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Limberg v. Mitchell

Court of Appeals of Minnesota

July 15, 2013

Rebecca Lynn Limberg, petitioner, Respondent,
v.
Brian Bruce Mitchell, Appellant. State of Arizona ex rel., petitioner, Respondent,

Hennepin County District Court File No. 27-PA-FA-10-943

Michael O. Freeman, Hennepin County Attorney, Sandra G. Filardo, Assistant County Attorney, Minneapolis, Minnesota (for respondent State of Arizona)

Rebecca Lynn Limberg, Mesa, Arizona (pro se respondent)

Tifanne E. E. Wolter, St. Paul, Minnesota (for appellant)

Considered and decided by Cleary, Presiding Judge; Hooten, Judge; and Huspeni, Judge. [*]

SYLLABUS

In determining whether a presumed father's evidence is sufficient to withstand a summary judgment motion in a paternity action, the court shall consider such evidence in light of the clear and convincing evidentiary burden of proof set forth in Minn. Stat. § 257.62, subd. 5(b) (2012).

OPINION

HOOTEN, Judge

Appellant challenges the district court's order granting summary judgment and adjudicating him father of a minor child, arguing that the district court erred by applying the statutory clear and convincing standard as his burden of proof to rebut the presumption of paternity and by failing to consider evidence of other possible fathers not joined in the paternity action. We affirm.

FACTS

Appellant Brian Bruce Mitchell challenges the district court's order and judgment adjudicating him father of a minor child born on August 6, 2008. In 2010, the state of Minnesota filed a uniform support petition on behalf of the state of Arizona seeking to establish paternity and child support, as well as an accompanying motion requesting adjudication of appellant as the minor child's father or requiring him to submit to genetic testing. In his answer, appellant denied the allegations in the state's petition and denied "having any sexual intercourse with [respondent] during any possible time that would result in the pregnancy of [respondent] and the birth of" the minor child. The state of Minnesota eventually filed a motion seeking adjudication of appellant as the child's father in light of the results of genetic testing indicating that there was a 99.99% likelihood that appellant was the father.

In response to the state's interrogatories, appellant admitted that he first met the minor child's mother, respondent Rebecca Lynn Limberg, in May or June 2006 at a wedding, and that they spoke on the telephone a few times and exchanged text messages. Appellant admitted that after the wedding, he saw respondent on two more occasions during the fall of 2007.

On the first occasion during early October, respondent came to appellant's home, arriving late at night. Appellant asserted that he was on anti-depressant medication at the time and that, "at certain times, " the medication made him "completely disinterested in sex" and episodically impotent. He stated that he and respondent "talked for a time and eventually fell asleep in the same bed with our clothes on." He recalled that when he awoke, feeling more groggy than usual, he realized that respondent, with her hand on his genitals, was trying to sexually arouse him. He claimed that he asked her to stop because he was not interested in a physical relationship with respondent and was concerned about the effects of his anti-depressant.

Appellant then described a second contact with respondent during early November when he visited her new apartment late in the evening or early morning. Appellant asserted that he "discovered" that respondent was menstruating heavily, and she offered to perform oral sex. He claimed, however, that he was not responsive to the oral sex in that he was not able "to get totally erect or climax." He asserts that he has not seen her since that meeting. ...


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