State ex rel. Department of Social Services ex rel. Dotson v. Serr

HENDERSON, Justice (on reassignment).

Meryl D. Serr (Serr), now of Gregory, South Dakota, appeals from an amended judgment of paternity and order of support based upon the trial court’s retroactive application of SDCL 25-8-9. Once again, this Court is being asked if a cause of action previously barred by a statute of limitations, can be revived through subsequent legislation. Based upon our decision in State of Minnesota ex rel. Hove v. Doese, 501 N.W.2d 366 (S.D.1993), we reverse.

PROCEDURAL HISTORY/FACTS

On June 6, 1978, Gail Dotson (Dotson) gave birth to a son in Pennsylvania. Now, some thirteen years later, she alleges that Serr is the father, based upon a sexual relationship the two had in Nevada prior to 1978, and seeks child support. Serr left Nevada in December, 1977, and had no contact with Dotson until 1989 or 1990 when she made the revelation via a letter and photograph of the child.

On December 6, 1989, Dotson began to receive Aid to Dependent Children in Pennsylvania and applied for child support services pursuant to Pennsylvania’s Revised Uniform Reciprocal Enforcement of Support Act. See 23 Pa.Cons.Stat.Ann. §§ 4501-4540 (1991). Ex parte, the Court of Common Pleas of Erie County, Pennsylvania, found that Dotson had set forth facts from which it could be determined that Serr owed a duty of support. The certificate of facts and certified copies of Dotson’s complaint and paternity petition were forwarded to South Dakota’s Department of Social Services and the Gregory County Clerk of Courts.

Pursuant to SDCL ch. 25-9A, the Revised Reciprocal Enforcement of Support Act, and SDCL ch. 25-8, Paternity Proceedings, the State of South Dakota, on behalf of Dotson and her son, initiated an action in Gregory County, thirteen years after the child’s birth, to establish Serr’s paternity and to compel his support. Serr made a special appearance and filed a motion to dismiss which alleged, in part, that the action was barred by this state’s statute of limitations.

When Dotson’s son was born in 1978, SDCL 25-8-9 provided:

Proceedings to enforce the obligation of the father shall not be brought after the lapse of more than two years from the birth of the child, unless paternity has been judicially established, or has been acknowledged by the father in writing or by the furnishing of support.

Serr contended that under the facts of this case a cause of action for paternity became barred in June 1980.

Between the birth of Dotson’s son and the commencement of this action, however, SDCL 25-8-9 underwent revision three times. In 1983, SDCL 25-8-9 was amended to read:

Proceedings to enforce the obligation of the father may not be brought after the lapse of more than six years from the birth of the child, unless paternity has been judicially established, or has been acknowledged by the father in writing or by the furnishing of support.

1983 S.D.Sess.L. ch. 207, § 2.

In 1986, the amendment to SDCL 25-8-9 provided:

Proceedings to establish paternity and enforce the obligation of the father may be brought at any time prior to the eighteenth birthday of the child. The provisions of this section apply to all children who have been born since July 1, 1968.

1986 S.D.Sess.L. ch. 218, § 57.

At the time this action was instituted, the legislature had deleted that portion of SDCL 25-8-9 which applied its provisions to all children born since July 1, 1968. SDCL 25-8-9 provided:

Proceedings to establish paternity and enforce the obligation of the father may be brought at any time before the eighteenth birthday of the child.

1989 S.D.Sess.L. ch. 222. The trial court concluded that the 1989 amendment to SDCL 25-8-9 controlled and had retroactive effect. Consequently, it denied Serr’s motion to dismiss.

*423Serr subsequently denied paternity and alleged as an affirmative defense that the statute of limitations barred any cause of action for paternity or support. The trial court entered findings of fact and conclusions of law and concluded that Serr was the biological father of Dotson’s son and owed a duty of support. Also, the trial court held that “[t]he statute of limitations is not applicable to [Serr] as an affirmative defense.”

ISSUE

DOES THE 1989 AMENDMENT TO SDCL 25-8-9 HAVE RETROACTIVE EFFECT?

DECISION

Serr contends that the statute of limitations found in SDCL 25-8-9, as it existed in 1978, controls and barred any action for paternity and support after June 6, 1980. The issue of whether the 1989 amendment to SDCL 25-8-9 has retroactive application was exhaustively reviewed in our recent decision in Hove, supra. We held that it does not have retroactive application. In so holding, we pointedly mentioned that SDCL 2-14-21 clearly states that no part of the code “shall be construed as retroactive unless such intention plainly appears.” As we previously expressed in Hove at 368, “In 1986, such intention did plainly appear as: ‘[t]he provisions of this section apply to all children who have been born since July 1,1968.’ Yet, this language was removed from the 1989 version of SDCL 25-8-9, and with it any plain intention of retroactivity.”

In addition, we noted that because statutes of limitation affect substantive rights they are not given retroactive effect. According to courts addressing the issue, legislation attempting to revive previously time-barred claims impermissibly interferes with a defendant’s vested rights and violates due process. The purpose of statutes of limitations is speedy and fair adjudication of the parties’ respective rights. The allowance of a retroactive limitation period would make this purpose meaningless.

We note that Dotson raised United States Supreme Court authorities not discussed in Hove.* Both Chase Securities Corp. v. Donaldson, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945), and Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983), reviewed retroactivity of statutes; however, neither decision revived a cause of action previously barred. Moreover, Pickett held that the interested parties did not have adequate time to obtain child support. We do not face such an assertion here. Rather, thirteen years after the birth of her son, Dotson only seeks retroactive application of a barred claim. Authorities she now cites do not necessitate such a broad proposition. For these reasons and the rationale discussed in that opinion, we adhere to our decision in Hove. Consequently, Dotson’s cause of action is barred.

Reversed.

MILLER, C.J., and AMUNDSON, J., concur. WUEST and SABERS, JJ., dissent.

Dotson did not specifically raise any constitutional issues on her own behalf. However, her brief discussed several U.S. Supreme Court decisions concerning Equal Protection and paterniiy/stat-ute of limitation issues, all of which have been distinguished by this writing and our reliance upon and discussion in Hove.