A.P. v. State, Department of Health & Human Services, Division of Public Assistance & Social Services, ex rel. B.L.S.

CARDINE, Justice. This appeal is from a judgment and order declaring AP the natural father of the child (BLS); against AP and in favor of the Department of Family Services (DFS) in the amount of $2,646.03 for Aid to Families with Dependent Children and medical care provided on behalf of his child BLS which AP is to repay at the rate of $25.00 per month; requiring AP to pay child support of $100.00 to $300.00 per month, depending on the level of his income, such child support payments to continue until BLS is emancipated. The question here presented is whether the procedure followed in the district court was adequate to guard the interests of the appellant (AP). We affirm. AP did not present a formal statement of the issues in his brief. We perceive, nevertheless, the issue presented to be his claim that he was prejudiced by the failure of the district court to strictly adhere to statutorily required procedures. The appellee, State of Wyoming, contends that AP failed to carry his burden of establishing prejudicial error. A complaint was filed by DFS on October 22, 1990, seeking to establish AP as the natural father of BLS and to require past and future support for the child. AP answered on January 30, 1991, denying the gravamen of that complaint. By order entered on February 15, 1991, the district court appointed counsel, at the expense of DFS, to represent AP. By order entered on March 18, 1991, the district court appointed a guardian ad litem for BLS, directed genetic testing of AP to determine the probability of his being the father of BLS, and scheduled an informal hearing for April 17, 1991. The record does not reflect [704] whether that informal hearing ever took place. On September 20, 1991, the attorney appointed to represent AP asked to withdraw asserting that his representation of AP had been rendered unreasonably difficult by AP and that AP had fired him. The district court did not enter an order permitting counsel to withdraw. The record reflects that AP’s counsel wrote to AP on September 17, 1991, and informed AP that the genetic testing established that the probability of his being the father of BLS was 99.96 percent certain. He advised AP that his choices were: 1. Visitation and child support (easy to achieve); or 2. Custody of [BLS] (very difficult to obtain). AP's response, filed in the record on September 20, 1991, was cast in fairly strong language: I wager that I absolutely have no possibility of accomplishing success with you for my attorney. To the very best of my knowledge you have seriously weakened my case. I should not have to babysit my attorney, and hold his hand to make sure that things get done. I was counting on you to pursue and to follow threw [sic], I realize that at times “things get pretty hectic.” Things are going to get a hell of a lot more hectic. I could not count on you in the past — what will happen in the future.... I do not know why an attorney would intimidate the State’s Officials for something totally out of the state[’]s control. It was not right, and I certainly did not appreciate the letter I received from one of them of which was indirectly detrimental to my character. On more than one occasion you have screwed up my case, a case that was once very strongly fortified. Moreover, your poor advice draws me to believe that you are clearly not looking out for my best interest. In fact you disclosed confidential information to the plaintiff that will most likely lead my case into default. Furthermore, it is not my intention to be represented as a discourteous anal-tentative rectal-section; I do not want to come across to The Judge that way, at all. I insist that you file motion for a sufficiently competent replacement attorney — immediately, before you further impede your personal liability. If you do not file the motion: I will; I will word things appropriately; you will have one hell of a lot of explaining to do. By order entered on October 7, 1991, the district court set the matter for hearing to be held on October 30, 1991. On October 28, 1991, the attorney for DFS stipulated that the guardian ad litem could withdraw as attorney for BLS. On October 30, 1991, the guardian ad litem filed a motion to withdraw. The district court did not grant the motion for AP’s attorney to withdraw, nor did it grant the motion for the guardian ad litem to withdraw. On the contrary, the district court went ahead with the hearing scheduled for October 30, 1991. AP did not appear at that hearing, and the district court entered default in favor of DFS. AP asked to be relieved of that default because he had failed to appear due to a “calendaring problem,” i.e., he had calendared the hearing for October 31, 1991, rather than for October 30, 1991. In addition, he claimed he did not know that the October 30, 1991 hearing could potentially be dis-positive of the litigation in this matter. On April 14, 1992, the district court entered a judgment and order declaring AP to be the natural father of BLS; entered judgment against him and in favor of DFS in the amount of $2,646.03, to be paid in $25.00 per month installments; and requiring payment of child support of not less than $100.00 nor more than $300.00 per month. Wyoming statutes establish the procedural requirements for a matter such as this. DFS may bring an action as was done here to determine the existence of the father child relationship with respect to a child who has no presumed father. W.S. 14-2-104 (Supp.1992). This action was filed by DFS within the statute of limitations. W.S. 14-2-105 (Supp.1992). Wyo [705] ming Statute 14-2-107 (1986) further provides: The child shall be made a party to the action. If he is a minor he shall be represented by his guardian or a guardian ad litem appointed by the court. The child’s mother or father may not represent the child as guardian or otherwise. The natural mother, each man presumed to be the natural father under W.S. 14-2-102 and each man alleged to be the natural father may be made parties and shall be given notice of the action in a manner prescribed by the court and an opportunity to be heard. The court may align the parties. All of these procedural requirements were followed. All matters determined by the district court were authorized by the statutes. W.S. 14-2-106 (1986) and W.S. 14-2-113 (1986 and Supp.1992). Counsel was appointed for AP as required by W.S. 14-2-116 (Supp.1992). We are well aware that failure to adhere to the procedural requirements of these statutes may cause a judgment rendered under them to be void. Matter of TLB, 771 P.2d 811 (Wyo.1989). This case did slip into disarray when AP wrote the September 20, 1991 letter to his attorney and then failed to appear at the hearing scheduled by the district court. Nonetheless, we are comfortable that AP had notice of the hearing, an opportunity to be heard, and was accorded the process due under all the circumstances of this case. That he was not heard is attributable only to himself. The result achieved was appropriate. The district court did not err, under the circumstances of this case, in entering default against AP, nor did it abuse its discretion in refusing AP relief from that default. See Throndset v. L.L.S., 485 N.W.2d 775 (N.D.1992); Mendocino County on Behalf of Bartlow v. Ted S., 217 Cal.App.3d 1202, 266 Cal.Rptr. 452 (1990); County of Hennepin v. Brinkman, 378 N.W.2d 790 (Minn.1985); Thomas v. Fey, 376 N.W.2d 266 (Minn.App.1985); State v. Beauchamp, 473 So.2d 323 (La.App.1985); 14 C.J.S. Children Out-of-Wedlock § 121 (1991). The judgment of the district court is affirmed. URBIGKIT, J. (Retired), files a dissenting opinion.