This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 74
IN THE
SUPREME COURT OF THE STATE OF UTAH
ADAM MACKLEY,
Appellant,
v.
ADRIENNE OPENSHAW,
Appellee.
COLTON BARNEY,
Appellee,
v.
ADAM MACKLEY and ADRIENNE BARNEY, 1
Appellant and Appellee.
No. 20170001
Heard February 22, 2019
Filed December 19, 2019
On Certification from the Court of Appeals
Fourth District, Provo
The Honorable Darold J. McDade
Nos. 114402136 and 134400322
Attorneys:
Julie J. Nelson, Eric G. Maxfield, Timothy M. Bagshaw,
Salt Lake City, for appellant Adam Mackley
Lorie D. Fowlke, Provo, Sara Pfrommer, North Salt Lake,
for appellee Adrienne Openshaw
Ron D. Wilkinson, Orem, for appellee Colton Barney
_____________________________________________________________
1 We list both cases that the court of appeals consolidated so that
all of the concerned parties are listed herein. We note that Adrienne
Openshaw and Adrienne Barney are the same person.
MACKLEY v. OPENSHAW
Opinion of the Court
JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUDGE HARRIS joined.
Having recused himself, JUSTICE PEARCE does not participate herein;
COURT OF APPEALS JUDGE RYAN M. HARRIS sat.
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 Adam Mackley conceived a child with Adrienne Openshaw
(Mother) while she was married to Colton Barney (Husband). Before
the child’s birth, Mackley filed a paternity petition in the district
court. Genetic testing, conducted after the child’s birth, established
that the child was Mackley’s biological daughter. Husband later
signed a voluntary denial of paternity, renouncing his paternity of
the child. Despite this, Mother subsequently moved to dismiss
Mackley’s petition, arguing that he lacked standing under the Utah
Uniform Parentage Act (UUPA) to challenge Husband’s presumed
paternity. Husband simultaneously commenced a separate action,
petitioning the district court to declare him to be the child’s legal
father. After extensive litigation in both cases, the district court
permitted Husband to rescind the denial on the basis of mutual and
unilateral mistake of fact. The court later granted Husband’s petition
for declaratory judgment, which ultimately resulted in the dismissal
of Mackley’s petition.
¶2 We are asked to determine, among other issues, whether the
district court erred (1) in allowing rescission of the denial and (2) in
holding that Mackley lacked standing to challenge Husband’s
presumed paternity of the child. 2
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2 Alternatively, Mackley contends that an interpretation of the
UUPA denying him standing violates his constitutional rights to due
process and equal protection. These same or similar arguments were
raised in several companion cases that we also issue today. See Castro
v. Lemus, 2019 UT 71, ¶¶ 53, 57, --- P.3d ---; Hinkle v. Jacobsen,
2019 UT
72, ¶ 19, --- P.3d ---; Olguin v. Anderton,
2019 UT 73, ¶ 18, --- P.3d ---.
In Castro, we hold that the UUPA grants standing to alleged fathers
to rebut the presumption of paternity.
2019 UT 71, ¶¶ 3, 12, 51, 61.
And because we adopt an interpretation of the UUPA that grants
(cont’d.)
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Opinion of the Court
¶3 We conclude that Husband should not have been permitted
to rescind the denial because any mistake went to the legal
consequences of signing the document, not the facts forming the
basis of it. The issue of Mackley’s standing is therefore moot. We
reverse and remand.
BACKGROUND
¶4 Mother and Husband married in August 2010. In early 2011,
Mother had a sexual relationship with Mackley and became
pregnant. Before learning of the pregnancy, Mother told Husband
about her relationship with Mackley and the couple separated.
Although Mother moved out of the marital home, the couple
remained married. When Mother subsequently discovered that she
was pregnant, she and Husband knew there was a possibility that
Mackley was the child’s biological father. Despite this, the couple
reconciled and worked to mend the marriage.
¶5 After learning of the pregnancy, Mackley began paying
prenatal child support to Mother. And he filed a paternity petition in
district court before the child was born. Mackley did not name or
serve Husband as a party in that case.
¶6 In her answer, Mother asked the district court to dismiss
Mackley’s petition, stating that she was “not sure who the father is
and [did] not remember telling [Mackley] that [the child] was his.”
Mother then asked the court to allow her and Husband to start their
family, declaring that Husband “kn[ew] the whole situation and
want[ed] to take full responsibility of the child regardless of DNA.”
But she noted that Mackley could take the legal steps to get a
paternity test if he wanted and that they would “go from there” if he
elected to do so.
¶7 The child was born in October 2011. Although present at the
birth, Husband was not listed on the child’s birth certificate.
¶8 After the child was born, Mackley requested that a paternity
test be conducted. Mother submitted herself and the child to genetic
testing. The test results established a 99.99 percent probability that
the child is Mackley’s biological daughter.
¶9 Soon after, Mother and Mackley stipulated to temporary
orders addressing, among other things, custody, parent-time, and
standing to alleged fathers, we need not address Mackley’s
constitutional challenges to a statutory interpretation that does not.
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MACKLEY v. OPENSHAW
Opinion of the Court
child support. Mackley began to exercise parent-time in December
2011. But increasing conflicts between Mother and Mackley over
parent-time and the child’s medical care soon strained the
relationship.
¶10 As part of the original stipulated temporary orders, Mother
had agreed to add Mackley as the father on the child’s birth
certificate. After some delay, Mackley repeatedly threatened to
initiate court proceedings against her if she did not comply with the
order. Mother eventually agreed to complete the necessary
paperwork. Mackley completed and signed the applicable portion of
a Voluntary Declaration of Paternity (declaration). 3 See UTAH CODE
§ 78B-15-302. He gave it to Mother, who took it with her to the Utah
County Health Department. Husband accompanied Mother to
provide emotional support.
¶11 At the health department, Mother signed the relevant
portion of the declaration, in which she affirmed that “[Mackley] is
the biological father of th[e] child” and that she was voluntarily
_____________________________________________________________
3 The UUPA provides that “The mother of a child and a man
claiming to be the genetic father of the child may sign a declaration
of paternity to establish the paternity of the child.” UTAH CODE
§ 78B-15-302(1). A man who establishes his paternity in this manner
is called a “declarant father.” § 78B-15-102(8). The declaration of
paternity must be signed, or otherwise authenticated, by both the
mother and the declarant father. Id. § 78B-15-302(1)(b). And if the
child has a presumed father, as here, the presumed father must sign,
or otherwise authenticate, a denial of paternity in order for the
declaration of paternity to be valid. Id. §§ 78B-15-302(3)(a), -303, -304.
When both are required, a declaration of paternity and a denial of
paternity must be contained in a single document, and neither is
valid until both are signed and filed according to statute. Id.
§ 78B-15-304(1). Once filed, a valid declaration of paternity “is
equivalent to a legal finding of paternity of a child and confers upon
the declarant father all of the rights and duties of a parent.” Id.
§ 78B-15-305(1). The declaration of paternity then becomes an
amendment to the child’s original birth certificate. See id.
§ 78B-15-302(7).
Here, there are some inconsistencies in the record regarding
when the parties signed the declaration and denial. However, it is
clear that Mother, Husband, and Mackley each signed the sections of
the form relevant to him or her as prescribed by law.
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Opinion of the Court
providing the information “to formally declare the paternity of their
child without obtaining a court order.” In addition, Mother affirmed
that she “ha[d] been provided verbal and written notice of the legal
consequences of and the alternatives to signing [the declaration].”
¶12 When an employee of the health department discovered
that Husband was married to Mother, he was asked to sign a portion
of the form. Husband had been unaware that he would be asked to
sign any documents, but he complied. He signed a section of the
form labeled in all capital letters: “DENIAL OF PATERNITY BY
PRESUMED FATHER.” 4 In doing so, Husband affirmed, under
penalty of perjury, “I am recognized as the ‘presumed father’[5]
under Utah Law; however . . . I am NOT THE BIOLOGICAL
FATHER OF THE CHILD ON PAGE ONE OF THIS
DOCUMENT.” (Emphasis in original.) Like Mother, Husband also
affirmed that he had “been provided verbal and written notice of the
legal consequences of and the alternatives to signing this form.”
Mackley was not informed that Mother had signed the declaration or
that Husband had signed the denial.
¶13 Several months later at a pretrial hearing, the district court
questioned why Mackley had not joined Husband in the case. Citing
court of appeals’ precedent, the district court reasoned that
Husband, the child’s presumed father, was likely an indispensable
party. The court then decided to continue the hearing to allow time
for the parties to investigate that issue.
_____________________________________________________________
4 The form the parties signed cites to an obsolete section of the
Utah Code. Utah Code section 78-45g-204 was renumbered as
section 78B-15-204 in 2008. The parties signed the form in 2012, but
the form still listed the old section number.
5 The denial includes a definition of “presumed father.” It states
that a man is presumed to be the father of a child if:
(a) he and the mother of the child are married to each
other and the child is born during the marriage;
(b) he and the mother of the child were married to each
other and the child is born within 300 days after the
marriage is terminated by death, annulment,
declaration of invalidity, or divorce or after a decree
of separation; [or]
(c) after the birth of the child, he and the mother of the
child married each other.
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MACKLEY v. OPENSHAW
Opinion of the Court
¶14 Mother subsequently moved to dismiss Mackley’s
paternity petition, arguing that he lacked standing to challenge the
child’s paternity under the UUPA 6 and that he had failed to join an
indispensable party, Husband, the child’s presumed father. In the
alternative, Mother asked the district court to determine that
Mackley lacked standing to assert his paternity of the child under the
common-law test adopted in In re J.W.F. (Schoolcraft), 799 P.2d 710
(Utah 1990).
¶15 That same week, Husband petitioned for declaratory
judgment in a separate case, asking the district court to declare that
he is the child’s legal father and that Mackley therefore has no
parental rights. In addition, Husband requested that the district
court order his name to be substituted for Mackley’s on the child’s
birth certificate, which would require Mackley to withdraw the
declaration. 7 Husband, Mother, and Mackley are all parties to
Husband’s case. Neither Mother’s motion to dismiss nor Husband’s
petition for declaratory judgment mentioned that she had signed the
declaration or that Husband had signed the denial.
¶16 The district court held a hearing for both cases. Because
Husband had never been joined as a party to Mackley’s case, the
court stayed Mackley’s paternity petition, pending resolution of
Husband’s petition for declaratory relief (the case to which Mother,
Husband, and Mackley were all parties). The court then orally
declared that Husband, as the presumed father, was the child’s legal
father and stated that its ruling would have res judicata effect on
Mackley’s case.
_____________________________________________________________
6 At the time Mother moved to dismiss Mackley’s petition for lack
of standing, the court of appeals had yet to issue its decision in R.P.
v. K.S.W., 2014 UT App 38,
320 P.3d 1084 (interpreting the UUPA to
deny standing to alleged fathers when the child is born during a
marriage and has a presumed father). Mother acknowledged that her
interpretation of the UUPA was an issue of first impression but
argued in favor of construing the statute to deny standing based on
the policy considerations outlined in In re J.W.F. (Schoolcraft),
799
P.2d 710 (Utah 1990).
7 See UTAH CODE § 78B-15-308(5) (“At the conclusion of a
proceeding to rescind or challenge a declaration of paternity or
denial of paternity, the tribunal shall order the Office of Vital
Records to amend the birth record of the child, if appropriate.”).
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Opinion of the Court
¶17 After that hearing, Mackley discovered, for the first time,
that Husband had signed the denial, which had the legal effect of
denying Husband’s presumed paternity of the child. Based on this
discovery, Mackley moved the district court for relief from judgment
under rule 60(b) of the Utah Rules of Civil Procedure, arguing,
among other things, that the denial constituted newly discovered
evidence.
¶18 Without addressing Mackley’s rule 60(b) motion, the
district court entered findings of fact, conclusions of law, and an
order of declaratory judgment in Husband’s case. The order
recognized Husband as the child’s legal father, determined that
Mackley had no parental rights, and ordered Husband’s name to be
substituted for Mackley’s on the child’s birth certificate and other
legal documents.
¶19 The district court subsequently dismissed Mackley’s
paternity petition. In doing so, the court struck the temporary orders,
determined that Mackley lacked standing to file a paternity petition,
and concluded that Husband was a necessary party who the court
had determined was the child’s legal father.
¶20 Mackley appealed the district court’s rulings. The court of
appeals then ordered the district court to hear and rule on Mackley’s
rule 60(b) motion. After conducting a hearing, the district court
granted Mackley’s motion for relief from judgment, ruling that the
denial constituted newly discovered evidence. The court thus
vacated both its order granting declaratory judgment in favor of
Husband and its dismissal of Mackley’s paternity petition.
¶21 Several days before the district court issued its written
order, Husband moved to rescind the denial. He argued that it
should be rescinded based on material mistakes of fact and duress.
After an evidentiary hearing, the district court granted Husband’s
motion to rescind on the basis of mutual and unilateral mistake of
fact. In particular, the court found that none of the parties were
aware that Husband would be required to sign the denial and all
three parties believed “the purpose of signing the form was to add
[Mackley] to the birth certificate” and that “[n]one of the parties
anticipated that signing the form would legally terminate
[Husband’s] parental rights as the presumed father.” In support, the
district court noted that the form does not indicate that by signing it,
the presumed father is terminating his rights to the child.
¶22 Mother and Husband then moved the district court to
reinstate its order for declaratory judgment in Husband’s case and
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Opinion of the Court
its order of dismissal in Mackley’s case. The court granted the
motions.
¶23 Mackley filed two notices of appeal with the court of
appeals. He first appealed the district court’s December 21, 2016
order of dismissal entered in his case. He then appealed two orders
entered in Husband’s case: the district court’s March 15, 2016 order
rescinding the denial and its October 22, 2016 order reinstating
declaratory judgment. On its own motion, the court of appeals
consolidated the cases. That court later certified the consolidated
case to us to resolve unsettled questions of constitutional law.
¶24 We exercise jurisdiction pursuant to Utah Code section
78A-3-102(3)(b).
STANDARD OF REVIEW
¶25 “The issue of mistake of fact involves factual
determinations and conclusions of law. We review factual
determinations for clear error and conclusions of law for
correctness.” Deep Creek Ranch, LLC v. Utah State Armory Bd., 2008 UT
3, ¶ 10,
178 P.3d 886.
ANALYSIS
I. MOTION TO STRIKE
¶26 Before addressing the merits of Mackley’s arguments, we
must resolve a motion to strike portions of Mackley’s replacement
brief filed by Husband and joined by Mother. In support, Husband
and Mother note that in his opening brief to the court of appeals,
Mackley did not include Husband on the caption or service list.
When Mother’s attorney asked why Husband’s attorney had not
been served a copy of the brief, Mackley responded by emailing one
to him. Mackley then moved to amend the caption page and
certificate of service, which the court of appeals granted. Husband
requested that the court of appeals vacate that order, arguing that
Mackley’s briefing contained more than “technical” errors because
Mackley had not attached the relevant order from Husband’s case.
According to Husband, this failure meant that Husband was not a
party to the appeal and that the requested amendments could not
cure that defect. The court denied Husband’s request to vacate its
prior order.
¶27 After the court of appeals certified the consolidated case to
us, we issued an order allowing the parties to submit replacement
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Opinion of the Court
briefs. All of the parties did so. 8 Mackley’s replacement brief
included Husband on the caption page and certificate of service. It
also attached the relevant orders from Husband’s case as addenda.
Husband and Mother acknowledge that Mackley corrected these
procedural errors in his replacement brief, but they argue that doing
so violated our replacement briefing order. That order stated that the
parties could elect to submit replacement briefs “if the posture before
the [s]upreme [c]ourt creates a material difference in the argument
presented.” It went on to explain that the order should “not be
construed to excuse compliance with otherwise-applicable principles
or rules of appellate review (e.g., preservation in the trial court).”
¶28 We conclude that Husband and Mother have failed to
demonstrate that they were prejudiced by any of Mackley’s alleged
errors. After Mother’s counsel asked why Husband’s counsel had
not been served a brief, Mackley emailed him a copy. Mackley then
moved the court of appeals to amend the caption and service list on
his original brief, which the court granted. After the case was
certified to this court, Mackley attached the relevant orders from
both cases as addenda to his replacement brief—orders that had
been included in the notice of appeal that Mackley filed in
Husband’s case.
¶29 Husband and Mother have not cited any rule or case law
that these procedural errors require striking Mackley’s replacement
brief. Indeed, the only case law they cite relates to reply, not
replacement, briefs. Yet the parties have not explained how the
issues presented in those cases are analogous to the one at hand. We
conclude that any alleged procedural errors have been rectified and
are thus harmless. Accordingly, we deny the motion to strike.
II. VOLUNTARY DENIAL OF PATERNITY
¶30 Mackley contends that the district court erred in allowing
Husband to rescind the denial under theories of mutual and
unilateral mistake of fact. Specifically, he argues that the mistake
cited by the district court was not a mistake of fact but rather a
mistake regarding the legal consequences of signing the declaration
and denial. We agree.
¶31 Relevant here, under the UUPA a presumed father may
move to rescind a voluntary denial of paternity by filing a rescission
document within sixty days after the effective date of the denial.
_____________________________________________________________
8 Mother filed a replacement brief, which Husband joined.
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Opinion of the Court
UTAH CODE § 78B-15-306(1)(a). “After the period for rescission under
Section 78B-15-306 has expired,” as occurred here, “a signatory of a
declaration of paternity or denial of paternity . . . may commence a
proceeding to challenge the declaration or denial only on the basis of
fraud, duress, or material mistake of fact.” Id. § 78B-15-307(1).
¶32 Husband moved to rescind the denial under theories of
duress and material mistake of fact. Without addressing duress, the
district court concluded that the denial should be rescinded due to
mutual and unilateral mistakes of fact.
¶33 A party seeking to rescind an agreement based on a mutual
mistake of fact must show, by clear and convincing evidence, that
“both parties, at the time of contracting, share[d] a misconception
about a basic assumption or vital fact upon which they based their
bargain.” Bergmann v. Bergmann, 2018 UT App 130, ¶ 14,
428 P.3d 89
(emphasis added) (citation omitted) (internal quotation marks
omitted); see also UTAH CODE § 78B-15-112 (“The standard of proof in
a trial to determine paternity is ‘by clear and convincing evidence.’”);
id. § 78B-15-307(2) (“A party challenging a declaration of paternity or
denial of paternity has the burden of proof.”). A mutual mistake
“can provide the basis for equitable rescission” of an agreement
“even when the contract appears on its face to be a ‘complete and
binding integrated agreement.’” Burningham v. Westgate Resorts, Ltd.,
2013 UT App 244, ¶ 12,
317 P.3d 445 (citation omitted).
¶34 As to mutual mistake, in its order granting Husband’s
motion to rescind the denial, the district court found that Mother,
Husband, and Mackley were all unaware that Husband would be
required to sign the denial. Furthermore, it found that they all
shared the mistaken belief that the purpose of signing the
declaration and denial was to add Mackley’s name to the child’s
birth certificate, not declare Mackley’s paternity of the child and
thereby terminate Husband’s legal rights as the presumed father.
According to the court, the parties were mistaken about the legal
consequences of signing the form because the form failed to clearly
state them and because Husband’s mistaken belief that he was
preserving his rights as the presumed father was reinforced by an
employee of the health department. The court thus determined that
none of the parties intended for the declaration and denial to have
the effect that they did.
¶35 In addition, the district court noted that permitting
Husband to terminate his fundamental rights to the child without
that waiver being knowing and intentional would be inconsistent
with Utah law. (Citing UTAH CODE § 78A-6-514(3).) The court then
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concluded that the circumstances surrounding the execution of the
denial demonstrated that Husband had not knowingly and
voluntarily waived his parental rights.
¶36 A party may also rescind an agreement based on unilateral
mistake of fact. To do so, the rescinding party must establish four
elements: (1) that the mistake is “of so grave a consequence” that it
would be “unconscionable” to enforce the contract as it was made;
(2) that the mistake was made as to a matter that “relate[s] to a
material feature of the contract”; (3) that the mistake “occurred
notwithstanding the exercise of ordinary diligence by the party
making the mistake”; and (4) that rescission will not “serious[ly]
prejudice” the other party other than “the loss of his bargain.” Briggs
v. Liddell, 699 P.2d 770, 773 (Utah 1985); see also John Call Eng’g, Inc. v.
Manti City Corp.,
743 P.2d 1205, 1209–10 (Utah 1987).
¶37 As to unilateral mistake, the district court determined that
despite exercising ordinary diligence of a person of his education
and experience, Husband was mistaken as to the legal consequences
of the denial. In so concluding, the court found that Husband was
not provided any verbal or written notice that signing the denial
would result in a relinquishment of his parental rights and that the
advice given by the health department employee had misled him.
Based on those circumstances, the court concluded that enforcing the
denial would be unconscionable and that rescinding it would not
result in prejudice to Mackley. Accordingly, the court granted
Husband’s motion to rescind.
¶38 We hold that the district court erred in allowing Husband
to rescind the denial because any mistake (mutual or unilateral)
related to the legal consequences of signing the form, not to any
underlying facts. The premise of both of these equitable rescission
doctrines is that they relate to mistakes of fact, not law. And under
Utah law, “each party has the burden to read and understand the
terms of a contract before he or she affixes his or her signature to it.
A party may not sign a contract and thereafter assert ignorance or
failure to read the contract as a defense.” John Call Eng’g, Inc., 743
P.2d at 1208.
¶39 This analysis applies here even though a voluntary
declaration of paternity is not a typical contract between two parties.
Here, the legal consequences of Husband signing the denial arise
both from the language on the form and from the Utah Code. The
UUPA provides that once executed and filed, a declaration of
paternity “is equivalent to a legal finding of paternity of a child and
confers upon the declarant father all of the rights and duties of a
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parent.” UTAH CODE § 78B-15-305(1). While we agree that the form
could be updated to clarify its contents and legal consequences to
signatories, 9 Husband had a duty to read and understand the form
he was signing. The form advises signatories that they should be
“provided verbal and written notice of the legal consequences of and
the alternatives to signing” the form. The court essentially found that
Husband did not understand the legal consequences of the denial or
its meaning under section 78B-15-305(1). But ignorance of controlling
law and the legal effect of signing the form are not mistakes of fact.
The sole mistake that seems factual is whether or not Husband
actually did receive that verbal or written notice from the health
department employee. But in signing the denial, Husband affirmed
that he had. If he had not received the notice, Husband had the
burden to inquire further or consult with legal counsel. He cannot
claim ignorance as to the legal consequences of signing the denial.
We therefore reverse Husband’s rescission of the denial and remand
to the district court.
III. STANDING
¶40 Mackley contends that the district court erred when it
denied him standing to challenge Husband’s presumed paternity
under the UUPA and the common-law Schoolcraft test. 10 However,
this issue is now moot. Because we conclude that the district court
erred in allowing Husband to rescind the denial, it remains in effect
and functions as the equivalent of “a legal finding of the
_____________________________________________________________
9 Our holding should not be construed as approval of the form
used in this case. Given the significant legal consequences to
signatories of a declaration and denial of paternity, we are
persuaded that efforts should be made to improve the clarity of the
form. For instance, even though the definition of “presumed father”
was not altered when the UUPA was renamed and renumbered, it is
concerning that the form had not been updated to reflect the correct
section of the statute.
10 Mother and Husband argue that although the district court
referenced Schoolcraft, it actually applied Utah Code section
78B-15-608, which they argue is modeled after the policy
considerations set out in Schoolcraft. We are not persuaded. It is clear
from the district court’s order that it was applying Schoolcraft, which
has been preempted by the UUPA. Accordingly, we conclude that
any reliance on the prior common-law test was erroneous.
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nonpaternity of the presumed . . . father,” see UTAH CODE
§ 78B-15-305(3), and, correspondingly, “establish[es] [Mackley’s]
paternity of the child” as the declarant father, see id.
§§ 78B-15-301, -302(1)(f).
¶41 However, we note that even if we were to conclude that the
denial was properly rescinded, Mackley would nevertheless have
standing. In a companion case that also issues today, Castro v. Lemus,
we hold that the UUPA grants standing to alleged fathers like
Mackley. 2019 UT 71, ¶¶3, 12, 51, 61, --- P.3d ---.
CONCLUSION
¶42 We conclude that the district court erred in allowing
Husband to rescind the denial under theories of mutual and
unilateral mistake of fact. Husband’s denial thus remains in effect.
Mackley’s argument regarding standing is moot, but we note that
our holding in Castro v. Lemus, 2019 UT 71, --- P.3d ---, which also
issues today, would confer standing upon him in the absence of the
denial. Accordingly, we vacate the order allowing for rescission and
remand to the district court for further proceedings consistent with
this opinion.
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