### Filed 1/15/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2019 ND 16

S.E.L., Plaintiff and Appellant

v.
J.A.P., J.M., Defendants

and

State of NorthDakota, Statutory Real Party in Interest and Appellee

No. 20180075

Appeal from the District Court of Stark County, Southwest Judic ial District, the Honorable Rhonda R. Ehlis, Judge.

AFFIRMED.
Opinion of the Court by McEvers, Justice

. Theresa L. Kellington , Bismarck, ND, for plaintiff and appellant.

Sheila K. Keller (argued) and Steven G. Podoll (on brief), Bismarck, ND, and Brittney A. Bornemann(on brief), Assistant State’s Attorney, Dickinson, ND, for Statutory Real Party in Interest and Appellee.S.E.L. v. J.A.P.
No. 20180075

McEvers, Justice. [¶1] S.E.L. appeals from an order dismissing his action seeking to adjudicate the paternity of the child, J.J.M. We conclude the district court did not err in concluding S.E.L.’s action was barred by N.D.C.C. § 14-20-44(2). We affirm.

I [¶2] On April 24, 2014, the child was born to the biological mother, J.A.P. Shortly after the child’s birth, J.A.P. and J.M. executed an acknowledg ment of paternity, claiming J.M. was the child’s father. [¶3] In September 2016, S.E.L. filed a complaint challenging pat ernity, alleging the paternity acknowledgment was ex ecuted based on fraud and deceit , and requesting the court order genetic testing and declare he is the child’s fathe r. S.E.L. filed an affidavit in support of his complaint, stating he was in a sexu al relationship with J.A.P. in Montana during the period of conception, J.A.P. moved to North Dakota after the child was conceived and entered into a relationship w ith J.M., J.A.P. never informed S.E.L. she was pregnant, and he learned about the chil d in the fall of 2015. He stated he attempted to establish paternity by filing paperwo rk with the Child Support Enforcement Division in Montana, but he learned that J. M. signed an acknowledgment of paternity on or around April 24, 2014. S.E.L . admitted it had been more than two years since the acknowledgment of paternity was signed, but he claimed the acknowledgment was based on fraud and deceit and sh ould be declared void. S.E.L. also alleged the child had been removed from J.A. P. and J.M.’s care and placed in a foster home in February 2016, J.A.P. was to be rele ased from jail in Nevada in August 2016, and J.M. was currently incarcerated in N orth Dakota.

1[¶4] The State, through Stark County Social Services, was served with the summons and complaint by mail. The State , through the Southwest Area C hild Support Unit, answered and argued the claim was barred by the applicable stat ute of limitations and S.E.L. failed to state a claim upon which relief could be grant ed. [¶5] On January 24, 2017, S.E.L. moved for genetic testing, requ esting the district court order genetic testing to determine whether he is the chil d’s father. On February 23, 2017, the district court denied S.E.L.’s motion. The court explained that no party who was served with the motion responded to the motion, and the child is in the custody of the State but Stark County Social Services was not s erved with the motion. The court also explained J.M. is the child’s acknowledged fathe r and S.E.L. is unable to ask for genetic testing because he did not request testing w ithin two years of the execution of the acknowledgment of paternity. [¶6] On May 8, 2017, S.E.L. filed a pretrial brief. He argued the Uniform Parentage Act, N.D.C.C. ch. 14- 20, should not apply to his case . He also claimed a proceeding seeking to disprove the father-child relationship be tween a child and the child’s presumed father may be maintained at any time, no statu te of limitations exists to prevent genetic testing, and genetic testing is authorized under provisions of the Uniform Parentage Act. [¶7] On May 15, 2017, the State, through the Stark County State’ s Attorney’s Office, answered S.E.L.’s complaint, stating it did not object to genetic testing. The State also argued S.E.L. failed to sufficiently serve all parti es and his claim was beyond the applicable statute of limitations for a paternity ac tion. [¶8] On June 9, 2017, the district court entered an order appoin ting a guardian ad
litem for the child and to allow genetic testing. On July 17, 2 017, the State, through the child support unit, moved for reconsideration of the order. The State argued the court had already denied the first motion for genetic testing and no relevant facts changed after that decision, and there was no motion to vacate or reconsider that prior
order. The State also asserted there was no indication J.A.P. had ever been served, genetic testing could be refused under the Uniform Parentage Ac t if there was an

2untimely challenge to an acknowledgment of paternity, and a cha llenge to the acknowledged paternity is untimely in this case. S.E.L. oppose d the State’s motion. [¶9] After a hearing, the district court ordered S.E.L.’s actio n be dismissed. The
court found J.A.P. and J.M. were in default. The court held S. E.L. commenced the proceeding more than two years after the effective date of the paternity acknowledgment, challenges to an acknowledgment of paternity mu st be commenced within two years after the effective date of the acknowledgment under N.D.C.C. § 14- 20-44(2), and S.E.L. was not permitted to challenge the acknowl edgment because his action was untimely. The court ru led all other issues pending before the court were moot and required no further adjudication because the matter wa s dismissed. Judgment was entered.

II [¶10] S.E.L. argues the Uniform Parentage Act, N.D.C.C. ch. 14-2 0, should not be applied in the “very unusual” circumstances of this case. He c laims there is a “very high probability” that he is the child’s biological father, the child is currently in foster care, and the “presumed father” and biological mother do not have a relationship with the child. He contends the purpose of the Act is to protect bi ological fathers from interfering with formed relationships years after the fact and that purpose does not
exist in this case. [¶11] The interpretation of a sta tute is a question of law, whic h is fully reviewable on appeal. D.E. v. K.F. , 2012 ND 253, ¶ 7 , 825 N.W.2d 832. In interpreting a statute, words are given their plain, ordinary, and commonly understood meaning, unless they are specifically defined or contrary intention plainly appears. N.D.C.C. § 1-02-02. “Statutes are interpreted to give effect to all of their provis ions, and no part of the statute is rendered inoperative or superfluous.” Altru Specialty Servs., Inc. v. N.D. Dep’t of Human Servs. , 2017 ND 270, ¶ 10 , 903 N.W.2d 721; see also N.D.C.C. § 1- 02-38(2) and (4). “When the wording of a statute is clear and free of all ambiguity,

3the letter of it is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. [¶12] Chapter 14-20, N.D.C.C., applies to determine parentage inNorth Dakota. N.D.C.C. § 14-20-03. Section 14-20-04, N.D.C.C., authorizes th e district court to adjudicate parentage under Chapter 14-20. Section 14-20-36, N. D.C.C., authorizes a civil proceeding to adjudicate the parentage of a child. [¶13] An “acknowledged” father is defined as “a man who has established a fatherchild relationship under sections 14-20-11 through 14-20-24.” N.D.C.C. § 14-20- 02(1). Section 14-20-11, N.D.C.C., authorizes a mother of a ch ild and a man claiming to be the child’s genetic father to sign an acknowledgment of p aternity with the intent to establish the man’s paternity. A valid acknowledgment of pa ternity filed with the state health department is equivalent to an adjudication of pat ernity and confers upon the acknowledged father all of the rights and duties of a paren t. N.D.C.C. § 14-20-15. “If a child has an acknowledged fa ther . . . , an individual, o ther than the child, who is neither a signatory to the acknowledgment of a paternity . . . and who seeks an adjudication of paternity of the child must commence a proceedi ng not later than two years after the effective date of the acknowledgment[.]” N.D.C .C. § 14-20-44(2). [¶14] Chapter 14-20, N.D.C.C., applies to determinations of pare ntage. The district court found J.M. is an acknowledged father. S.E.L. is attempti ng to challenge the acknowledged paternity and to adjudicate his paternity, and the chapter contains provisions governing this type of proceeding. We conclude N.D. C.C. ch. 14-20 applies.

III [¶15] S.E.L. argues the district court erred in dismissing his a ction and finding it was untimely. [¶16] The court dismissed S.E.L.’s action, stating: Plaintiff [S.E.L.] commenced this proceeding to challenge the paternity acknowledgment signed by Defendants [J.A.P. and J.M]

4outside the timeframe of two years after the effective date of the paternity acknowledgment as established in N.D.C.C. § 14-20-44( 2).

. . . . Because Plaintiff [S.E.L.] commenced this proceeding more than two years after the effective date of the subject paternity acknowledgment, he is not permitted to pursue a challenge of su ch acknowledgment. This action is dismissed pursuant to N.D.C.C. § 14-20-44.

A [¶17] S.E.L. contends N.D.C.C. § 14-20-41 allows a proceeding to adjudicate parentage at any time. He claims N.D.C.C. § 14-20-41 applies i n this case. [¶18] Section 14-20-41, N.D.C.C., states: A proceeding to adjudicate the parentage of a child having no presumed, acknowledged, or adjudicated father may be commenced at any time, even after: 1. The child becomes an adult, but only if the child initiates the proceeding; or 2. An earlier proceeding to adjudicate paternity has been dismissed based on the application of a statute of limitation then in effect. Under N.D.C.C. § 14-20-41, there is no limitation on the time t o commence a proceeding to adjudicate parentage if the child has no presumed , acknowledged, or adjudicated father. The district court found J.M. signed an ac knowledgment of paternity, and S.E.L. does not argue the court’s finding is cle arly erroneous. Because the child has an acknowledged father, N.D.C.C. § 14-20-41 does not apply.

B [¶19] S.E.L. contends the district court erred in applying N.D.C .C. § 14-20-42 to conclude his claim was untimely. [¶20] Section 14-20-42, N.D.C.C., places limitations on proceedi ngs to adjudicate the parentage of a child having a “presumed father.” A man is a “presumed father” if any of the conditions under N.D.C.C. § 14-20-10 are met, inc luding when a man is married to the mother of the child and the child is born during the marriage, or when

5the man resides in the same household as the child for the firs t two years of the child’s life and openly holds the child as his own. A paternity presum ption established by N.D.C.C. § 14-20-10 “may be rebutted only by an adjudication un der sections 14-20- 36 through 14-20-58.” N.D.C.C. § 14-20-10(2). When a child ha s a presumed father, a proceeding to adjudicate the parentage of the child must be c ommenced not later than two years after the child’s birth, but a proceeding to dis prove the father-child relationship may also be maintained “at any time” if the presum ed father and child’s mother neither cohabited nor engaged in sexual intercourse witheach other during the probable time of conception and the presumed father never openl y held out the child as his own. N.D.C.C. § 14-20-42; see also D.E. , 2012 ND 253, ¶ 11 , 825 N.W.2d
832. [¶21] Here, the district court found the child had an acknowledg ed father and concluded S.E.L.’s action to adjudicate the child’s parentage w as precluded under N.D.C.C. § 14-20-44, which applies to proceedings to adjudicate the paternity of a child who has an acknowledged father. The court did not apply N.D.C.C. § 14-20-42, and we conclude it does not apply because the child does not have a “presumed
father.” [¶22] An acknowledged father is different from a presumed father and different statutes provide limitations on actions challenging an acknowle dged father’s paternity. Section 14-20-44(2), N.D.C.C., provides limitations on adjudications of paternity for a child who has an acknowledged father, stating: If a child has an acknowledged father or an adjudicated father, an individual, other than the child, who is neither a signatory to the acknowledgment of a paternity nor a party to the adjudication and who seeks an adjudication of paternity of the child must commence a proceeding not later than two years after the effective date of the acknowledgment or adjudication. Under the plain language of the statute, a person seeking adjud ication of paternity who is not a signatory to the acknowledgment must commence a pr oceeding not later than two years after the effective date of the acknowledgment.

6[¶23] The district court found and S.E.L. conceded in his compla int that he commenced the proceeding to cha llenge the paternity acknowledgm ent more than two years after the effective date of the acknowledgment. Neither o f the parties addressed the issue of whether N.D.C.C. § 14-20-44(2) is a statute of lim itation or a statute or repose. We assume without deciding N.D.C.C. § 14-20-44(2) is astatute of limitation. S.E.L. does not argue on appeal that principles of estoppel apply or that the statute was tolled for any reason. Because S.E.L. commence d this action more than two years after the effective date of the acknowledgment, based on the arguments made, his claim was barred under the statute. [¶24] S.E.L. argues this case is very similar to D.E. , 2012 ND 253, 825 N.W.2d 832,
and this Court should look at our decision in D.E. for guidance in deciding this case.
In D.E. , at ¶ 1 , the child was an orphan, her mo ther and presumed father were dead, and no one claimed custody through either parent. The alleged father brought a proceeding under N.D.C.C. ch. 14-20 against the “private foster parents” the child was residing with, alleging he was the child’s biological fathe r. D.E. , at ¶ 3 . The alleged father requested the court order a paternity test and award him sole residential responsibility for the child. Id. The “private foster parents” moved to dismiss the proceeding arguing the statute of limitations, N.D.C.C. § 14-20 -42, barred the alleged
father’s action. D.E. , at ¶ 3 . The district court concluded the alleged father’s request was time-barred under N.D.C.C. § 14-20-42 because the child had a presumed father and the alleged father failed to establish an exception to the two-year statute of
limitations. D.E.
, at ¶ 4

. [¶25] On appeal, this Court considered N.D.C.C. ch. 14-20, notedthere was a twoyear statute of limitations for proceedings to disprove a presumed father’s relationship with the child, but also noted a proceeding may be maintained “ at any time” if the
court finds both stated conditi ons are met under N.D.C.C. § 14- 20-42(2)(a) and (b).
D.E. , 2012 ND 253, ¶ 11 , 825 N.W.2d 832. This Court said the party relying on a statute of limitations has the burden of proving the action is barred. Id. at ¶ 11 . A statute of limitations defense is a personal privilege and onlythe person for whose

7benefit the statute inures or someone standing in that person’s place may take advantage of it. Id. at ¶ 13 . Section 14-20-37, N.D.C.C., provides a list of entities with standing to maintain a proceeding to adjudicate parentage and that list also designated potential “intended beneficiaries” of the statutes. D.E. , at ¶ 16 . We held the “private foster parents” were not intended beneficiaries of the statute of limitations defense and were not proper parties to raise the defense. Id. at ¶ 19 . We reversed the district court’s decision dismissing the case and remanded for additional proceedings and for appointment of a guardian ad litem. Id. at ¶ 23

. [¶26] This case is distinguishable from D.E. In D.E.
, 2012 ND 253, ¶ 19 , 825 N.W.2d 832, the party alleging the statute of limitations barre d the alleged father’s action was not an “intended beneficiary” of the statute of limi tations defense and therefore was not a proper party to raise the defense. Here, the State raised the statute of limitations defense and S.E.L. did not argue the State was n ot an intended beneficiary of the defense. Although S.E.L. attempted to raise the issue on appeal during oral argument, we generally do not consider arguments ra ised for the first time at oral argument. Rath v. Rath , 2017 ND 138, ¶ 16 , 895 N.W.2d 315. [¶27] Also, the statutory provisions that limit proceedings whenthere is an acknowledged father are different from those that apply to a pr esumed father. This
Court did not determine whether the statute of limitations woul d preclude the alleged
father’s action in D.E. if the defense had been properly raised. Section 14-20-42, N.D.C.C., allows an action to challenge a presumed father’s pat ernity at any time under certain circumstances. The statutory limitation on actio ns to challenge an acknowledged father’s paternity does not include similar langua ge. This case is
different from D.E. , and D.E. does not guide the outcome of this case. [¶28] The child has an acknowledged father, and S.E.L. did not c ommence this action within two years of the effective date of the acknowledg ment of paternity. S.E.L.’s action was not timely. We conclude the district court did not err in dismissing S.E.L.’s case under N.D.C.C. § 14-20-44(2).

8C [¶29] S.E.L. also argues the court erred by failing to order gen etic testing under either N.D.C.C. §§ 14-20-26 or 14-20-43. [¶30] In a June 12, 2017 order, the district court ordered S.E.L ., the child, and J.M. to provide genetic samples for genetic testing. The State move d the court to reconsider its order. S.E.L. moved for an order to show cause, requesting the State be held in contempt for failing to allow him to schedule an app ointment to take samples for genetic testing. In its order dismissing S.E.L.’s action, the court stated all other issues before the court, including the order for gene tic testing, are moot
because the matter was dismissed. [¶31] Section 14-20-26, N.D.C.C., authorizes the district court to order genetic testing, stating: 1. Except as otherwise provided in sections 14-20-25 through 14-20-58, the court shall order the child and other designated individuals to submit to genetic testing if the request for tes ting is supported by the sworn statement of a party to the proceedin g: a. Alleging paternity and stating facts establishing a reasonable probability of the requisite sexual contact between the individuals; or b. Denying paternity and stating facts establishing a possibility that sexual contact between the individuals, if any, did not result in the conception of the child. 2. A support enforcement agency may order genetic testing only i f there is no presumed, acknowledged, or adjudicated father. [¶32] The plain language of N.D.C.C. § 14-20-26 states the district court shall order testing except as provided in sections 14-20-25 through 14-20-5 8. Section 14-20- 44(2), N.D.C.C., limits the court’s authority to order testing under N.D.C.C. § 14-20- 26 when the time limit for bringing an action to adjudicate the paternity of a child who has an acknowledged father has expired. The official comme nt to the corresponding section of the Uniform Parentage Act (2000) suppo rts our interpretation. “When w e interpret and apply provisions in a uniform law, we may look to official editorial board comments for guidance.” Matter of Bradley K. Brakke
Trust , 2017 ND 34, ¶ 12 , 890 N.W.2d 549; see also N.D.C.C. § 14-20-66 (stating in

9applying and interpreting N.D.C.C. ch. 14-20, “consideration mu st be given to the need to promote uniformity of the law with respect to its subje ct matter among states that enact it”). Section 502 of the Uniform Parentage Act is the corresponding section to N.D.C.C. § 14-20-26. The official comment to section 502 st ates, “the right of the court to order testing is not absolute; §§ 607-609 place limitations on genetic testing if the child has a presumed, acknowledged, or adjudicated fathe r.” Unif. Parentage Act § 502 (2000), comment. We conclude genetic testing was not authorized under N.D.C.C. § 14-20-26 under the facts and circumstances of this c ase. [¶33] S.E.L. also contends the district court failed to apply N. D.C.C. § 14-20-43 and order genetic testing. Section 14-20-43, N.D.C.C., provides th e court authority to deny a motion for genetic testing, stating: 1. In a proceeding to adjudicate th e parentage of a child having a presumed father or to challenge the paternity of a child having an acknowledged father, the court may deny a motion seeking an order for genetic testing of the mother, the child, and the presumed or acknowledged father if the court determines that: a. The conduct of the mother or the presumed or acknowledged father estops that party from denying parentage; and b. It would be inequitable to disprove the father-child relationship between the child and the presumed or acknowledged father. 2. In determining whether to deny a motion seeking an order for genetic testing under this section, the court shall consider th e best interest of the child, including the following factors: a. The length of time between the proceeding to adjudicate parentage and the time that the presumed or acknowledged father was placed on notice that he might not be the genetic father; b. The length of time during which the presumed or acknowledged father has assumed the role of father of the child; c. The facts surrounding the presumed or acknowledged father’s discovery of his possible nonpaternity; d. The nature of the relationship between the child and the presumed or acknowledged father; e. The age of the child;

10f. The harm that may result to the child if presumed or acknowledged paternity is successfully disproved; g. The nature of the relationship between the child and any alleged father; h. The extent to which the passage of time reduces the chances of establishing the paternity of another man and a child support obligation in favor of the child; and i. Other factors that may affect the qualities arising from the disruption of the father-c hild relationship between the child and the presumed or acknowledged father or the chance of other harm to the child. 3. In a proceeding involving the application of this section, a minor or incapacitated child must be represented by a guardian ad litem. 4. Denial of a motion seeking an order for genetic testing must be based on clear and convincing evidence. 5. If the court denies a motion seeking an order for genetic tes ting, it shall issue an order adjudicating the presumed or acknowledged father to be the father of the child. The plain language of N.D.C.C. § 14-20-43 states the district c ourt may deny a motion seeking an order for genetic testing in a proceeding to challenge the paternity of a child having an acknowledged father if the court makes cer tain findings. [¶34] In this case, the district court ordered genetic testing, but later dismissed the action because the action was barred by the statute of limitati ons and ruled the order for testing was moot. Because S.E.L. did not commence these pr oceedings to adjudicate paternity and challenge the acknowledgment of patern ity within two years of the effective date of the acknowledgment of paternity, the c ourt properly dismissed the action. There is no pending pr oceeding to challenge the pa ternity of the acknowledged father. To the extent the district court had disc retion to order genetic testing under N.D.C.C. § 14-20-43, the court did not err by rul ing the order for testing was moot when it properly concluded the statute of limitations barred S.E.L.’s action.

IV [¶35] We affirm the order dismissing S.E.L.’s paternity action. [¶36] Lisa Fair McEvers Daniel J. Crothers
11Jerod E. Tufte Jon J. Jensen Gerald W. VandeWalle, C.J.

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