No. 14910
IN THE SUPREME COURT OF THE STATE OF MONTANA
LINDA SUTHERLAND AND BRIAN
ANDREW SUTHERLAND,
Plaintiffs and Appellants,
CHARLES HURIN, Jr.,
Defendant and Respondent.
Appeal from: District Court of the Eighth Judicial District,
Honorable H. William Coder, Judge presiding.
Counsel of Record:
For Appellants:
Dzivi, Conklin & Nybo, Great Falls, Montana
Richard Dzivi argued and Suzie Rebeck argued, Great
Falls, Montana
For Respondent:
Smith, Baillie and Walsh, Great Falls, Montana
Dennis Clark argued, Great Falls, Montana
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Submitted: January 15, 1980
Decided: FEB 6 - 1989
Filed: FEB 6 - 1980
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Linda and Brian Sutherland appeal from an order of
the Cascade County District Court, dismissing with prejudice
their paternity suit.
Linda Sutherland (hereafter mother) is the natural mother
of Brian Andrew Sutherland (hereafter child) who was born out
of wedlock on April 7, 1972. Mother and child brought this
action on May 24, 1978 against Charles Hurin, Jr., in order
to establish a father-child relationship between Hurin and
the child and to also require Hurin to support the child.
As an affirmative defense, Hurin contended the cause
was barred by the statute of limitations which he asserted
had run prior to July 1, 1975, the effective date of the
Uniform Parentage Act. The District Court requested the
issue be briefed and argued prior to trial. After briefing
and argument, the District Court entered its order dismissing
the claim of the mother and child on the basis that section
40-6-108, MCA, the statute of limitations in the Uniform
Parentage Act, revived a previously barred claim.
It is from this determination that mother and child
appeal, setting forth two issues for review:
(1) Prior to the adoption of the Uniform Parentage
Act, did section 27-2-401(1), MCA, apply to toll any statute
of limitation barring an illegitimate minor's right to bring
a paternity cause of action?
(2) Is it a denial of an illegitimate minor's right to
Equal Protection under the Fourteenth Amendment to the
United States Constitution to bar him from bringing a paternity
action, due to the running of the statute of limitations
during his minority?
We find the first issue dispositive of this case and reverse
the decision of the District Court.
At the time the present action commenced, the subsection
of the statute of limitations in the Uniform Parentage Act
establishing a time limitation on commencement o'f paternity
actions when the father-child relationship is not presumed by
statute, states:
". .. An action to determine the existence or
nonexistence of the father and child relation-
ship as to a child who has no presumed father
under 40-6-105 may not be brought later than 3
years after the birth of the child or later than
(3) years after the effective date of this act,
[July 1, 19781 whichever is later. . . Section .
61-308, R.C.M. 1947, now sectio40-6-108(3), MCA.
The District Court determined that this section "revived"
a claim which had previously been barred by the running of
the statute of limitations. We disagree.
Prior to the enactment of the Uniform Parentage Act
on July 1, 1975, there existed no specific statute of limitations
relating to paternity actions. Although the District Court
does not designate which statute of limitations under our
codes had previously foreclosed a paternity action in the
present case, we find that it makes no difference to our
decision in this case.
What does matter in this case is the failure of
Hurin to recognize the statute which tolls the running
of time for limitations. The pertinent statute is section
27-2-401(1), MCA, which provides:
"When person entitled to bring action is under
a disability. (1) 1 f a person entitled to
bring an action mentioned in part 2,. . . is,
at the time the cause of action accrues,. . .
a minor, the time of such disability is not a
part of the time limited for commencing the action.
However, the time so limited cannot be extended
more than 5 years by any such disability except
minority or, in any case, more than 1 year after
the disability ceases."
In effect this statute created a 19 year statute of limitations
in which a child could have instituted filiation proceedings
prior to July 1, 1975, the effective date of section 40-6-
108 (3), MCA.
As a result, the District Court erred in dismissing
appellant's paternity action on the basis that section 40-6-
108(3), MCA, improperly "revived" a previously barred claim.
The child's action was never barred by the running of a
statute of limitations. Therefore, his cause was alive and
filed within the permissible time.
Hurin poses a further argument asserting that this
first issue was not presented to the District Court and
cannot be considered by this Court on appeal. We find that
this argument also fails. The record discloses that this
issue was raised in appellant's supplemental memorandum
which was filed with the District Court and as such is part
of the record on this appeal. Rule 9, M.R.App.Civ.P.
As to there being a cause of action on behalf of
the mother, this Court recognizes that authority does
exist on which a mother may seek recovery in the absence
of a specific statute of limitation on paternity actions.
See generally, Annot., 59 A.L.R.3d 685 (1974). However, we
find it unnecessary to address specifically this question since
the child has a viable cause of action.
Appellant points out that the child is not represented
by a guardian ad litem in the action. His lack of capacity
to sue is a matter of affirmative defense, which must be raised
by a responsive pleading. Rule 8, M.R.Civ.P. Once the issue
is raised, the court will order the appointment of a guardian
ad litem, Rule 17(c), M.R.Civ.P, if he is not otherwise
represented. He may also sue by his next friend. Rule 17 (c),
M.R.Civ.P.
Accordingly, t h e o r d e r of t h e D i s t r i c t Court i s
r e v e r s e d and t h e c a u s e remanded f o r f u r t h e r p r o c e e d i n g s .
W e Concur:
Chief J u s t i c e
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