590–91 (2000). Professor Glennon explains that the “unstated
presumption about marriage is that the marital relationship could
not survive the presence of the biological father.” Id. at 591–92.10
Similarly, Utah’s common law encouraged “the [presumed] father
to stay married to the child’s mother and to assume parental
responsibility for the child.” Pearson II, 2008 UT 24, ¶ 17, 182
P.3d 353. When the presumed father assumed responsibility for
the child, “any challenge” to the presumed father’s paternity
was deemed “disruptive and unnecessary.” Id. ¶¶ 11, 18. There is
nothing in the UUPA that states the purpose of section 607, but the
Utah Legislature has given no indication that its goals were any
R.P. v. K.S.W. and D.R.W.
11. Although one purpose of such a limitation might be to protect
the expectations of the child in knowing who his or her parents are,
such a policy would be incongruent with restricting the presumed
father and the mother from raising a post-divorce challenge to
paternity while allowing all other persons listed in section 602 to do
so.
20120559-CA 18 2014 UT App 38
different than those incorporated into the uniform act or reflected
in Utah’s common law limitations on attacks to the marital
presumption. Rather, the UUPA has taken a more aggressive
approach through its version of section 607 to accomplish those
goals.
¶24 Indeed, it is more difficult to imagine why the Utah
Legislature would allow all other persons identified in section 602
to challenge the paternity of a child with a presumed father at any
time but restrict a challenge by the presumed father and the mother
to any time prior to the filing of a divorce action or in the pleadings
at the time of divorce.11 This would subject the marriage, the child,
and the relationship between the child and the presumed father to
attack by outsiders to the marriage at a time critical to the
preservation of the marriage, thereby discouraging the presumed
father from staying married to the mother and assuming parental
responsibilities for the child. Furthermore, it would be directly
contrary to the UUPA’s indication that a presumed father who is
adjudicated as the father of a child in a divorce action may later
challenge that decree under the law governing vacation of
judgments, including fraud. See Utah Code Ann. § 78B-15-623(6);
Utah R. Civ. P. 60(b)(3) (providing that “[o]n motion and upon such
terms as are just, the court may in the furtherance of justice relieve
a party . . . from a final judgment . . . for (3) fraud . . . ,
misrepresentation or other misconduct of an adverse party”); see
also State v. Jeffries, 2009 UT 57, ¶ 9, 217 P.3d 265 (instructing that
statutes’ provisions should be construed to ensure harmony with
one another and to avoid interpretations of one section that destroy
another).
R.P. v. K.S.W. and D.R.W.
12. Recognizing again the limited utility of one legislator’s view, we
also note that our conclusion is consistent with the comments of the
sponsor of the UUPA:
I can tell you that this bill is very family oriented and
family friendly. We followed the precedent of a
California case, where, if you have an intact
marriage, for example, that the biological parent
cannot interfere with that intact marriage. And the
California case involved a husband and a wife; they
separated; the wife lived with another man and
became pregnant; and at that point of time, her
husband accepted her back. So she moved back, they
resumed their marriage relationship, and then the
baby was born and the biological father wanted
visitation. And the court—and this bill says the same
(continued...)
20120559-CA 19 2014 UT App 38
¶25 In contrast, conferring standing to challenge the child’s
paternity only on the presumed father and the mother, so long as
they are committed to remaining married, protects the marriage,
the child, and the child’s relationship with the presumed father
from disruptive attacks by third parties. Interpreting section 607 in
this way thus advances a goal of preserving the marriage not only
for the sake of the child whose paternity could be challenged, but
also for the sake of any other children of the marriage. Under this
construction of section 607, the presumed father or the mother can,
as a practical matter, determine whether to allow an alleged father
to be adjudicated as the child’s parent and to have a role in the
child’s life. But if both the presumed father and the mother decide
that the involvement of an alleged father would be detrimental to
the child or to the stability of the marriage, the statute prevents the
alleged father from challenging that decision. See Utah Code Ann.
§ 78B-15-607(1).
¶26 Accordingly, we conclude that section 607 reflects the Utah
Legislature’s intent to encourage a presumed father to stay married
to the mother and to raise the child in an intact marriage.12 Unless
R.P. v. K.S.W. and D.R.W.
12. (...continued)
thing—that parents together had to create the family.
Now if they were getting divorced, there would be a
different situation involved.
Recording of Utah Senate Floor Debates, S.B. 14, 55th Leg., 2005
Gen. Sess. (Jan. 25, 2005) (statement of Sen. Lyle Hillyard).
13. We express no opinion on the issue of who has standing once
a petition for divorce has been filed.
14. We acknowledge that when interpreting statutes, we “construe
the statute to avoid interpretations that conflict with relevant
constitutional mandates, so long as the resulting construction does
not conflict with the reasonable or actual legislative purposes of the
statute.” In re Estate of S.T.T., 2006 UT 46, ¶ 26, 144 P.3d 1083
(citation and internal quotation marks omitted). However, R.P. has
not argued that our interpretation of section 607 is unconstitutional
in all instances, i.e., facially unconstitutional. See Michael H. v.
Gerald D., 491 U.S. 110, 121–30 (1989) (plurality opinion) (holding
that a statute denying alleged father the right to challenge the
marital presumption did not violate alleged father’s substantive or
procedural due process rights); see also In re Baby Girl T., 2012 UT
78, ¶ 19, 298 P.3d 1251 (holding that so long as a statute provides
an alleged father a meaningful chance to develop a relationship
with his child, it satisfies due process). Likewise, R.P. has not
argued that, based on his payment of child support and exercise of
parent time pursuant to the Agreement with Wife and the alleged
acquiescence of Husband, the statute is unconstitutional as applied
to him. Accordingly, we do not consider whether section 607 is
unconstitutional. See Allen v. Friel, 2008 UT 56, ¶ 7, 194 P.3d 903
(continued...)
20120559-CA 20 2014 UT App 38
the couple decides to seek a divorce, section 607 limits the persons
with standing to raise the paternity of the child to the presumed
father and the mother.13 Consequently, the district court correctly
ruled that the UUPA does not grant R.P. the right to challenge the
child’s paternity.14
R.P. v. K.S.W. and D.R.W.
14. (...continued)
(“In general, if a defendant has not raised an issue on appeal, [an
appellate court] may not consider the issue sua sponte.” (alteration
in original) (citation and internal quotation marks omitted)); State
v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (stating that “the
preservation rule applies to every claim, including constitutional
questions”).
20120559-CA 21 2014 UT App 38
III. The UUPA’s Preemption of the Common Law
¶27 Despite the adoption of the UUPA, R.P. argues that the
Schoolcraft common law approach remains relevant and that he has
standing under that analysis. In support of that position, he relies
on our decision in Balentine v. Gehring, 2007 UT App 226, 164 P.3d
1269. Balentine involved facts similar to this case. The district court
ruled on summary judgment that an alleged father lacked standing
to challenge the presumed father’s paternity. Id. ¶¶ 4–5. We
reversed the grant of summary judgment because factual disputes
relevant to the Schoolcraft analysis remained unresolved. Id. ¶ 13.
We explained,
A particular fact that must be addressed is that [the
wife], and to some extent her husband, voluntarily
treated [the alleged father] as the biological father in
many respects during more than a year of the
marriage. For example, [the wife] stated that [the
alleged father] was the biological father; accepted
child support payments from him; allowed him
visitations of varying durations; gave him full
“custody” at a time of marital difficulty; and initially
filed a petition to establish his paternity, custody, and
child support obligations.
Id. Noting the factual similarities between Balentine and this case,
R.P. argues that the district court here improperly granted
summary judgment on standing.
R.P. v. K.S.W. and D.R.W.
15. In Balentine, we determined that the case was not governed by
the UUPA because the alleged father had filed his petition before
the effective date of the statute. Balentine v. Gehring, 2007 UT App
226, ¶ 8, 164 P.3d 1269; see also id. ¶ 9 n.1 (“Because the Utah
Uniform Parentage Act is inapplicable in this case, we need
not—and do not—decide whether [section 607] serves to limit
standing to only the mother and presumed father in the case where
the child has a presumed father.” (citation omitted)).
20120559-CA 22 2014 UT App 38
¶28 However, we conclude that the UUPA, which was not
controlling in Balentine, preempts the common law Schoolcraft
analysis.15 “Statutes ‘may preempt the common law either by
governing an area in so pervasive a manner that it displaces the
common law’ (field preemption) ‘or by directly conflicting with the
common law’ (conflict preemption).” In re Estate of Hannifin, 2013
UT 46, ¶ 10, 311 P.3d 1016 (quoting OLP, LLC v. Burningham, 2009
UT 75, ¶ 16, 225 P.3d 177). “‘[F]ield preemption occurs when the
scope of a statute indicates that [the legislature] intended [a statute]
to occupy a field’ in such a way ‘as to make reasonable the
inference that [the legislature] left no room for the [common law]
to supplement it.’” Id. ¶ 11 (second, third, fourth, and fifth
alterations in original) (quoting In re Adoption of A.B., 2010 UT 55,
¶ 31, 245 P.3d 711); see also Daniels v. Gamma West Brachytherapy,
LLC, 2009 UT 66, ¶ 49, 221 P.3d 256 (“A statute preempts a
common law claim . . . by comprehensively addressing a particular
area of law such that it displaces the common law.”). In contrast,
conflict preemption “occurs where it is impossible . . . to comply
with both [the common law] and [a statute], or where [the common
law] stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of [the legislature].” Hannifin, 2013
UT 46, ¶ 11 (alterations and omission in original) (citation and
internal quotation marks omitted). Although the legislature may
expressly indicate its intent to preempt the common law, more
frequently “‘explicit pre-emption language does not appear’” and
the “‘courts must consider whether the . . . statute’s structure and
purpose or nonspecific statutory language nonetheless reveal a
clear, but implicit, pre-emptive intent.’” Id. ¶ 10 (omission in
R.P. v. K.S.W. and D.R.W.
16. Two justices “disagree[d] with the majority’s conclusion that it
is ‘impossible’ to follow both the doctrine of equitable adoption
and Utah’s version of the Uniform Probate Code.” In re Estate of
Hannifin, 2013 UT 46, ¶ 34, 311 P.3d 1016 (Durham, J., dissenting).
20120559-CA 23 2014 UT App 38
original) (quoting Bishop v. GenTec Inc., 2002 UT 36, ¶ 9, 48 P.3d
218).
¶29 In Estate of Hannifin, the district court appointed as the
personal representative of a decedent’s estate an individual whom
the decedent had raised and treated as his son, but who was not
related biologically or legally to the decedent. See id. ¶¶ 1, 4–7. A
group of the decedent’s collateral relatives, acting through a special
administrator, challenged the alleged son’s right to inherit. Id. ¶ 8.
The district court ultimately ruled that the alleged son was entitled
to inherit the estate under the common law doctrine of equitable
adoption. Id. ¶ 1. The special administrator filed an appeal,
claiming that “Utah’s enactment of the Probate Code preempted
the common law doctrine of equitable adoption.” Id. ¶ 9.
¶30 The portion of the Probate Code at issue in Hannifin
included provisions stating that “principles of . . . equity
supplement its provisions” unless they are “displaced by the
particular provisions of th[e] code.” Id. ¶ 12 (alteration and
omission in original) (citation and internal quotation marks
omitted). Applying a conflict preemption analysis, the majority of
the Utah Supreme Court concluded that the common law doctrine
of equitable adoption was in direct conflict with the Probate Code
“in three principal respects.”16 Id. ¶ 15. First, the court noted that
“[e]quitable adoption allows children who cannot satisfy the
Probate Code’s definition of ‘Child’ to nonetheless participate in
intestate succession as if they had.” Id. Second, the Hannifin court
indicated that although the Probate Code dictated that an adopted
child could inherit from only his adoptive parents, the common law
doctrine of equitable adoption permitted the child to inherit from
both the adoptive and natural parents. Id. Third, the majority
reasoned that the common law doctrine added “confusion and
R.P. v. K.S.W. and D.R.W.
20120559-CA 24 2014 UT App 38
complexity to our law’s intestate succession scheme, in
contravention of the Code’s stated purpose of streamlining and
clarifying the distribution of a decedent’s estate.” Id. As a result, the
majority concluded that the doctrine of equitable adoption was
preempted by the Utah Legislature’s adoption of the Utah Uniform
Probate Code. Id. ¶ 16.
¶31 Unlike the Probate Code at issue in Hannifin, the UUPA does
not include a provision expressly supplementing the UUPA with
principles of equity. Instead, the UUPA provides, “This chapter is
a uniform law. In applying and construing this chapter,
consideration shall be given to the need to promote uniformity of
the law with respect to its subject matter among the states that
enact it.” Utah Code Ann. § 78B-15-901. The general
supplementation of the UUPA with Utah common law would not
advance the legislature’s goal of uniformity among the states that
have adopted the uniform act. However, with respect to section
607’s limitations on the persons permitted to challenge paternity of
a child born into a marriage with a presumed father, Utah has
deviated from the uniform act. See supra ¶¶ 18–19, 22. Therefore,
further deviation from the uniform act by supplementation with
Utah common law would not significantly undermine the goal of
uniformity.
¶32 Furthermore, the Utah Legislature has chosen to advance
some policies consistent with Utah’s common law by its adoption
of the UUPA. In particular, the limitation incorporated in section
607 furthers the intent of “preserving the stability of the marriage
and protecting children from disruptive and unnecessary attacks
upon their paternity.” See Schoolcraft, 799 P.2d 710, 713 (Utah 1990).
These policy concerns are also reflected in section 608 of the UUPA.
Section 608 allows a tribunal to deny or disregard genetic testing
based on principles of estoppel, the inequities of disrupting preexisting
relationships with the child, and the best interest of the
child. Utah Code Ann. § 78B-15-608. Notably, however, these
factors are to be applied once standing has been established, not as
a method of determining standing. Cf. Balentine v. Gehring, 2007 UT
R.P. v. K.S.W. and D.R.W.
20120559-CA 25 2014 UT App 38
App 226, ¶ 12 n.2, 164 P.3d 1269 (“[A]n estoppel argument is not
appropriate prior to a standing determination . . . .”).
¶33 In the UUPA, the Utah Legislature has limited the right to
challenge the paternity of a child with a presumed father to the
presumed father and the mother, so long as no divorce proceedings
have been filed. Consequently, the common law conflicts with the
standing provisions adopted by the Utah Legislature. Cf. In re
Estate of Hannifin, 2013 UT 46, ¶ 16, 311 P.3d 1016. The Utah
Legislature’s rejection of the broad standing permitted by the
uniform language of section 607, see supra ¶ 19, combined with its
express statement in section 204 that a presumption of paternity
“may only be rebutted in accordance with Section 78B-15-607,”
Utah Code Ann. § 78B-15-204(2), leaves no room for expansion of
standing to challenge the paternity of a child with a presumed
father under the Schoolcraft analysis. As in Hannifin, applying the
common law Schoolcraft analysis would allow some alleged fathers
“who cannot satisfy the [UUPA’s standing requirements] to
nonetheless participate in [a paternity action] as if they had.” See
Hannifin, 2013 UT 46, ¶ 15. Furthermore, “it is impossible to satisfy
both the requirements of the [UUPA] and the [Schoolcraft
analysis],” see id. ¶ 16, because section 204 states plainly that a
presumption of paternity can only be challenged as provided in
section 607 and section 607 limits standing prior to filing an action
for divorce to two persons: the presumed father and the mother, see
supra ¶ 26. To allow R.P. to challenge the child’s paternity under
Schoolcraft would be to permit him to pursue an action expressly
foreclosed by the UUPA and contrary to the Utah Legislature’s
rejection of the uniform act’s allowance of a challenge to a
presumed father’s paternity raised by “another individual” while
the marriage is intact.
¶34 This conclusion accords with the amendment history of
Utah’s paternity statutes. As noted above, see supra ¶ 10, the
Uniform Act on Paternity was in effect when the Utah Supreme
Court decided Schoolcraft in 1990. See Utah Code Ann. §§ 78-45a-1
to -7 (Michie 1990). At that time, the Uniform Act on Paternity did
R.P. v. K.S.W. and D.R.W.
17. Schoolcraft was issued October 19, 1990. Schoolcraft, 799 P.2d
710, 710 (Utah 1990). The limitation “Except as provided in
Section 78-45a-1” was added effective April 23, 1990. See Utah
Code Ann. § 30-1-17.2(2) & amend. notes (Michie Supp. 1990). The
statute previously stated, “The children born to the parties after the
date of the marriage shall be deemed the legitimate children of
both of the parties for all purposes.” Id. § 30-1-17.2 (Michie 1989).
18. The phrases “For purposes of child support collection” and “if
that paternity has been established” were added effective April 23,
1990. See Utah Code Ann. § 78-45a-1 & amend. notes (Michie 1990).
19. “Putative father” was added effective April 23, 1990. See Utah
Code Ann. § 78-45a-2 & amend. notes (Michie 1990).
20120559-CA 26 2014 UT App 38
not address the concept of a presumed father. But the “Husband
and Wife” title of the Utah Code stated, “Except as provided in
Section 78-45a-1, children born to the parties after the date of their
marriage shall be deemed the legitimate children of both of the
parties.” Id. § 30-1-17.2(2) (Michie Supp. 1990).17 The exception
found in section 78-45a-1 of the Uniform Act on Paternity
addressed the “[o]bligations of the father” of a child born outside
of marriage and stated, “For purposes of child support collection,
a child born outside of marriage includes a child born to a married
woman by a man other than her husband if that paternity has been
established.” Id. § 78-45a-1 (Michie 1990) (emphasis added).18 The
Uniform Act on Paternity codified the procedure for establishing
paternity, providing that it could “be determined upon the petition
of the mother, child, putative father, or the public authority
chargeable by law with the support of the child.” Id. § 78-45a-2
(Michie 1990) (emphasis added).19 Thus, the statute in place when
our supreme court decided Schoolcraft expressly permitted an
alleged father, such as R.P., to file a petition to establish his
paternity. See id. Furthermore, the prior Uniform Act on Paternity
did not contain a limitation to that general standing provision
similar to section 607 of the UUPA. Compare id. § 78-45a-2 (Michie
1990), with Utah Code Ann. §§ 78B-15-602, -607. See also Balentine,
R.P. v. K.S.W. and D.R.W.
20. The Utah Supreme Court acknowledged the preemption issue
but did not resolve it in Pearson II, 2008 UT 24, 182 P.3d 353. The
majority applied the Schoolcraft analysis because the parties had not
briefed or argued the application of the UUPA. See id. ¶ 10 n.8; see
also Pearson I, 2006 UT App 128, ¶ 5, 134 P.3d 173 (indicating that
the paternity challenge was initiated before the effective date of the
UUPA). In a concurring opinion, Justice Nehring noted, “With the
[UUPA] in place, . . . we are in this case endorsing a significant
development in the common law that may endure only long
(continued...)
20120559-CA 27 2014 UT App 38
2007 UT App 226, ¶ 9 (recognizing that the Uniform Act on
Paternity conferred standing on a man asserting paternity of a child
born during the mother’s marriage to another man without any
limitation analogous to that “arguably impose[d]” by the UUPA).
The only limitation on the broad standing provision of the Uniform
Act on Paternity was found in the common law.
¶35 In 2005, when the Utah Legislature repealed the Uniform
Act on Paternity and adopted the UUPA, see Utah Code Ann. §§ 78-
45g-101 to -902 (LexisNexis Supp. 2005) (renumbered in 2008 as
sections 78B-15-101 to -902), it codified the concept of a “presumed
father” in the UUPA itself and expressly limited the persons who
could challenge that presumption at any time prior to proceedings
to dissolve the marriage, see Utah Code Ann. §§ 78B-15-204, -607.
The Utah Legislature also amended title 30, “Husband and Wife,”
to include language identical to that in section 204 of the UUPA
establishing the presumption of paternity. Compare id. § 30-1-
17.2(2)(a) (LexisNexis 2013), with Utah Code Ann. § 78B-15-
204(1)(a). In addition, title 30 now contains language incorporating
the limited right to challenge that presumption as found in section
78B-15-607. See id. § 30-1-17.2(4) (LexisNexis 2013) (“A presumption
of paternity established under this section may only be rebutted in
accordance with Section 78B-15-607.” (emphasis added)). These
revisions to the Utah Code convince us that the standing
limitations of the UUPA should not be supplemented with the
common law.20
R.P. v. K.S.W. and D.R.W.
20. (...continued)
enough for litigants to properly stage a showdown between the
common law and statutory approaches to determining standing in
parentage cases.” Pearson II, 2008 UT 24, ¶ 36 (Nehring, J.,
concurring). Chief Justice Durham dissented, concluding that “the
result under either [version of the statute] would be the same,” that
the appeal should have been resolved under the UUPA, and that
the UUPA had preempted the common law. Id. ¶¶ 38–39, 45
(Durham, C.J., dissenting). Although Chief Justice Durham
ultimately concluded that the alleged father in Pearson could raise
the paternity of the child despite the existence of a presumed
father, see id. ¶ 41, the facts of the present case are easily
distinguishable. In Pearson, the married couple had filed for divorce
and the mother had challenged the husband’s paternity in her
response to the divorce petition. See Pearson I, 2006 UT App 128,
¶ 5. Accordingly, section 607’s limitations did not apply. See Utah
Code Ann. § 78B-15-607(1); see also supra ¶ 26 n. 13.
20120559-CA 28 2014 UT App 38
¶36 Husband and Wife have decided to remain married and to
raise the child as Husband’s own—a legal presumption that has not
been rebutted. The Utah Legislature, by adopting this state’s
version of section 607, has allowed them to do so free from attack
by an outsider to the marriage. The UUPA limits the right to raise
the paternity of the child to Husband and Wife. Because affording
a similar right to R.P. is directly contrary to the limitation provided
in the UUPA, we are convinced that the Schoolcraft analysis has
been preempted by the UUPA. See Hannifin, 2013 UT 46, ¶ 10;
Pearson II, 2008 UT 24, ¶ 45, 182 P.3d 353 (Durham, C.J., dissenting)
(“I would abandon the Schoolcraft analysis and defer to the
legislative scheme.”).
IV. The Effect of Wife’s Counterpetition on R.P.’s Standing
¶37 R.P. argues alternatively that even if he did not have
standing to raise the issue of paternity, Wife raised it by her answer
and counterpetition and in the Agreement. R.P. first contends that
he has standing under the UUPA because Wife admitted in her
R.P. v. K.S.W. and D.R.W.
20120559-CA 29 2014 UT App 38
response to his initial petition and in the Agreement that R.P. is
the natural father of the child. R.P. argues this is a judicial
admission and is also binding against Husband because Husband
was aware of the Agreement under which R.P. paid child support
and exercised parent time with the child. While these facts may
be significant under a common law Schoolcraft analysis, a
constitutional challenge, or an estoppel analysis conducted after
standing is established, they do not establish standing under the
UUPA.
¶38 Although the Agreement was filed, there is no indication
that it was approved by the district court. As a result, the
Agreement is not binding under the UUPA. See Utah Code Ann.
§ 78B-15-115 (“An agreement of settlement with the alleged father
is binding only when approved by the tribunal.”). Likewise, there
has been no adjudication of R.P.’s paternity. See id. § 78B-15-
201(2)(c) (providing that the father–child relationship can be
established by an adjudication of a man’s paternity). “The paternity
of a child having a presumed father,” such as the child in this case,
“may be disproved only by admissible results of genetic testing
excluding [the presumed father] as the father of the child or
identifying another man as the father of the child.” See id. § 78B-15-
617(1). R.P. admits that there has been no genetic testing of the
child in this case. Consequently, there could not have been an order
rejecting the marital presumption and adjudicating R.P. to be the
child’s father, and R.P. has not identified any such order in the
record. See id. § 78B-15-622(1) (“The tribunal shall issue an order
adjudicating whether a man alleged or claiming to be the father is
the parent of the child.”).
¶39 R.P. next contends that Wife’s counterpetition constituted a
challenge to Husband’s paternity. Although R.P. does not have
standing to raise the child’s paternity while the couple’s marriage
is intact, Wife does. We agree with R.P. that the counterpetition
expressly raised the child’s paternity, as Wife is empowered to do
under section 607. See id. § 78B-15-607(1). However, R.P. may no
R.P. v. K.S.W. and D.R.W.
20120559-CA 30 2014 UT App 38
longer obtain relief under Wife’s counterpetition because it has
been dismissed.
¶40 In response to R.P.’s petition to establish paternity, Wife
filed a counterpetition in which she admitted that R.P. is the child’s
“natural father” and sought affirmative relief in the form of “a
Decree of Paternity.” R.P. filed an answer to the counterpetition,
admitting that he is the child’s father and conceding that Wife
should have sole custody, subject to his parent time, but contesting
some of the terms requested by Wife. While these matters were
pending, R.P. and Wife participated in mediation and executed the
Agreement resolving these issues. The Agreement was filed with
but not approved by the district court. Five months later, Wife filed
a motion to set aside the Agreement and a motion to dismiss for
lack of standing, or, in the alternative, for summary judgment. The
motions were heard by the domestic relations commissioner, who
recommended denying them. After Husband was joined as a party,
he and Wife filed objections to the commissioner’s recommendation
with the district court. Before that matter could be heard, Wife filed
a voluntary withdrawal of her counterpetition. After full briefing
and argument, the district court dismissed R.P.’s petition for lack
of standing. It also stated in its order of dismissal that Wife had
filed a voluntary withdrawal of her counterpetition, “thereby
dismissing [her] claims against [R.P.].”
¶41 Although R.P. correctly argues that Wife raised the issue of
the child’s paternity, the counterpetition was later dismissed. Rule
41 of the Utah Rules of Civil Procedure governs the voluntary
dismissal of an action, including “any counterclaim, cross-claim, or
third-party claim.” Utah R. Civ. P. 41(a), (c). A counterclaimant
may voluntarily dismiss an action without court order so long as
she does so “before a responsive pleading is served or, if there is
none, before the introduction of evidence at the trial or hearing.” Id.
Once the adverse party has responded, however, the counterclaim
may only be dismissed “on order of the court.” Id. R. 41(a)(2). The
court may dismiss a counterclaim to which the adverse party has
responded based either on “a stipulation of all the parties who
R.P. v. K.S.W. and D.R.W.
20120559-CA 31 2014 UT App 38
have appeared in the action” or “upon such terms and conditions
as the court deems proper.” Id. R. 41(a)(2); see also Nu-Med USA,
Inc. v. 4Life Research, LC, 2008 UT 50, ¶ 7, 190 P.3d 1264.
¶42 There is nothing in the record which indicates that R.P.
stipulated to Wife’s voluntary dismissal of the counterpetition.
Therefore, the district court “ha[d] discretion to set the terms and
conditions of a dismissal.” Nu-Med USA, 2008 UT 50, ¶ 7. In Rohan
v. Boseman, 2002 UT App 109, 46 P.3d 753, this court adopted the
analytical framework applied by the Tenth Circuit to determine
whether a district court exceeded its discretion in dismissing a
claim to which the adverse party has responded. Id. ¶¶ 21–22.
Under that approach, a district court should grant a dismissal
unless the dismissal would cause legal prejudice to the nonmoving
party. Id. ¶ 21 (citing Ohlander v. Larson, 114 F.3d 1531, 1537 (10th
Cir. 1997)). The factors which guide a district court’s determination
of whether a party will be prejudiced by dismissal of the action are
“‘[1] the opposing party’s effort and expense in preparing for trial;
[2] excessive delay and lack of diligence on the part of the movant;
[3] insufficient explanation of the need for a dismissal; and [4] the
present stage of the litigation.’” Id. (quoting Ohlander, 114 F.3d at
1537). Had the district court considered these issues, it may have
denied the motion to dismiss and instead considered the factors
described in the UUPA to determine whether genetic testing
should be ordered to resolve the child’s paternity. See generally
Utah Code Ann. § 78B-15-608 (setting forth factors that the tribunal
should consider in determining whether to permit or admit genetic
testing). However, there is no indication that the district court
undertook this analysis. Instead, it appears that the court simply
accepted Wife’s voluntary withdrawal of her counterpetition.
¶43 Nevertheless, R.P. did nothing to call the requirements of
rule 41 to the attention of the court or to object to the district court’s
acceptance of Wife’s withdrawal of her counterpetition. Likewise,
he has not raised rule 41 or challenged the district court’s
acceptance of Wife’s voluntary dismissal of the counterpetition on
appeal. Accordingly, we do not consider the effect of Wife’s
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20120559-CA 32 2014 UT App 38
counterpetition further. See State v. Low, 2008 UT 58, ¶ 17, 192 P.3d
867 (“Where there is no clear or specific objection and the specific
ground for objection is not clear from the context[,] the theory
cannot be raised on appeal.” (alteration in original) (citation and
internal quotation marks omitted)).

Outcome: ¶44 By adopting a version of section 607 that limits permission
to raise paternity, the Utah Legislature has preempted the common
law and indicated its intention to prevent a challenge to the
paternity of a child born into a marriage from an outsider to the
marriage any time prior to the initiation of divorce proceedings.
Because Husband and Wife have decided to remain married and to
raise the child as issue of the marriage, R.P. lacks statutory
authority to raise the child’s paternity. R.P. has asserted no
constitutional challenge to the limitations contained in section 607,
nor did he object to the dismissal of the counterpetition in which
Wife raised the issue of paternity.

¶45 Affirmed.

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