Kielkowski v. Kielkowski

2015 UT App 59
_________________________________________________________

THE UTAH COURT OF APPEALS

JOSHUA STEVEN KIELKOWSKI,
Petitioner and Appellant,
v.
AMANDA C. KIELKOWSKI,
Respondent and Appellee.

Opinion
No. 20130225-CA
Filed March 12, 2015

Second District Court, Farmington Department
The Honorable David M. Connors
No. 114700144

Bryant J. McConkie and Adam D. Wentz, Attorneys
for Appellant

Troy L. Booher, Noella A. Sudbury, and T.R.
Morgan, Attorneys for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
JAMES Z. DAVIS concurred. SENIOR JUDGE RUSSELL W. BENCH
dissented, with opinion. 1

ROTH, Judge:

¶1 Joshua Steven Kielkowski (Husband) appeals from the
district court’s denial of his petition to modify the divorce decree
to address custody, parent-time, and support of a child, who was

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah R. Jud.
Admin. 11-201(6).
 Kielkowski v. Kielkowski

born during his marriage to Amanda C. Kielkowski 2 (Mother)
but who is not Husband’s biological offspring. We conclude that
the presumption of Husband’s paternity was neither adjudicated
by the district court nor conclusively rebutted by Husband’s
statement in his divorce filings that there were “no children at
issue in this marriage.” As a consequence, the district court erred
in denying Husband’s divorce modification petition without first
addressing his parentage claim. We reverse and remand for
further proceedings in accordance with this decision.

BACKGROUND

¶2 This case involves the application and effect of the
presumption of parentage established by the Utah Uniform
Parentage Act (the Parentage Act) in the context of a divorce
modification petition. Under the Parentage Act, a rebuttable
presumption arises that the husband of any woman who gives
birth during the marriage is the father of the child. Utah Code
Ann. § 78B-15-204(1)(a) (LexisNexis 2012). 3 The Parentage Act
also prescribes the means by which that presumption can be
rebutted. Id. § 78B-15-204(2); id. § 78B-15-607(3) (providing that
the presumption may be rebutted through genetic testing,
evidence that the mother and presumed father neither cohabited
nor engaged in a sexual relationship at the time of the child’s

2. Although Mother no longer uses the last name Kielkowski, we
retain the case name Kielkowski v. Kielkowski here for consistency
with the district court proceedings.

3. Because the pertinent provisions of the Parentage Act have not
been modified since the birth of the child at issue in this case, we
cite the current codification of the Utah Code Annotated for the
reader’s convenience.

20130225-CA 2 2015 UT App 59
 Kielkowski v. Kielkowski

conception, or through an adjudication that the husband is not
the father).

¶3 Husband married Mother in July 2002, and they separated
in 2007. During the separation, Mother became pregnant with
another man’s child (Child). Child was born in 2009. Husband
was aware that Child was not his biological son, but he had a
relationship with Child from his birth until sometime after his
second birthday.

¶4 In March 2011, the parties obtained a default divorce
without the benefit of counsel. Husband relied on the Online
Court Assistance Program (OCAP) to prepare a verified divorce
petition, from which the divorce decree automatically generated.
In the verified petition, Husband represented, by checking the
applicable box, that there were “no children at issue in this
marriage” because he understood the OCAP questionnaire to be
asking only about biological children. As a result, the final
divorce decree stated simply that “[t]here are no children at
issue in this marriage” and contained no provisions regarding
Child’s custody, parent-time, or support. Mother did not
respond to the divorce petition, and the decree was granted by
default. 4

¶5 For about six months after the divorce was finalized,
Mother allowed Husband to exercise parent-time with Child and
Husband made regular payments to Mother that he considered
to be child support. Sometime prior to April 2012, Mother
initiated an adoption proceeding to allow her new husband to
adopt Child. She began denying Husband access to Child in

4. In her acceptance of service of the petition, Mother gave her
“consent that Judgment by Default may be entered against [her]
at any time . . . in accordance with the terms of the Verified
Divorce Petition.”

20130225-CA 3 2015 UT App 59
 Kielkowski v. Kielkowski

January 2012 and, around the same time, started refusing
Husband’s child support payments. 5

¶6 In April 2012, just over a year after the divorce was
finalized, Husband filed a petition to modify the divorce decree,
in which he requested that the court “modify the parties’ Decree
because the Decree fails to address the custody of the parties’
minor child.” He asked the court to rule on his rights and
obligations to Child, specifically on issues pertaining to legal
custody, parent-time, and child support. Mother objected,
arguing that Husband was not the biological father of Child and
that he had effectively rebutted the presumption of paternity
when he swore under oath in the verified divorce petition that
there were no children at issue.

¶7 After a hearing on the modification petition, the domestic
relations commissioner recommended that the district court “not
use [its] equitable powers to change the divorce decree” because
Husband knew there was a child born during the marriage and
yet stated in the verified divorce petition that there were no
children at issue and then made no effort to establish his rights
and obligations as a father to Child during the divorce
proceedings. Husband objected to the commissioner’s
recommendation on the basis that “[t]he Decree of Divorce failed
to address any issues related to the minor child, . . . who was
born into the marriage, including custody and child support

5. Mother disagrees with Husband’s characterization of his
payments as child support and with his description of the
circumstances that led to the termination of the payments. She
contends that after Husband moved out of the marital home, his
grandfather continued to reside there and Husband paid $300 a
month for the grandfather’s rent. According to Mother, Husband
stopped making payments in September 2011 because the
grandfather had moved out of the marital home.

20130225-CA 4 2015 UT App 59
 Kielkowski v. Kielkowski

issues.” He requested a hearing before the district court. Mother
responded that the district court adequately addressed the issue
of children because it found, based on Husband’s own
representations, that there were no children at issue in the
marriage.

¶8 After a hearing on Husband’s objection, the district court
adopted the commissioner’s recommendation and denied
Husband’s petition to modify. The court stated that “it is
undisputed that [Husband] is not the natural father of the minor
child” and that although Husband and Mother “were married at
the time of [Child]’s birth,” Husband “prepared and signed a
formal legal document under oath wherein [he] affirmatively
stated there were ‘no children at issue [in this] marriage,’ thus
rebutting the presumption that he is the legal father of [Child].”
Husband appeals.

ISSUE AND STANDARDS OF REVIEW

¶9 Husband challenges the district court’s decision to deny
his petition to modify the divorce decree. We “generally review[]
the determination to modify a divorce decree for an abuse of
discretion.” Sill v. Sill, 2007 UT App 173, ¶ 8, 164 P.3d 415
(citation and internal quotation marks omitted). However, to the
extent “that determination is based on a conclusion of law,” as is
the case here, “we review [the modification decision] for
correctness.” Id. (citation and internal quotation marks omitted).

ANALYSIS

¶10 Husband claims that the district court erred in denying
his petition to modify the divorce decree for the purpose of
adding provisions for the custody and support of Child, who is
legally presumed to be Husband’s son under the Parentage Act.
According to Husband, the failure of the default divorce decree

20130225-CA 5 2015 UT App 59
 Kielkowski v. Kielkowski

to take Child into account constitutes a material omission
sufficient to warrant modification of the decree. The district
court explained that it was denying the modification petition
because Husband had effectively rebutted any presumption of
parentage when he represented under oath in the verified
petition for divorce that there were “no children at issue in this
marriage.”

¶11 Mother asserts a number of grounds for upholding the
district court’s decision. First, she asserts that the court already
adjudicated paternity in the divorce decree’s provision, based on
Husband’s own representation, that the marriage produced no
children. Second, she argues that to overcome the res judicata
effect of the adjudication, Husband had to demonstrate a
substantial change in circumstances, which he did not. Mother
also argues that if Husband is contending that the divorce decree
contains a mistake based on Husband’s sworn representation,
then he was required to file a timely motion under rule 60(b) of
the Utah Rules of Civil Procedure to set aside the divorce decree,
which he did not do. Finally, Mother contends that even if there
is a basis for modification, Husband is prohibited from asserting
the presumption of parentage now because the Parentage Act
required the presumption to be asserted during the divorce
proceedings.

¶12 We conclude that the district court did not adjudicate
Husband’s paternity of Child and that the absence of any
provisions pertaining to Child is a basis for modification.
Accordingly, we remand for the district court to adjudicate
parentage under the Parentage Act. Depending on the outcome,
the court then may modify or not modify the decree as
appropriate.

I. Adjudication of Parentage

¶13 Under the Parentage Act, “[a] man is presumed to be the
father of a child if . . . he and the mother of the child are married

20130225-CA 6 2015 UT App 59
 Kielkowski v. Kielkowski

to each other and the child is born during the marriage.” Utah
Code Ann. § 78B-15-204(1)(a) (LexisNexis 2012). This
presumption arises automatically upon the child’s birth and
remains in effect “until that status is rebutted or confirmed as set
forth in [the Parentage Act].” Id. § 78B-15-102(20) (defining
“[p]resumed father” as “a man, who by operation of law under
[the Parentage Act], is recognized as the father of a child until
that status is rebutted or confirmed as set forth in [the Parentage
Act]”); see also R.P. v. K.S.W., 2014 UT App 38, ¶ 12, 320 P.3d
1084 (explaining that when “a man . . . ‘and the mother of the
child are married to each other and a child is born during the
marriage,’” a presumption arises that the man is the child’s legal
father (quoting Utah Code Ann. § 78B-15-204(1)(a))). Once
established, this presumption can be challenged only “by the
presumed father or the mother” during the course of the
marriage or “in the pleadings at the time of the [parties’]
divorce.” Utah Code Ann. § 78B-15-607(1). To successfully rebut
the presumption of paternity, the challenging party must
provide

(a) genetic test results that exclude the
presumed father;
(b) genetic test results that rebuttably identify
another man as the father in accordance
with [another section of the Parentage Act];
(c) evidence 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; or
(d) an adjudication under this part.

Id. § 78B-15-607(3). When the mother is the challenging party,
she must also “show by a preponderance of the evidence that it

20130225-CA 7 2015 UT App 59
 Kielkowski v. Kielkowski

would be in the best interests of the child to disestablish the
parent-child relationship.” 6 Id. § 78B-15-607(1)(c).

¶14 Mother contends that Husband challenged the
presumption when he represented in the verified petition for
divorce that “[t]here are no children at issue in this marriage”
and then failed to clarify his relationship with Child before the
entry of the divorce decree. She further asserts that the district
court, in effect, concluded that the presumption had been
successfully rebutted through the finding in the default decree
that “[t]here are no children at issue in this marriage.”
Consequently, she argues, the court “adjudicated” parentage
and Husband is now “estopped from raising the [paternity]
issue.” See id. § 78B-15-607(1)(a), (3)(d). In this regard, Mother
seems to be making a res judicata argument; “[a]n issue that has
been definitively settled by judicial decision,” Black’s Law
Dictionary 1425 (9th ed. 2009), cannot be raised again to the court
absent a substantial change in circumstances. Taylor v. Elison,
2011 UT App 272, ¶ 13, 263 P.3d 448 (noting that a petition to
modify child custody can only be brought when there is a
substantial change in circumstances not contemplated by the
divorce decree because “principles of res judicata . . . ‘favor the
one-time adjudication of a matter to prevent the undue
burdening of the courts and the harassing of parties by repetitive
actions’” (quoting Elmer v. Elmer, 776 P.2d 599, 602 (Utah 1989))).

6. If either party attempts to rebut the presumption through
genetic testing, “the tribunal may disregard genetic test results
that exclude the presumed or declarant father if the tribunal
determines that . . . it would be inequitable” or not in the child’s
best interest to disrupt the relationship between the child and
the presumed father. Utah Code Ann. § 78B-15-608(1)(b), (2)
(LexisNexis 2012).

20130225-CA 8 2015 UT App 59
 Kielkowski v. Kielkowski

¶15 Husband counters that he did not intentionally repudiate
his presumed parentage but that he simply misunderstood the
OCAP question regarding children of the marriage. Therefore,
he contends, the court’s finding, which was automatically
generated based on his statement in the verified petition, does
not amount to an “adjudication” of the parentage issue. We
agree with Husband. 7

¶16 Adjudication is “[t]he legal process of resolving a
dispute.” Black’s Law Dictionary 47. Under the Parentage Act,
parentage is “adjudicate[d]” when “the question of paternity has
been raised in the pleadings in a divorce and the tribunal
addresses the issue and enters an order.” Utah Code Ann. § 78B-
15-607(1)(a); see also id. § 78B-15-607(4) (“There is no
presumption to rebut if the presumed father was properly
served and there has been a final adjudication of the issue.”). We
addressed what it means to “adjudicate” parentage under the
Parentage Act in the context of a default divorce decree in Reller
v. Reller, 2012 UT App 323, 291 P.3d 813

¶17 In Reller, the district court had entered a default divorce
decree that stated that the husband and the wife had one child.

7. Husband also contends that using his statement in the verified
petition to conclusively overcome his legal presumption of
paternity violates his “‘fundamental liberty interest’” in raising
his child, which is a right “‘protected by . . . the United States
Constitution.’” (Quoting In re S.A., 2001 UT App 307, ¶ 12, 37
P.3d 1166.) Because we resolve this issue in Husband’s favor on
other grounds, we do not reach his constitutional claim. See State
v. Thurman, 846 P.2d 1256, 1262 (Utah 1993) (noting that
“‘judicial restraint requires that courts avoid reaching
constitutional questions in advance of the necessity of deciding
them’” (quoting Lyng v. Northwest Indian Cemetery Protective
Ass’n, 485 U.S. 439, 445 (1988))).

20130225-CA 9 2015 UT App 59
 Kielkowski v. Kielkowski

Id. ¶ 2. The husband later moved to modify the custody
arrangement. Id. The wife responded with her own petition to
modify, in which she asserted, for the first time, that the
husband was not the child’s father. Id. She then sought to join
another man—the child’s actual biological father—so that he
could be adjudicated as the father under the Parentage Act and
be required to support the child. Id. ¶ 3. When the biological
father entered the case, he contended that “parentage had
already been adjudicated in [the parties’] divorce proceeding,”
id. ¶ 4, and that, as a result, “res judicata . . . bar[red] the new
adjudication of parentage,” id. ¶ 8. We rejected that contention
on appeal. Id. ¶ 14. We decided that although the husband was
presumptively the child’s father under the Parentage Act and the
parties’ default decree stated that he was the father, a
“perfunctor[y] recit[al] in a default divorce decree that there was
one child resulting from the marriage does not elevate the
question of paternity to one that ‘the tribunal addresses’ for
purposes of the [Parentage Act] so as to estop the parties ‘from
raising the issue again’” in subsequent proceedings. Id. ¶ 13
(quoting Utah Code Ann. § 78B-15-607(1)(a) (LexisNexis 2008)).
Rather, adjudication, or legal resolution, of a parentage dispute
occurs only when there is “‘an objective, impartial determination
of the best interests of the child.’” Id. (quoting Elmer, 776 P.2d at
603); see also Utah Code Ann. § 78B-15-623(3) (LexisNexis 2012)
(“In a proceeding to dissolve a marriage, the tribunal is
considered to have made an adjudication of the parentage of a
child if the question of paternity is raised and the tribunal
adjudicates according to Part 6 [of the Parentage Act].”); Utah
Code Ann. §§ 78B-15-607(1)(b)–(c), -608(2) (explaining that a
court must consider the child’s best interest in assessing whether
the presumption of parentage is rebutted or confirmed). 8

8. The portion of the Parentage Act that describes the contents of
an order adjudicating paternity lends further support to the
conclusion that a decree’s statement concerning paternity that is
(continued...)

20130225-CA 10 2015 UT App 59
 Kielkowski v. Kielkowski

¶18 As in Reller, no “objective, impartial determination” of
Child’s best interest was ever made in this case. Neither party
raised the parentage issue during the divorce proceedings, much
less offered any of the evidence required by the Parentage Act to
rebut or confirm the statutory presumption that Husband was
Child’s father. Although Husband’s representation that there
were “no children at issue in this marriage” may suggest he was
trying to disclaim paternity, his statement did not amount to
genetic proof that he was not Child’s father (or that someone else
was) or evidence that he and Mother did not cohabit or engage
in a sexual relationship at the time of conception. See Utah Code
Ann. § 78B-15-607(3). Moreover, Mother did not present any
evidence of her own to rebut the presumption. And because the
parties’ approach seemed to simply pass over Child’s existence
rather than to place the question of his paternity squarely before
the tribunal, the district court received no information to alert it
that there was a child connected to the parties in any way, much
less that the respondent was Child’s mother and the petitioner
his presumed father. Thus, the court had no notice or
opportunity to consider or determine Child’s needs or interest
when it entered the divorce decree. It simply entered a decree by
default on a form that was automatically generated from
Husband’s verified petition and merely reiterated Husband’s
representation that there were “no children at issue in this
marriage.” As a result, the district court judge who signed the
decree never considered Child’s best interest.

(…continued)
made by default is not an adjudication of parentage. That section
requires an order adjudicating paternity to determine “whether
a man alleged or claiming to be the father is the parent” and to
“identify the child by name and date of birth.” Utah Code Ann.
§ 78B-15-622(1)–(2) (LexisNexis 2012).

20130225-CA 11 2015 UT App 59
 Kielkowski v. Kielkowski

¶19 If we were to accept Mother’s contention that the decree’s
automatically generated finding that the marriage produced no
children constituted an adjudication of paternity, we would
sanction the termination of Husband’s legally presumed
parental rights without compliance with the Parentage Act and,
perhaps more importantly, without the benefit of judicial inquiry
into the impact of termination on Child’s best interest. This runs
counter to the Parentage Act’s specific requirements for the
rebuttal of the presumption of paternity and its pervasive focus
on a child’s best interest as a core consideration in assessing
whether the presumption has been overcome. Id. §§ 78B-15-
607(1)(b)–(c), -608(2); cf. R.B. v. L.B., 2014 UT App 270, ¶ 16, 339
P.3d 137 (observing, in the context of a default custody
provision, that “parties cannot stipulate away the district court’s
statutory responsibility to conduct a best-interest analysis”). It
also seems contrary to a stated purpose of the Parentage Act,
which is “to maintain [a presumed father’s] legal rights and
obligations over a child” when another father is not readily
identifiable. See Reller, 2012 UT App 323, ¶¶ 18–19 (alluding to
the fact that the presumption prevents the child from being left
“in the lurch” if the mother’s husband is not the biological father
and another man has not been adjudicated the father); cf. Fauver
v. Hansen, 803 P.2d 1275, 1278 (Utah Ct. App. 1990) (“[T]he
primary purpose of the Uniform Paternity Act,” which was the
predecessor of the Parentage Act but did not address presumed
parentage, “is to require a child’s father to pay expenses of
pregnancy and child support, not to avoid such.”). Accordingly,
we conclude that the district court did not adjudicate Husband’s
paternity or address any other issues related to Child in the
default divorce decree.

II. Modification Petition

¶20 Because the district court did not adjudicate paternity, we
now consider whether Husband may properly raise this issue in
a modification petition. In doing so, we first address whether a
modification petition is appropriate under the circumstances of

20130225-CA 12 2015 UT App 59
 Kielkowski v. Kielkowski

this case. Then, we address Mother’s claim that the Parentage
Act precludes Husband from raising his presumed parentage for
the first time in a modification petition.

A. Circumstances Warranting Modification

¶21 A party to a divorce decree may move to modify the
decree only under certain conditions. This is because res judicata
principles generally preclude reconsideration of issues that have
previously been judicially determined. Smith v. Smith, 793 P.2d
407, 410 (Utah Ct. App. 1990). In the context of a custody
dispute, the res judicata policy promotes stability by
“protect[ing] children from the deleterious effects of ‘ping-pong’
custody awards” and protects parties from the burden of
repetitive litigation. Taylor v. Elison, 2011 UT App 272, ¶ 13, 263
P.3d 448. Equity, however, allows the “courts to reopen
determinations if the moving party can demonstrate a
substantial change in circumstances” not contemplated by the
decree itself and that modification is in the best interest of the
child. Smith, 793 P.2d at 410. “‘[T]he res judicata aspect of the
[changed-circumstances] rule,’” however, is “‘always . . .
subservient to the best interests of the child.’” Taylor, 2011 UT
App 272, ¶ 14 (quoting Elmer v. Elmer, 776 P.2d 599, 603 (Utah
1989)). And in cases where a custody issue has not yet been
adjudicated by the court, “‘the res judicata policy underlying the
changed-circumstances rule is at a particularly low ebb’ and
must not be so inflexible as to categorically foreclose
examination of the child’s well-being.” Id. (quoting Elmer, 776
P.2d at 603). The reasoning behind this principle is that “‘an
unadjudicated custody decree is not based on an objective,
impartial determination of the best interests of the child’ and
‘may in fact be at odds with the best interests of the child.’” Id.
(quoting Elmer, 776 P.2d at 603); accord Smith, 793 P.2d at 410.

¶22 Although we draw these principles from cases that
involve the modification of unadjudicated custody arrangements
rather than unadjudicated parentage, their statements regarding

20130225-CA 13 2015 UT App 59
 Kielkowski v. Kielkowski

the primacy of best interest considerations over res judicata seem
equally applicable in the context presented here. As with
custody decisions, best interest is a core concern of a parentage
determination in a case where there is a presumed father. See
Utah Code Ann. §§ 78B-15-607(1)(b)–(c), -608(2) (LexisNexis
2012). And, as with custody decisions, parentage is not
adjudicated if the district court does not consider the child’s best
interest before entering the default divorce decree. Reller v.
Reller, 2012 UT App 323, ¶ 13, 291 P.3d 813 (relying on Elmer, 776
P.2d at 603). Thus, it follows that the “‘res judicata policy
underlying the changed-circumstances rule’” must also be “‘at a
particularly low ebb’” in the context of a modification petition
involving an unadjudicated parentage issue, so as not to
“categorically foreclose examination of the child’s well-being.”
See Taylor, 2011 UT App 272, ¶ 14 (quoting Elmer, 776 P.2d at
603); see also Reller, 2012 UT App 323, ¶ 13 n.4 (explaining that
because “the issue of paternity was not adjudicated in the initial
decree, . . . res judicata and collateral estoppel do not bar the
parties from subsequently raising the issue”).

¶23 Husband filed the petition to modify in this case on the
basis that the default divorce decree did not adjudicate Child’s
parentage and left unaddressed any contingent concerns relating
to custody, parent-time, or support. Utah appellate courts have
previously held that when a decree does not address a
significant aspect of the parties’ circumstances, modification may
be appropriate “to meet the need created by the absence of a
provision.” Thompson v. Thompson, 709 P.2d 360, 362 (Utah 1985)
(recognizing modification as the means to remedy an omission
in the decree about which party was responsible for payment of
a specific debt); see also Taylor, 2011 UT App 272, ¶ 14 (explaining
that a modification petition permits the district court to “‘reopen
[the divorce] decree if material facts were not before the court’”
(quoting Elmer, 776 P.2d at 603)). Such is the case here. Because
there was no adjudication of parentage, Husband’s presumptive
status as the legal father of Child endures, and his rights and
obligations to Child ought to have been specified in the decree.

20130225-CA 14 2015 UT App 59
 Kielkowski v. Kielkowski

In this regard, the default decree’s statement that “[t]here are no
children at issue in this marriage” was inaccurate, and the
decree’s omission of any provisions concerning Child amounted
to error. See Utah Code Ann. § 30-3-10(1) (LexisNexis Supp.
2014) (requiring the court to “make an order for the future care
and custody of the minor children” when their parents separate).
Modification of the decree to adjudicate paternity and, if
necessary, to enter appropriate orders for support, custody, and
parent-time is therefore necessary “to meet the need created by
the absence of a provision.” See Thompson, 709 P.2d at 362.

¶24 Mother contends that a modification petition is
nevertheless an improper vehicle for changing the divorce
decree under the circumstances of this case because the court’s
finding that there were no children produced from the marriage
was based on Husband’s own mistaken representation in the
verified petition. Thus, she argues, Husband’s only remedy was
to file a motion to set aside the decree under rule 60(b)(1) of the
Utah Rules of Civil Procedure. See Utah R. Civ. P. 60(b)(1) (“On
motion . . . , the court may in the furtherance of justice relieve a
party . . . from a final judgment . . . [for] (1) mistake . . . .”). She
further argues that even if Husband’s petition to modify could
properly be construed as a rule 60(b) motion, it was untimely
because rule 60(b)(1) motions must be filed not more than three
months after the entry of the judgment, see Utah R. Civ. P.
60(b)(1), 9 and Husband’s petition was not filed until more than
one year after the decree was entered.

¶25 If we were to accept Mother’s contention that Husband’s
sole remedy in this case was to file a timely rule 60(b) motion,

9. On May 1, 2014, rule 60(b) was amended to require a rule
60(b)(1) motion to be filed “not more than 90 days after the
judgment.” Utah R. Civ. P. 60(b)(1). We cite the version in effect
at the time of the modification petition.

20130225-CA 15 2015 UT App 59
 Kielkowski v. Kielkowski

we would undermine the long history of statutory and case
authority that identifies a child’s best interest as an
indispensable consideration in making decisions about
parentage, custody, and care. In other words, we would allow
rule 60(b)(1)’s three-month time proscription 10 to trump the
child’s best interest, even in cases—such as this one—where best
interest was never judicially considered. Such an approach
seems to be an unjustified departure from a well-established
principle supported by statute and precedent.

¶26 Mother argues that Reller v. Reller, 2012 UT App 323, 291
P.3d 813, offers a basis for such a deviation because in that case,
we expressed agreement with the statement of one of the parties
that “[r]ule 60(b) was really the only path available to set aside
the [default divorce d]ecree” that treated the husband as the
minor child’s legal father without having first adjudicated
parentage. Id. ¶¶ 2, 15 (internal quotation marks omitted). Reller,
however, is distinguishable.

¶27 In Reller, the husband and the wife had filed a stipulated
motion to vacate the default decree so that the paternity of a
child born during the marriage could be adjudicated. Id. ¶¶ 3, 15.
On appeal, the biological father argued that a motion to vacate
was not an available avenue for the relief sought; rather, he
contended that the husband’s and the wife’s remedy lay in rule
60(b). Id. ¶ 15. It was in this context that we agreed that a rule
60(b) motion was the appropriate means for asking the trial
court to consider the unadjudicated issue of parentage in the first
instance. Id. ¶¶ 15–17. The possibility that the husband and the
wife in Reller could have sought to modify the default decree to
adjudicate paternity was simply never presented to either the

10. Neither party has raised rule 60(b)(6) as a means for relief.
Therefore, we do not consider whether a rule 60(b)(6) motion
might be appropriate under these circumstances.

20130225-CA 16 2015 UT App 59
 Kielkowski v. Kielkowski

trial court or the court of appeals. 11 The only question before us
was whether the trial court could properly construe the motion
to vacate as a motion under rule 60(b) and, if so, whether that
motion was timely. Id. ¶¶ 16–17. Given the circumstances of
Reller, our “agreement” with the statement that rule 60(b) was
“really the only path available to set aside the [d]ecree” does not
have the precedential significance that Mother claims. See id. ¶ 15
(alteration in original) (internal quotation marks omitted).
Accordingly, we conclude that although a rule 60(b)(1) motion
might have been filed here to address the defects in the default
decree, rule 60(b) is not the only remedy available to the parties
under these circumstances. 12 Cf. R.B. v. L.B., 2014 UT App 270,
¶¶ 41–43, 339 P.3d 137 (affirming the district court’s
modification of a child custody order because even though the
mother had filed a rule 60(b) motion, “the district court did not
rely on rule 60(b) as the procedural mechanism to address the
dispute” but instead “used [the father’s motion to enforce the
decree] as an invitation to conduct its best interest review”).
Rather, a motion for modification may be the preferred option
because it is procedurally better suited to address the problem of
a significant unadjudicated issue in the original decree.

11. The husband and the wife had each initially filed a petition to
modify the default divorce decree as it related to the order of
custody. Reller v. Reller, 2012 UT App 323, ¶ 2, 291 P.3d 813.
After the husband learned that he was not the child’s biological
parent and the wife moved to join the actual biological father,
the husband and the wife abandoned their petitions to modify
and entered into a stipulated motion to set aside the default
decree. Id. ¶ 3.

12. Because we conclude that rule 60(b) is not Husband’s sole
remedy, we do not address whether his petition to modify could
properly be considered a rule 60(b) motion or its timeliness.

20130225-CA 17 2015 UT App 59
 Kielkowski v. Kielkowski

B. Timeliness of Husband’s Claim

¶28 Alternatively, Mother contends that Husband cannot raise
his presumed parentage for the first time in a modification
petition because the plain language of the Parentage Act requires
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 of the parents.” See Utah
Code Ann. § 78B-15-607(1) (LexisNexis 2012) (emphasis added).
Husband counters that because the presumption that he was
Child’s father arose automatically upon Child’s birth and
because neither party actually challenged paternity before or
during the divorce proceedings, “[n]o additional, affirmative
action [was] required by [Husband] to formalize his presumed
paternity.” In light of the plain language of the Parentage Act
and our earlier conclusion that the presumption of Husband’s
paternity was not rebutted, we conclude that his parentage claim
is properly a subject of the petition to modify the default decree.

¶29 When interpreting statutory language, “our primary goal
is to evince the true intent and purpose of the Legislature.”
Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d
863 (citation and internal quotation marks omitted). “The best
evidence of the legislature’s intent is the plain language of the
statute itself.” Id. (citation and internal quotation marks
omitted). Moreover, “[s]tatutes should be read as a whole and
their provisions interpreted in harmony with related provisions
and statutes.” Martinez v. Media-Paymaster Plus/Church of Jesus
Christ of Latter-day Saints, 2007 UT 42, ¶ 46, 164 P.3d 384.

¶30 When the pertinent sections of the Parentage Act are read
as a whole, Mother’s argument that Husband’s assertion of the
presumption is untimely is not supported by the act’s plain
language. To the contrary, the Parentage Act creates an
automatic presumption that a mother’s husband is the father of
any child born during their marriage. Utah Code Ann. § 78B-15-

20130225-CA 18 2015 UT App 59
 Kielkowski v. Kielkowski

204(1)(a). That presumption endures until rebutted. Id. § 78B-15-
204(2). It is only when a mother or presumed father seeks to
challenge this presumption that the procedural restraint comes
into play: “Paternity 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 of the parents.”
Id. § 78B-15-607(1) (emphasis added). Because neither party
attempted to rebut the presumption that Husband was Child’s
father prior to or through the divorce proceedings—and we have
determined that the presumption was not rebutted by the decree
itself under the circumstances—the presumption that Husband
is Child’s legal father is still in effect. Thus, the parties may
address the presumption through a modification proceeding,
even though parentage was not initially raised in the divorce
pleadings, because a modification petition reopens the divorce
proceedings through a district court’s continuing jurisdiction. See
Taylor v. Elison, 2011 UT App 272, ¶ 14, 263 P.3d 448 (explaining
that a district court may grant a modification petition and
“‘reopen [the divorce] decree if material facts were not before the
court or if the circumstances . . . had subsequently changed’”
(omission in original) (quoting Elmer v. Elmer, 776 P.2d 599, 603
(Utah 1989))).

¶31 We therefore remand this case to the district court to
address the parentage issue. This requires the court to accept, as
a baseline, that Husband is the presumed father. Either party,
however, may attempt to rebut this presumption as provided
under the Parentage Act.

CONCLUSION

¶32 The paternity of Child was never adjudicated by the
district court during the divorce proceedings. Thus, we reverse
the denial of the petition to modify and remand for the district

20130225-CA 19 2015 UT App 59
 Kielkowski v. Kielkowski

court to address the issue of parentage and to make any
appropriate modification.
____________

BENCH, Senior Judge (dissenting):

¶33 I respectfully dissent.

¶34 Based on Husband’s own representations, the default
decree of divorce definitively held that there were “no children
at issue in this marriage.” Husband now claims he made a
mistake and seeks to assert rights to a child born during the
marriage.

¶35 To set aside a default judgment, a party must proceed
under our rules. Rule 55(c) of the Utah Rules of Civil Procedure
provides, “For good cause shown the court may set aside an
entry of default and, if a judgment by default has been entered,
may likewise set it aside in accordance with Rule 60(b).” Utah R.
Civ. P. 55(c). Until today, Utah courts have always held that the
only way to set aside a default judgment is in accordance with
the provisions of rule 60(b). See, e.g., Calder Bros. Co. v. Anderson,
652 P.2d 922, 926 (Utah 1982); Maxwell v. Maxwell, 796 P.2d 403,
406–07 (Utah Ct. App. 1990); Amica Mut. Ins. Co. v. Schettler, 768
P.2d 950, 969 (Utah Ct. App. 1989). This black-letter principle
was recently applied in the context of a case involving the
Parentage Act. Reller v. Reller, 2012 UT App 323, ¶ 15, 291 P.3d
813 (stating that rule 60(b) is the “only path available” for setting
aside a default divorce decree (internal quotation marks
omitted)).

¶36 Husband has never filed a rule 60(b) motion. But even if
we construe Husband’s petition to modify as a rule 60(b) motion,
it was clearly filed too late. Husband contends that he was
mistaken in his original representation that there are no children
at issue. Rule 60(b) provides that “[o]n motion and upon such
terms as are just, the court may in the furtherance of justice

20130225-CA 20 2015 UT App 59
 Kielkowski v. Kielkowski

relieve a party . . . from a final judgment, order, or proceeding
for the following reasons: (1) mistake, inadvertence, surprise, or
excusable neglect.” Utah R. Civ. P. 60(b). There are, however,
strict time limitations for making such a motion: “The motion
shall be made within a reasonable time and for reasons (1), (2),
or (3), not more than 3 months after the judgment.” Id. (emphasis
added). The default decree here was entered on March 25, 2011,
and Husband initiated this action more than a year later—on
April 13, 2012. It was therefore not timely.

¶37 For these reasons, I would affirm the district court’s
denial of Husband’s petition.
____________

20130225-CA 21 2015 UT App 59