Trial Judge Had Authority to Seek Paternity Testing

By Attorney Gregg Herman
March 16, 2009

The Wisconsin Court of Appeals issued its consolidated opinion in Hendrick v. Hendrick, No. 2008AP722, and State v. Skarzynski, No. 2008AP723 (Wis. Ct. App. Feb 10, 2009) (recommended for publication), which affirmed the order rendered by the Milwaukee County Circuit Court Judge Francis T. Wasielewski.

Garry and Jennifer Hendrick were married in early September of 1999. Jennifer’s daughter was born in late January of 2000. Before Jennifer started her divorce action against Garry, Garry had himself, the girl and the couple’s other child tested to see if he was their biological father. He is not.

The State started a paternity action. Over Christopher Skarzynski’s objection, the court ordered testing, which revealed a 99.99 percent probability of paternity. Skarzynski then admitted that he was the girl’s biological father; it was so adjudicated and was ordered to pay $64 per month in child support.

He filed a motion to intervene in the Hendrick’s divorce action, to prevent the receipt of the test results showing that Garry is not the father of Jennifer’s daughter, arguing the marital presumption and estoppel. The circuit court denied Skarzynski’s motion and he appealed.

In the paternity action, Skarzynski contended that he should be relieved of the acknowledgment and of the support order because Jennifer was married to Garry when the girl was born. He argued that the circuit court should not have ordered genetic testing to see if he was the girl’s father and that the results should have been sealed because of the statutory presumption that a child born to a married couple is the husband’s biological child.

In an opinion authored by Judge Ralph Adam Fine, the District Court of Appeals held that the trial court did not err in ordering that Skarzynski be tested or in unsealing the test results. The circuit court found that adjudicating Skarzynski as the father would be in the child’s best interests as Garry had “essentially abandoned her” and the child knew that.

The appellate court also upheld the testing, even though the circuit court did not hold an evidentiary hearing on best interest. The Court of Appeals found that Skarzynski never requested such a hearing and, moreover, the testing was mandatory under Wis. Stat.§767.863(2).

The appellate court also held that equitable estoppel does not bar the paternity action. One of the elements of promissory estoppel is detrimental reliance. The appellate court upheld the trial court’s ruling that the only detriment to Skarzynski was possibly escaping financial responsibility – the Hendricks’ actions did not induce reliance by the girl.

Finally, the appellate court held that the trial court did not err by appointing the same guardian ad litem in the paternity and in the divorce case. The court held that there was no conflict of interest because the two children (there was no dispute that Skarzynski was not the father of Jennifer’s other daughter) did not have adverse interests.

In the divorce action, Skarzynski argued that the denial of his motion to intervene in the Hendrick’s divorce action was error. The Court of Appeals determined that Skarzynski did not meet the statutory requirements to intervene in the divorce action and thus the denial of the motion was proper.

Next week, I’ll critique of the court’s ruling and the law regarding the marital presumption in Wisconsin.

As a short preview, I’ll say now that, as shocking as it might be, I actually agree with the court!

This article originally appeared in the Wisconsin Law Journal.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.