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In re Paternity of G.M.E.

Court of Appeals of Minnesota

December 23, 2013

In re the Paternity of: G. M. E.
Brian Paul Elliott, Appellant, Maria Elena Petrilak, petitioner, Respondent, and Ramsey County, intervenor, Respondent.


Ramsey County District Court File No. 62-FA-10-3324.

Maria Petrilak, Mechanicsburg, Pennsylvania (pro se respondent).

Michelle L. MacDonald, Athena V. Hollins, MacDonald Law Firm, LLC, West St. Paul, Minnesota (for appellant).

John J. Choi, Ramsey County Attorney, Richard J. Diffatte, Assistant County Attorney, St. Paul, Minnesota (for respondent).

Considered and decided by Rodenberg, Presiding Judge; Larkin, Judge; and Chutich, Judge.

LARKIN, Judge.

In this proceeding to establish paternity, child-custody rights, and an award of parenting time, appellant-father challenges the constitutionality of Minn. Stat. § 257.66 (2012). He also assigns error to certain district court rulings and its award of sole legal and physical custody to respondent-mother. Because appellant-father's constitutional challenge is not properly before this court on appeal, we do not address it. And because the district court did not abuse its discretion in its rulings or custody determination, we affirm.


Respondent Maria Elena Petrilak gave birth to a female child, G.M.E., on August 3, 2008. Petrilak was not married when the child was born. Appellant Brian Paul Elliott is listed as the child's biological father on the child's birth certificate. Elliott and Petrilak executed a voluntary recognition of parentage form, indicating that Elliott is the child's father. At all times since the child's conception, Elliott and Petrilak have acknowledged to family and friends that Elliott is the father of G.M.E.

Before the underlying paternity and custody action began, the parties and child resided together as a family. Petrilak decided to end her relationship with Elliott and to leave Minnesota. She made plans to move to Pennsylvania, with the parties' child, to be closer to her family and her new romantic interest.

On November 29, 2010, Petrilak initiated the underlying paternity action by service of a summons and petition on Elliott. Petrilak sought a judgment from the district court adjudicating Elliott the father of G.M.E., granting her legal and physical custody, granting Elliott supervised parenting time, and directing Elliott to pay child support.

On November 30, Elliott served an answer and counterpetition, asking the district court to adjudicate him the father of G.M.E, grant him sole legal and physical custody of the child subject to supervised parenting time with Petrilak, and award child support under the Minnesota Child Support Guidelines. He also petitioned the district court for an ex parte order granting him temporary sole custody of the child and precluding Petrilak from removing the child from the state. The district court granted the ex parte order on December 1. At a December 13 hearing, the district court vacated the order transferring custody to Elliott and awarded him temporary unsupervised parenting time pending the outcome of the case. Under the terms of the order, the parties had equal parenting time.

On April 5, 2011, the district court filed an order for temporary relief, which awarded Petrilak temporary sole legal and physical custody of the child. The order granted Elliott temporary parenting time but slightly reduced his parenting time to a little less than three days per week.

The case was tried to the court on March 27, March 28, and May 21, 2012. On September 17, the district court filed its findings of fact, conclusions of law, order for judgment and judgment awarding Petrilak sole legal and physical custody, authorizing Petrilak to immediately move G.M.E. to Pennsylvania, providing parenting time for Elliott, and ordering Elliott to pay child support.

On October 17, Elliott moved for amended findings or a new trial. In his posttrial submissions, he asserted, for the first time, "that Minn. Stat. § 257.66 (incorporating § 257.541, § 518 and § 518A) is unconstitutional as written and applied." Elliott's supporting memorandum set forth extensive arguments regarding the constitutionality of Minnesota's statutory scheme for determining the custodial rights of unmarried parents.

The district court heard oral argument on Elliott's motion on January 15, 2013. Elliott's attorney explained the breadth of his new constitutional challenge as follows:

[W]e are asserting the unconstitutionality of Minnesota Statutes 257.66 which is a judgment or order and I want to be clear that our claim as to the unconstitutionality of Minnesota Statutes 257.66 judgment order includes Minnesota Statutes 518 which is the marriage dissolution statute and Minnesota Statutes 518[A] which is the child support statute and 257.66 incorporates both of these statutes so I want to make it clear that we are asserting the unconstitutionality of the whole thing.

Elliott's attorney devoted her oral motion argument exclusively to the constitutionality of the statutory scheme, despite the district court's interruption and request that she address the detailed list of requested amendments included in Elliott's motion papers and the legal grounds for a new trial. The district court advised Elliott and his attorney that ...

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