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In re Beck

Court of Appeals of Oklahoma, Division IV

March 11, 2019

IN THE MATTER OF: CORY DUANE BECK, Plaintiff/Appellee,
v.
MICHELLE CANNON, Respondent, and DANNY MICHAEL CRESSWELL, Intervenor/Appellant.

          Mandate Issued: 04/10/2019

          APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE STEPHEN R. CLARK, TRIAL JUDGE

          Megan D. Martin, Becki A. Murphy, MURPHY FRANCY, PLLC, Tulsa, Oklahoma, for Plaintiff/Appellee

          Blake M. Feamster, MOYERS MARTIN LLP, Tulsa, Oklahoma, for Intervenor/Appellant

          JANE P. WISEMAN, VICE-CHIEF JUDGE

         ¶1 Danny Michael Cresswell appeals a trial court decision denying his motion to dismiss this paternity action. We are asked in this appeal to address whether this was error. After review, we affirm the trial court's decision.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 Cory Duane Beck filed a petition for paternity determination on June 26, 2013, alleging he was the natural father of EWB, born in March 2009. EWB's mother, Michelle Christine Cannon, also signed the petition. Beck stated that he and EWB resided in Sand Springs and Cannon resided in Broken Arrow. He asserted Cannon did not dispute his fatherhood of EWB and genetic test results showed he cannot be excluded as EWB's biological father. He asked the trial court to enter orders determining he is EWB's natural father, authorizing the State of Oklahoma to amend EWB's birth certificate to list him as EWB's natural father, and ordering that EWB's birth certificate be amended to correct his name.

         ¶3 A temporary order, filed July 25, 2013, indicated Beck and Cannon entered into an agreement for joint custody of EWB, with Beck receiving visitation every Friday from 6:00 p.m. through Monday at 9:00 a.m. and alternating holidays. The court ordered Beck to pay $48.47 per month for child support.

         ¶4 On October 11, 2013, the trial court filed a "Decree of Paternity and Order of Custody, Visitation and Child Support." The order noted Beck and Cannon appeared pro se and approved the terms of the decree. The court found it had jurisdiction over the parties and the minor child and that Beck is the child's biological father as determined by DNA testing. The court adjudicated Beck as EWB's father and ordered EWB's birth certificate amended to identify Beck as his father. The court awarded Beck and Cannon joint custody of EWB, with Cannon having primary physical custody. The joint custody plan provided Beck would have visitation every Friday after school until "Monday morning at school" and Cannon would have visitation every Monday after school through "Friday morning at school." The joint custody plan also set out a holiday visitation schedule. The trial court ordered Beck to pay child support in the amount of $48.47 per month.

         ¶5 On August 4, 2014, Beck filed a motion to modify custody and child support alleging a change of condition. He asserted EWB "has been residing with [Beck] and [Cannon] 50/50 visitation (2/2/3) since May 30, 2014." He alleged EWB "has been enrolled in Sand Springs Public Schools under [Beck's] address" and EWB "had excessive absences and tardiness at school last year during [Cannon's] time."

         ¶6 On September 16, 2016, Cannon filed a motion to vacate alleging that, at the time of EWB's birth, she was married to Cresswell. She alleged Cresswell is EWB's presumptive father, has parental rights, and is a necessary party to the proceedings. She claimed Beck did not timely bring his paternity action because he waited more than 4 years to establish paternity.

         ¶7 In his response and amended response, Beck alleged Cresswell executed a denial of paternity on February 24, 2011.

         ¶8 Cresswell filed a special appearance on October 24, 2016, "as a necessary third-party pursuant to 10 O.S. § 7700-607." A week later, Cresswell filed a motion to dismiss alleging that "the relief requested fails to state a claim upon which relief can be granted because the relief requested is time barred pursuant [to] 10 O.S. § 7700-607." He alleged he married Cannon in January 2003 and EWB was born in March 2009. Cresswell was listed as EWB's father on his birth certificate. He alleged he executed a denial of paternity "[o]n February 24, 2011, while mobilized with the military in Fort Dix, New Jersey, based upon the knowledge that he was not the biological father of [EWB], without being represented by counsel, and without any understanding that he had any legal rights to [EWB]." Cresswell's and Cannon's divorce decree from September 13, 2011, "indicated that there were no children of the marriage." However, Cresswell said he has maintained a relationship and regularly exercised visitation with EWB. He alleged it was not until after EWB turned four years-old that Beck filed his petition for paternity. Cresswell claimed Beck did not execute an acknowledgement of paternity (AOP) before filing his petition. Cresswell argued that his denial of paternity (DOP) is not valid without a valid acknowledgement of paternity from Beck. He asserted, therefore, that he is still the presumed father of EWB. He further asserted that the trial court did not have jurisdiction because Beck failed to bring an action to determine paternity within two years of EWB's birth.

         ¶9 Cresswell also filed a "Special Motion to Intervene as of Right," which the trial court granted.

         ¶10 In his response to the motion to dismiss, Beck stated that he and Cannon both signed an AOP. Cannon dated her signature October 22, 2009, but Beck dated his signature October 22, 2011. Beck alleged that in the petition for divorce, Cresswell stated, "There were no children born to or adopted by the Parties" and the divorce decree also provides no children were born of Cannon's and Cresswell's marriage. Beck noted that the decree of paternity entered on October 11, 2013, granted him visitation every weekend, but after the paternity decree was entered, he "ended up having physical custody of the minor child at least half of the time." According to Beck, after he filed a motion to modify the decree in August 2014, Cannon "changed her legal position, suddenly arguing that the minor child had a presumed father that was not noticed of the proceedings and requesting the paternity, custody, and child support orders be vacated as a result."

         ¶11 Beck asserted Cresswell was not a presumed father at the time the action was filed because Beck had signed and filed an AOP and Cresswell had signed a DOP before EWB turned two years-old. He further argued Cresswell is equitably estopped from asserting paternity based on the position he took in his divorce petition. Beck also asserted it is not in EWB's best interest to dismiss the paternity action.

         ¶12 Cresswell asserted that, because Beck did not execute the AOP until October 22, 2011, which was after EWB turned two, the DOP and AOP are not valid.

         ¶13 A hearing on Cresswell's motion to dismiss was held on May 1, 2017. Cresswell testified EWB was born during his marriage to Cannon and EWB's last name on his birth certificate was originally Cresswell. Cannon and Cresswell were divorced in 2011. Neither party was represented by or consulted with an attorney in the divorce proceedings. Cresswell learned that he was not EWB's biological father in late August or September 2010. He testified he executed a DOP in January or February 2011. When asked why he executed the DOP, he stated: "Mr. Beck was going to take responsibility of the child. Michelle Cannon also wanted him to be the father, and I thought that, since he was the biological father, that he would be responsible." He claimed he did not know until after he executed the DOP that he had "rights to the child." He was never served a petition in the paternity case. Cresswell stated he has ongoing visitation and consistent contact with EWB.

         ¶14 On cross-examination, Cresswell testified that he stated in the petition for divorce that no children were born of the marriage because he understood at the time that no children were born of the marriage. He also made a declaration to the court in the divorce proceedings that no children were born of the marriage. When he was asked if he knew "all along" that the paternity action was pending, he replied, "Yes." Cresswell has not and does not pay child support for EWB, and EWB does not call Cresswell "Dad."

         ¶15 Beck testified he had a paternity test performed when EWB was 15 months-old, and he is EWB's biological father. He pays child support for EWB, and EWB calls him "Dad." Cresswell voluntarily sent him the DOP which Cresswell executed within the first two years of EWB's life. When he questioned Cresswell about why he was going to claim paternity of the child, Cresswell told him "he wanted to work as a mediator between [Beck] ...


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