2008AP2587 & 2009AP739 Dustardy H. v. Bethany H.

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Civil Procedure
Legal errors; subject matter jurisdiction

A court’s subject matter jurisdiction is not affected by its errors of law.
“Wisconsin’s artificial insemination statute creates a presumption that a husband whose wife is artificially inseminated with semen donated by another man is the ‘natural father’ of the child. Wis. Stat. § 891.40(1). For obvious reasons, a same-sex partner of the child’s biological mother can never receive the presumption of parenthood under § 891.40(1). The presumption operates only in favor of a male, as evidenced by the statute’s use of the words ‘husband’ and ‘father.’ Further, same-sex couples can never satisfy the marital relationship described by the statute. See Wis. Const. art. XIII, § 13 (‘Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.’). The circuit court’s most recent orders correctly conclude that it erred in 2004 by granting Dusty parental rights under § 891.40(1).”
“In Reading v. Reading, 268 Wis. 56, 60, 66 N.W.2d 753 (1954), our supreme court rejected an attempt to attack a divorce judgment more than six years after its entry, concluding that an erroneous determination of law or fact does not render a judgment void. And multiple cases decided under earlier versions of the relief-from-judgment statute have held that a court’s legal error does not provide a ground for relief. See Sikora v. Jursik, 38 Wis. 2d 305, 308-09, 156 N.W.2d 489 (1968); Gustin v. Coloma State Bank, 229 Wis. 475, 477-78, 282 N.W. 568 (1938).”

Reversed and Remanded.

Recommended for publication in the official reports.

2008AP2587 & 2009AP739 Dustardy H. v. Bethany H.

Dist. III, Outagamie County, Des Jardins, J., Brunner, J.

Attorneys: For Appellant: Hammett, William J., Neenah; Sturicz, Natalie M., Neenah; For Respondent: Healy, Kathleen M., Neenah

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