concurring in part, dissenting in part.
I concur in the holding of the majority that appellant is not entitled to indemnity or contribution for child support, and I agree that respondent is not entitled to recover attorney fees.
I respectfully dissent on the issue of the summary judgment granted to respondents under Minn.Stat. § 548.14 (1984). I would reverse and remand to the trial court with instructions to appoint a guardian ad litem for T.C., and allow appellant to develop with evidence and litigate on the merits, not of vacation of the dissolution judgment. Minn.Stat. § 548.14 (1984). I find that there is a genuine and material fact issue which is in dispute, namely whether or not there was a fraud upon the court by a prevailing party, and whether or not appellant had such knowledge of the fraud that he is estopped from now claiming it.
I would also instruct the guardian ad litem to consider the propriety of terminating appellant’s parental rights. There is no present time limit bar to that action, and if appellant’s parental rights to T.C. were terminated, T.C.’s mother and Blue Earth County would have the option of commencing paternity action under Minn.Stat. § 257.58 (1985) against anyone that they reasonably believed was the real father.
We have a fact situation where the statutory presumption of the paternity of a child born during wedlock must be set aside in the best interests of T.C. Paternity cases are normally clouded in smoke, suspicion, claims of sexual relations, and counter claims of infidelity with others. Here, for a change, we have an absolute, appellant is not the father of T.C.
*581Those engaged in the area of paternity law, including courts, doctors, and lawyers, agree on one thing. Although blood tests can never, with absolute medical certainty, determine who is the father, blood tests can, with absolute medical certainty, determine who is not. It is uncontroverted that an established medical center in this area, Memorial Blood Center of Minneapolis, conclusively established through their testing procedures that appellant Robert Clay is not the father of T.C. There is a letter in the file dated January 29, 1986, stating that. The signature is that of H.F. Pole-sky, M.D., Memorial Center’s director, a respected physician practicing in this field. Over the past several years, Memorial Blood Center’s tests have dragged many a putative father kicking and screaming to the altar of child support. Their medical expertise now ought to be available to untie the parent/child relationship between appellant and T.C. which rests not on reality, but on a piece of paper.
What we have in this case is the legal system handing five-year old T.C. a piece of paper which states that appellant is his father. T.C.’s mother knows that is not true. All the court personnel associated with the case know that is not true. The Blue Earth County Attorney’s office knows that is not true. All friends and relatives who have knowledge of the facts know that is not true. The judiciary handing T.C. that piece of paper knows that is not true, and, in a few short years when T.C. can comprehend things, he will know that the court system gave him a piece of paper which is not true. This is hardly a situation to foster T.C.’s belief in the integrity of our legal system.
The majority acknowledges these concerns but states that it can find no legal vehicle to afford relief. The majority takes the position that Minn.Stat. § 548.14 is not available to appellant since Minn.Stat. § 257.57, subd. 1(b) is presumptive in an action to disestablish paternity, whether the claim is fraudulent or not.
Minn.Stat. § 548.14 states in pertinent part:
Any judgment obtained in a court of record by means of perjury, subornation of perjury, or any fraudulent act, practice, or representation of the prevailing party, may be set aside in an action brought for that purpose by the aggrieved party in the same judicial district within three years after the discovery by him of such perjury or fraud.
A fraud on the court exists:
[wjhere a court is misled as to material circumstances, or its process if abused, resulting in the rendition of a judgment which would not have been given if the whole conduct of the case had been fair.
Matter of Welfare of C.R.B., 384 N.W.2d 576, 579 (Minn.Ct.App.1986) {pet. for rev. denied (Minn. May 29, 1986) (quoting Halloran v. Blue & White Liberty Cab Co., 253 Minn. 436, 442, 92 N.W.2d 794, 798 (1958).
On this set of facts, which strongly dictates a call for relief, I cannot interpret Minn.Stat. § 548.14 so literally as to preclude relief. If § 548.14 applies, appellant has time to reopen as he is easily within the three-year “after the discovery by him of such perjury or fraud.” The discovery of the “material circumstances” was made only a few months ago in January 1986. Surely the trial court granting the original dissolution would not have rendered a judgment that appellant was T.C.’s father if the existence of the blood test results were known.
I find that summary judgment was inappropriate as there is a disputed material fact issue. The dispute centers around just how much appellant really knew prior to his dissolution that T.C. was not his child, and thus the issue existed as to whether he or Ullrich, or both, committed a fraudulent act or participated in a fraudulent representation. I would not preclude appellant just on the basis of a motion for summary judgment from attempting to show that there was a fraudulent representation and that he was an aggrieved party. Appellant never really did “know” until January 1986 that he was not the father of T.C. A father, any father, whether in wedlock or out of wedlock, can only “guess, suspect, *582have a belief, or have a strong belief” that he is not the father of a given child. A father never “knows” that he is not the father of a given child unless competent blood tests are done. Although appellant may well have suspected prior to the dissolution that he may not have been T.C.’s father, it should not be held against him that he sat on those suspicions until he was positive. The issue of just what did appellant know prior to the dissolution of a marriage is in dispute. The record discloses that appellant may have believed or suspected that he was the father, but appellant contends that he did not conclusively know until after the blood tests. Whether or not appellant’s knowledge precluded him from utilizing Minn.Stat. § 518.14 should not have been tried in a motion for summary judgment.
The position of respondent Blue Earth County is that all that needs to be said and done has been said and done, and that all summary judgments against appellant should be affirmed. Blue Earth County’s involvement in this case is monetary, and does not accord with T.C.'s best interests. Blue Earth County knows that appellant is not T.C.’s father. Blue Earth County knows that T.C.’s mother may have some evidence as to who is. Blue Earth County is simply here arguing for affirmance because, having advanced welfare payments to T.C.’s mother and having gained a judgment against appellant, it wishes to collect back support monies from him even though it has proof he is not really T.C.’s father. Its arguments for affirmance are based on res judicata and the statute of limitations. Its position is legal, but hardly a base from which to construct a marble monument to equity.
I note in the file a June 18, 1985, trial court order stating “that in order to protect the rights of the minor child, T.C., a guardian ad litem be appointed to represent said child in any further proceedings.” Whoever was responsible for that appointment never followed through. Appellant, on December 23, 1985, again moved the court for an appointment of a guardian ad litem for T.C. to represent his interests during further pendency of the action. The court denied that motion on February 28, 1986. With the disputed fact issue as to what point in time appellant knew for sure that he was not T.C.'s father, it was even more paramount that T.C.'s interests be protected by a guardian ad litem. The denial of that appointment when it is such an important fact issue in dispute constitutes sufficient grounds for a remand, an apointment of a guardian ad litem, and a hearing on the merits.
It is clear that none of the listed parties genuinely have T.C.’s best interests in mind. Appellant seeks to get out of fatherhood, has begrudgingly paid minimal support, and has exhibited absolutely no desire to assist in the nuturing and raising of T.C. as his adoptive or foster parent. Respondent Augustin’s interests are certainly adversarial. Blue Earth County’s interest is monetary. T.C.’s mother has, up until now, not gone to court to establish paternity of the person she believes may be the father, but has been content to allow Blue Earth County to pursue support payments from appellant.
While the issue of termination of appellant’s parental rights is not before us, and thus cannot be decided by this opinion, the record supports the determination that a guardian ad litem should explore this avenue in T.C.’s best interests. A guardian ad litem is an absolute must in this case to represent T.C.’s rights. The child’s paramount interest and right to a proper child/parent relationship cannot be downplayed. Fewer state protected interests are more compelling.
I easily envision in T.C.’s future confusion, tears, and embarrassment from having, in one hand, a piece of paper from the courts which says that appellant is his father, and having in his other hand a piece of paper from a respected medical center which positively establishes that appellant is not.
A properly appointed guardian ad litem for T.C. could explore termination of appellant’s parental rights. That would leave open to T.C.’s mother and Blue Earth County under Minn.Stat. § 257.58 the *583right, if they truly are concerned for T.C.’s best interests, to pursue a paternity action against any person that the evidence so warrants.
Should T.C.’s mother and Blue Earth County elect not to pursue a paternity action, it may never be that Minnesota courts can tell T.C. who his real father is. But then we ought not to be in the business of solemnly telling T.C. that his father is someone that we know for certain is not.
I would reverse and remand to the trial court with instructions that appellant has brought to the court’s attention, within three years of discovery, sufficient facts to justify reopening the dissolution decree under Minn.Stat. § 548.14. I do not find, as the majority does, that Minn.Stat. § 257.57 preempts a trial court from finding a fraud upon the court if the action under § 548.14 is timely (started within three years after the discovery of the fraud), although not necessarily timely under § 257.57 (action must be brought within three years of child’s birth).
The majority basis part of its reasoning on the general statement that there is a clear public policy1 promoting the legitimacy of children, and the majority then reasons from that general premise that on these facts the least detrimental alternative is to assure for T.C. “whatever stability his continuing legitimacy may bring.” I respectfully disagree. There is no stability in T.C.’s parentage now, as the world knows his paper father is not his real father, his mother has told many whom she suspects is his real father, and his mother and Blue Earth County have done nothing about that. I also find no “continuing legitimacy” for T.C. since there is nothing legitimate about calling something black that is concededly white, or stating that grass is blue when it is concededly green.
I would direct the trial court to reopen this case for a hearing on the merits, appoint a guardian ad litem for T.C. so that the child, who should be the real focus of this case, is properly protected, and I would direct that termination of appellant’s parental rights, together with any other legal avenues designed to further T.C.’s best interests, be explored.
I appreciate the majority opinion that a finality to court actions is desirable. I normally agree with that. This is not a normal .case. Logic and common sense lend themselves to a decision to send this matter back to the trial court one more time. Concededly, another walk, however short, through the red tape and fine print of paternity laws may be painful to T.C. and his mother, but it cannot be as painful to him as our doing nothing.
. I do not find that what the majority calls “a clear public policy”, i.e. the statutes addressing legitimacy, are all that clear. For instance, under Minn.Stat. § 257.57, subd. 1(a), there is never a statute of limitations on bringing an action to declare the existence of a father and child relationship under certain conditions. Under Minn.Stat. § 257.57, subd. 2, there is never a statute of limitations on an action to determine the existence or nonexistence of a father and child relationship if certain conditions exist. Under Minn.Stat. § 257.58, the determination of a father and child relationship can be brought up until the child is 19 (one year after reaching majority), depending on the circumstances. Under Minn.Stat. § 257.57, subd. 1(b), on which the majority relies, actions are limited to within three years of the child’s birth. All of the statutes and subdivisions I have just recited refer to the existence or nonexistence of the father/child relationship. Yet, depending on such varied and subjective circumstances as whether or not the child’s mother is on welfare, whether or not the alleged father and mother attempted a marriage that was later declared void or invalid, whether or not the man’s name appears on the birth certificate, or whether or not the father openly holds out a minor child as his child and takes him into his home, the statute of limitations may run from a low of three years to a high of forever.
If the establishment of parentage is important, then the disestablishment of parentage, when it is an accepted fact as here, is equally important for they speak to the same thing.
I also concur with the majority that appellant did not timely and properly raise the constitutional issue of lack of due process as it applied to him, i.e. just a short time of three years for him to disestablish parentage, but up to nineteen years or a lifetime for others to establish his parentage, but the issue is there.