NO. 33-60
IN THE SUPREME COURT OF THE STATE OF MONTANA
1983
LN THE MATTER OF
W.C.,
Petitioner and Appellant,
and
E.L.S.B.C., Natural Mother ot
T.M.B., Putative Minor,
and
R. J.B.,
Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Oleson Law Firm; James Oleson argued, Kalispell,
Montana
Baldassin, Connell & Beers, Missoula, Montana
For Respondent:
Jonkel & Kemmis; Daniel Kernmis argued, Missoula,
Montana
Thomas Poullot, Dept. of Revenue, Helena, Montana
Constitutionality-Hon. Mike Greely, Attorney General,
- -
Helena, Montana
-
Submitted: September 16, 1983
~ecided
: November 2, 1983
Filed: -
NOV 2 1983
--
Clerk
Mr. Justice L.C. Gulbrandson delivered the Opinion of the
Court.
Petitioner appeals from a dismissal of his action by
the District Court of the Fourth Judicial District, Missoula
County.
Erna (E.L.S.B.C.), natural mother of Tara (T.M.B), and
Rodger (R.J.B), the respondent, were married on January 23,
1976. Tara was born on June 22, 1976, five months following
the marriage of respondent and Erna. Respondent was
identified as Tara's father on her birth certificate.
On May 24, 1979, a divorce decree was entered
dissolving the marriage of Erna and the respondent. The
final decree stated that Tara was a child born of the
parties' marriage. The decree ordered respondent to provide
child support and allowed him visitation rights.
In June, 1982, the petitioner-appellant, Wallace
(W-c.) I married Erna. On July 21, 1982,
petitioner-appellant filed an action in Lake County to
determine the parentage of Tara. The petition contained the
results of an HLA blood test stating that the probability of
parentage of appellant to Tara was 99.77 percent. On
September 15, 1982, the case was transferred to Missoula
County. The District Court dismissed the petition on
December 1 5I 1982, on the basis that the
petitioner-appellant was barred by the five-year statute of
limitations, Section 40-6-108(1)(b), MCA, from challenging
the presumed father and child relationship between
respondent and Tara. Appellant now argues that the District
Court erred in dismissing his petition.
~ n i t i a l l y , appellant asserts that the five-year
statute of limitations contained in Section 40-6-108(1)(b),
MCA, has been rendered unconstitutional by the United States
Supreme Court's decisions in Mills v. Habluetzel (1982),
456 U.S. 91, 71 L.Ed.2d 770, and Pickett v. Brown (1983),
U.S. , 76 L.Ed.2d 372.
In Mills, the Court struck down Texas' one-year
statute of limitations in an action for child support on
behalf of an illegitimate child. The decision was based
upon equal protection considerations. The Court held that
the one-year statute of limitations was unconstitutional
because it made it more difficult for illegitimates to
obtain child support than for legitimates to obtain support.
In Pickett, the Court struck down a Tennessee statute that
required paternity and support actions to be filed within
two years unless the child was a public charge.
The deprivation of equality by governmental
classification that was present in Mills and Pickett is
absent in the case at bar. In Mills, the Court held that
illegitimate children were denied equality because their
right to bring an action for support was more restricted
than for legitimate children. Thus, the Court determined
the extent to which the right of illegitimate children to
support recognized in Gomez v. Perez (1973), 409 U.S. 535,
35 L.Ed.2d 56, may be circumscribed by a state's interest in
avoiding prosecution of stale or fraudulent claims.
Similarily, in Pickett, the Court relied heavily on its
decision in Mills. The Pickett Court stated:
"Much of what was said in the opinion in
Mills is relevant here, and the
principles discussed in Mills require us
to invalidate this limitations period on
equal protection grounds.
"Although Tennessee grants illegitimate
children a right to paternal support . .
. and provides a mechanism for enforcing
that right . . .the imposition of a
two-year period within which a paternity
suit must be brought ...restricts the
right of certain illegitimate children to
paternal support in a way that the
identical right of legitimate children is
not restricted. In this respect, some
illegitimate children in Tennessee are
treated differently from, and less
favorably than, legitimate children."
In the present case we are not considering the
constitutionality of a statute of limitations that would bar
an illegitimate child's right to support. The child herein
involved is not illegitimate because respondent has been
presumed to be the father in accordance with Section
40-6-105(1)(a), MCA. In addition, the action is not being
brought on behalf of the minor child and there is no
allegation the child is being denied support. The Montana
statutes at issue in this case are not unconstitutional
under Mills or Pickett because they do not differentiate
between legitimate and illegitimate children. Section
40-6-107(1), MCA. The invidious discrimination discussed in
Mills and Pickett is not present here. Indeed, the Montana
statute does not discriminate in any way against the
appellant. Section 40-6-108 states:
"(1) An action may be commenced:
(b) for the purpose of declaring the
...
nonexistence of the father and child
relationship presumed under subsection
(a), (b), or (c) of 40-6-105(1), only if
the action is brought within a reasonable
time after obtaining knowledge of
relevant facts, but not later than 5
years after the child's birth."
In short, Mills and Pickett are not controlling and do not
render Section 40-6-108(1)(b), MCA, unconstitutional.
Likewise, the District Court did not err in relying on
our decision in Borchers v. McCarter (1979), 181 Mont. 169,
I
592 P.2d 941, when it dismissed the appellant's petition.
The appellant argues that Mills and Pickett, along with our
decision in State Dept. of Revenue v. Wilson (Mont. 1981),
634 P.2d 172, 38 St.Rep. 1299, overruled our decision in
Borchers.
In Borchers, a petition was filed more than five years
after a child's birth to have someone other than the
presumed father declared the father. The District Court
granted the petition and we reversed on appeal holding that
a person wishing to establish a parent-child relationship
between a child and a nonpresumed person must first rebutt
the presumption of another's paternity and Section
40-6-108(1)(b), MCA, was a bar to an action to rebutt the
presumption. Similarily, in the present case, the District
Court held that Section 40-6-108(1)(b), MCA, barred
appellant's petition challenging the presumed father-child
relationship.
In Wilson, the issue before us was whether the
three-year statute of limitations on the determination of
paternity in Section 40-6-108(3), MCA, violated the equal
protection clause of the Fourteenth Amendment of the United
States Constitution and Article 11, Section 4, of the
Montana Constitution. Section 40-6-108(3), MCA, provides,
"An action to determine the existence or nonexistence of the
father and child relationship as to a child who has no
presumed father under 40-6-105 may not be brought later than
three years after the birth of the child." In affirming the
District Court's decision, we held that the statute was
valid as against the state but unconstitutional as to an
action brought for support on behalf of an illegitimate
child. Specifically, the statute was held unconstitutional
because illegitimate children would be discriminated against
in the bringing of actions for support. Since Borchers did
not concern an action brought by an illegitimate child for
support or the statute of limitations provided in Section
40-6-108(3), MCA, Wilson does not overrule Borchers. Thus,
the District Court properly relied upon our decision in
Borchers to dismiss appellant's action.
The appellant also argues that his cause of action is
actually subject to a nineteen-year statute of limitations
pursuant to our decision in Sutherland v. Hurin (Mont.
1980), 605 P.2d 1133, 37 St.Rep. 183. However, the
Sutherland decision is inapplicable to this case. In
Sutherland we held that children born before the July 1,
1975 effective date of the Montana Uniform Parentage Act
have a nineteen-year statute of limitations for paternity
actions. The child involved in this action is presumed
legitimate so the case does not apply.
Appellant further contends that the five-year statute
of limitations provided in Section 40-6-108(1)(b), MCA, is
inapplicable to appellant because he is actually subject to
the provisions of Section 40-6-105(1)(e), MCA. Appellant
asserts that Section 40-6-105(1)(e), MCA, is not controlled
by a statute of limitations and he is subject to the
provisions of that section because he acknowledged his
alleged paternity of Tara to the District Court. Section
40-6-105 provides:
"(1) A man is presumed to be the natural
father of a child if:
"(a) he and the child's natural mother
are or have been married to each other
and the child is born during the
marriage. ..
"(e) he acknowledges his paternity of
the child in a writing filed with ...
the district court of the county where he
resides, which court or department shall
promptly inform the mother of the filing
of the acknowledgment, and she does not
dispute the acknowledgment within a
reasonable time after being informed
thereof, in a writing filed with. . .
the district court of the county were the
acknowledgment was filed. If another man
is presumed under this section to be the
child's father, acknowledgment may be
-----------
effected only with the written consent of
................................ r t h e
the presumed father or afte
presumption has been rebutted. (emphasis
added )
A careful reading of this section indicates that appellant's
assertion is incorrect. Since respondent is the presumed
father and has not given his written consent to appellant's
assertions, appellant must first rebutt the presumption that
respondent is the presumed father before any written
acknowledgment of paternity would be effective. Thus,
appellant is again barred by the five-year statute of
limitation on actions challenging the presumption of
paternity. Section 40-6-108(1)(b), MCA.
Finally, appellant asserts that the State of Montana
has "confessed error" in the ruling of the District Court
that Section 40-6-108(1)(b), MCA, is constitutional.
Specifically, appellant argues that because the Attorney
General of Montana failed to appear and argue against
appellant's constitutional challenge, the State of Montana
has admitted the District Court erred in relying upon the
statute.
In all the cases appellant cites as authority for this
argument the confession of error rule was applied to an
opposing party who did not respond to a particular issue on
appeal. Respondent's brief in the present action has
clearly addressed the consitutional challenge to Section
40-6-108(1)(b), MCA.
The Attorney General does not have a duty to appear in
every action concerning the constitutionality of a statute.
Rule 38, f4.R.App.Civ.P. requires a party challenging the
constitutionality of a statute to give the Attorney General
notice of the challenge but Rule 38 has never been
interpreted as meaning the State of Montana has an absolute
duty to appear whenever a challenge arises. Rather, the
purpose of Rule 38 is to give the Attorney General the
opportunity to defend the acts of the Nontana legislature.
Gilbert v. Gilbert (1975), 166 Mont. 312, 533 P.2d 1079;
Clontz v. Clontz (1975), 166 Mont. 206, 531 P.2d 1003; Grant
v. Grant (1975), 166 Mont. 229, 531 P.2d 1007.
We find no reversible error and, therefore, affirm the
decision of the District Court.
We concur:
~ a ~ ~ , $ l g ! ~ ~ ~ ~
Chief Justice
i ,
1 / GL .~*4.
,
~ d n . 'Diane G. B a r z , ~ i s t f i c X u d a e .
t
s i t t i n g i n p l a c e of Mr. $ ~ s t i c & ' ~
F r a n k B. M o r r i s o n J r . \
-
+.
\ )