No. 90-172
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF ARIZONA, KATHLEEN
ROSE SANCIPRIAN, and JERRY
D. COOK, Guardian ad litem
for JULIET MARGARITE ROSE,
a minor child,
Petitioners and Respondents,
ALAN DOUGLAS SASSE,
Respondent and Appellant.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Dawson,
The Honorable Dale Cox, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kathleen M. Fritsch argued, Glendive, Montana
For Respondent:
Ann Hefenieder argued, Department of Social and
Rehabilitation Services, Child Support Enforcement
Division, Billings, Montana (State of Arizona)
Jerry D. Cook, Glendive, Montana (guardian ad litem
for the child)
Submitted: September 9, 1990
~ecided: November 27, 1990
Filed:
I
u
Clerk
L
, #
Justice John C. Sheehy delivered the Opinion of the Court.
In this case, Alan Douglas Sasse maintains that the five-year
statute of limitations contained in 9 40-6-108 (1)(b), MCA, bars the
court from declaring that he is the natural father of Juliet
Margarite Rose, a minor child. The District Court, Seventh
Judicial District, Dawson County, rejected Sasse's statute of
limitations claim and entered judgment declaring him to be the
natural father of Juliet Margarite Rose. From that judgment, Sasse
appeals. We affirm the District Court.
The minor child, Juliet Margarite Rose, was born in New Jersey
on June 21, 1975. At the time of the child's conception and birth,
Kathleen was married to Stelios Kazantzoglou. The mother,
Kathleen, had married Stelios in 1971, but was living apart from
Stelios and working in Tennessee. At that time, Sasse, age 17, was
in the Armed Services and stationed in Tennessee. He frequented
the cafe where Kathleen worked and sometime in August or September
of 1974, Kathleen invited Alan to her home which resulted in one
instance of sexual intercourse. Shortly thereafter, Sasse was
transferred to another station.
Kathleen and Stelios divorced in September, 1976, in West
Virginia. The court there found that the parties had not lived
together as man and wife for over two years and that no children
were born to the marriage. Kathleen resumed her maiden name of
Rose. On June 24, 1980, an action was brought in the State of
Arizona by that state on behalf of Kathleen (who had now married
Cesar ~anciprian)against Sasse for determination of paternity and
for child support for Juliet. Sasse made a special appearance in
that action and it was dismissed for lack of personal jurisdiction
over him.
The instant action was begun by Kathleen with the State of
Arizona as a co-plaintiff and was transferred to Montana for
prosecution, on September 25, 1987, under the Uniform Reciprocal
Enforcement of Support Act, when the child was 12 years old. Sasse
filed his answer to the complaint, noting that he had no knowledge
of Kathleen's marital status at the time of their contact since she
was living alone in her apartment, but admitting that he had one
occasion of sexual intercourse with her in 1974. In his answer,
he did not plead the affirmative defense of the statute of
limitations.
The District Court appointed a guardian ad litem for the minor
child who was joined as a petitioner by stipulation of the parties.
Pursuant to S 40-6-110, MCA, the District Court caused notice
to be given to Stelios Kazantzoglou of the proceedings. He has not
intervened or otherwise appeared in the proceedings. The District
Court, perceiving that the constitutional validity of the five-
year statute of limitations contained in § 40-6-108, MCA, was
involved in the action, gave notice to the Attorney General of
Montana, who decided not to appear.
The District Court refused to apply the statute of limitations
on two principal grounds (1) that Sasse had waived the statute of
limitations by not including it in his answer to the complaint, and
(2) that in any event, the statute in this case was
unconstitutional. We will confine our discussion in this case only
to the constitutional issue since we find it dispositive.
By law, Stelios is presumed to be the father of Juliet because
he and the mother, Kathleen, were married to each other and the
child was born during the marriage. Section 40-6-105(1)(a), MCA.
The presumption, however, may be rebutted in an appropriate action
by a preponderance of the evidence. Section 40-6-105(2), MCA.
In a case where the existence of the father and child
relationship is presumed, an action may be brought for the purpose
of declaring the nonexistence of the presumed father and child
relationship not later than five years after the child's birth.
Section 40-6-108 (1)(b), MCA.
On the other hand, an action to determine the existence or
nonexistence of the father and child relationship as to a child who
has no statutorily presumed father (for example, born out of
wedlock) may be brought by the child up to two years after the
child attains the age of majority, or may be brought by a state
agency under Title IV-D of the Social Security Act before the child
attains the age of majority. Section 40-6-108(3), MCA.
On the basis that 40-6-108 creates a classification which
distinguishes for disparate treatment children with presumed
fathers and children without presumed fathers, the District Court
held the statute in violation of the equal protection guarantees
of Art. 11, S 4 of the Montana Constitution and the Fourteenth
Amendment of the United States Constitution.
*
Our cases on this point do not appear to be consistent. In
Borchers v. McCarter (1979), 181 Mont. 169, 592 P.2d 941, we had
a case where the mother of a child with a presumed father (born in
wedlock) brought an action for support of the child against another
man as the alleged natural father. Thus, the mother, in order to
obtain support, had to establish a parent-child relationship
between the child and a nonpresumed person. To do this she had
first to rebut the statutory presumption of paternity in the
presumed father. Because she had not rebutted the presumption
within five years of the child's birth, this Court held that her
claim was barred by the five-year statute of limitations.
In State Department of Revenue v. Wilson (Mont. 1981), 634
P.2d 172, the natural mother of a child born out of wedlock (no
presumed father) brought an action to determine the paternity of
the alleged natural father. At that time, there was a three-year
statute of limitations applicable to this class of action. This
Court noted the disparate treatment of children born in wedlock and
those born out of wedlock, in that children born in wedlock could
bring an action for support against the presumed father at any time
within the majority, whereas, under the three-year statute, the
child born out of wedlock lost its right of determination of
paternity and child support after three years from birth. We there
held that the three-year statute was invalid under the Fourteenth
Amendment of the United States Constitution because it was Ifnot
substantially related to a permissible state interest." Wilson,
634 P.2d at 174.
In Matter of W.C. (1983), 206 Mont. 432, 671 P.2d 621, the
child was born in wedlock and thus had a presumed father. The
mother and the presumed father were divorced nearly three years
after the birth and the final decree stated that the child was born
of the parties1 marriage. Later, the mother married the alleged
natural father, who filed an action to determine the parentage of
the child. The District Court dismissed the petition on the basis
that the alleged natural father was barred by the five-year statute
of limitations from challenging the presumed father and child
relationship. In upholding the application of the five-year
statute of limitations, this Court distinguished the decisions of
the United States District Court in Mills v. Habluetzel (1982), 456
U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 and Pickett v. Brown
(1983), 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372, which cases had
struck down one-year and two-year statutes of limitations
respectively. The distinguishing factor utilized by this Court was
that in the case of W.C., there was no question involved of the
child's right to support. Since the action was brought by the
natural father who was then supporting the child, this Court held
that there was no discrimination as between children born in
wedlock and those born out of wedlock as to their right to claim
support.
In the case at bar, the District Court relied on the holding
in Wilson, and decided that the five-year statute of limitations
in 5 46-6-108, MCA, was unconstitutional because it denied the
equal protection of the laws I1by affording a twenty (20) year
limitation period for paternity actions involving illegitimate
children and a five (5) year limitation period for paternity
actions involving legitimate children."
In Wilson, this Court utilized the rational basis test in
determining the equal protection issue. We here examine the level
of test to be used and the application of the statutes of
limitations in paternity cases in the light of Clark v. Jeter, 486
U.S. 456, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). There the United
States Supreme Court had before it a case involving Pennsylvania
law where a child born out of wedlock was required to prove
paternity to receive support from the natural father, and the suit
to establish paternity was required to be brought within six years
of the child's birth. By contrast, under Pennsylvania law, a child
born in wedlock could seek support from his or her parents at any
time .
In Clark, the United States Supreme Court determined to apply
a level of intermediate scrutiny in determining the equal
protection issues. The Court said:
In considering whether state legislation violates the
Equal Protection Clause of the Fourteenth Amendment, U.S.
Const., Arndt. 14, 5 1, we apply different levels of
scrutiny to different types of classifications. At a
minimum, a statutory classification must be rationally
related to a legitimate governmental purpose. (Citing
cases. ) Classifications based on race or national
origin, e-g., Lovins v. Virsinia, 388 U.S. 1, 11 (1967)
and classifications affecting fundamental rights, e.g.,
Harper v. Virsinia Board of Elections, 383 U.S. 663, 672
(1966), are given the most exacting scrutiny. Between
these extremes of rational basis review and strict
scrutiny lies a level of intermediate scrutiny, which
generally has been applied to discriminatory
classifications based on sex or illegitimacy (citing
cases).
To withstand intermediate scrutiny, a statutory
classification must be substantially related to a
governmental objective . Consequently, we have
invalidated classifications that burden illegitimate
children for the sake of punishing the illicit relations
of their parents, because "visiting this condemnation on
the head of an infant is illogical and unjust." (Citing
a case. )
Clark, 486 U.S. at 461.
In Clark, the Supreme Court then went on to examine the equal
protection issue. It reviewed Mills and Pickett, referred to by
this Court in W.C. It then went on to conclude that
Pennsylvania's six-year statute of limitations violated the federal
Equal Protection Clause.
Since the case at bar involves a discriminatory classification
based on illegitimacy, it is appropriate for us under Clark to
examine the equal protection issues here on the level of
intermediate scrutiny. On that level, a statutory classification
must be substantially related to an important governmental
objective. That objective in this case is not hard to determine:
The statutory classification is based on the state's interest in
maintaining stable families and in the prevention of stale or
fraudulent claims. countervailing these state's interests here
established is likewise the state's interest in requiring proper
support for all children, lest they become a burden upon the state
or others. A limitations statute must also be examined as to
whether it affords a reasonable opportunity to bring such suits.
In Mills, 456 U.S. at 105, the United States Supreme Court noted
the unwillingness of a mother to file a paternity action on behalf
of her child, which could stem from her relationship with the
natural father or from the emotional strain of having an
illegitimate child, or even from the desire to avoid community and
family disapproval which might continue years after the child is
born. That was one of the reasons why the United States Supreme
Court in Clark struck down Pennsylvania's six-year statute.
Other factors also militate against the constitutionality of
our five-year statute. Under 5 40-6-108, MCA, a child with a
presumed father may establish the presumed father's paternity at
any time, which seems to negate any argument respecting stale
claims. Moreover, advances in technology relating to genetic
markers found in blood tests remove much of the fear of false or
fraudulent claims of paternity. We noted the reliability of such
blood tests in Rose [no relation to the parties at bar] v. District
Court, Eighth Judicial District (1981), 192 Mont. 341, 628 P.2d
662; Wilson, 634 P.2d at 174. Under 5 40-6-113 (4), MCA, a district
court may require the parties to submit to appropriate tests.
Indeed the accuracy of modern blood tests removes many of the
justifications asserted for a five-year limitations statute. Such
tests can refute false or fraudulent claims of paternity, or
provide evidence that might otherwise be unavailable through the
passage of time.
This case is prosecuted by the State of Arizona under the
Uniform Reciprocal Enforcement of Support Act (URESA). The
principal object of URESA actions is to fix the duty of support,
an object that is accomplished here. The effect of this decision
setting aside the five-year limitations in paternity actions should
not be overestimated. We have simply set aside a time-bar that may
otherwise have thwarted the truth in URESA or other paternity
actions. There is no restraint under this decision that prevents
a court in this state from considering other issues that might
arise in such actions once the time-bar is lifted. The other
provisions of URESA, as enacted in this state, take care of that.
Thus our courts are not fenced off under URESA from considering
other issues than support that may affect the child, or his
adoptive, natural or presumed parents. Section 40-6-116, MCA,
gives the Court in URESA actions broad latitude in fixing a
judgment:
40-16-116. Judgment or order. (1) The judgment or
order of the Court determining the existence or non-
existence of the parent and child relationship is
determined for all purposes.
3(a) The judgment or order may contain any other
provision directed against the appropriate party to the
proceeding concerningthe custody and guardianship of the
child, visitation privileges with the child, the
furnishing of bond or other security for the payment of
the adjudgment, or anv other matter in the best interest
of the child. (Emphasis added.)
So such issues as the best interest of the child can be
separately considered by the Court in URESA actions.
On consideration of these relevant factors, we find the
constitutional balance is tilted. The five-year limitation in this
case is not substantially related to an important governmental
objective, since under our statutes the limitations vary from case
to case.
We therefore determine and hold, and agree with the District
Court, that the five-year statute of limitations contained in 5 40-
6-108(l)(b), MCA, is unconstitutional.
We bring to the attention of the legislature, if it again
considers this statute, a provision of the federal Child Support
Enforcement Amendments of 1984 which requires all states
participating in the federal child support program to have
procedures to establish paternity of any child who is less than
eighteen years old. 98 Stat. 1307, 42 U.S.C. 5 666(a)(5).
Justice I
We Concur:
Chief Justice
Justices
Justice Diane G. Barz dissenting.
Section 40-6-108(1) (b), MCA, may not be in conformity with the
federal Child Support Enforcement Amendments of 1984 requiring
"[plrocedures which permit the establishment of the paternity of
any child at any time ... 98 Stat. 1307, 42 U.S.C. 5 666(a) (5),
however, the statute is nonetheless constitutional. The majority
asserts that this Court's earlier decisions regarding this matter
are not consistent. I disagree. This Court's earlier decisions
are in fact consistent. It is the majority's present opinion that
does not appear to be consistent.
In Borchers v. McCarter (1979), 181 Mont. 169, 592 P.2d 941,
this Court correctly held that the five-year statute of limitations
barred the mother from attempting to prove the nonexistence of the
presumed father and child relationship. Likewise, this Court
correctly held in Matter of W.C. (1983), 206 Mont. 432, 671 P.2d
621, that 5 40-6-108(1)(b)., MCA, is not unconstitutional and the
Montana statutes do not differentiate between children born of
wedlock and children born out of wedlock. The statute rightfully
protected the presumed father from having his father and child
relationship challenged years later by the natural father.
It was this Court's decision in State, Department of Revenue
v. Wilson (Mont. 1981), 634 P.2d 172, 38 St.Rep. 1299, holding a
three-year statute of limitations unconstitutional because the
statute applied to all children born out of wedlock, that pertains
to the same reasoning employed by the United States Supreme Court
in the line of cases holding these statutes unconstitutional.
12
In Jimenez v. Weinberger (1974), 417 U.S. 628, 94 S.Ct. 2496,
41 L.Ed.2d 363, the Court struck down laws establishing
disabilities on illesitimate children.
In Levy v. Louisiana (1968), 391 U.S. 68, 88 S.Ct. 1509, 20
L.Ed.2d 436, a wrongful death statute, which precluded recovery by
illesitimate children, was declared unconstitutional.
In Trimble v. Gordon (1977), 430 U.S. 762, 97 S.Ct. 1459, 52
L.Ed.2d 31, a statute barring illesitimate children from inheriting
from an intestate father was held unconstitutional.
In Weber v. Aetna Casualty & Surety Company (1972), 406 U.S.
164, 92 S.Ct. 1400, 31 L.Ed.2d 768, the Court held that
illesitimate children were entitled to workman's compensation
benefits relating to the death of the father; and in Gomez v. Perez
(1973), 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56, the Court
established that illesitimate children have a right to the father's
support.
More recently, the Supreme Court struck down similar statutes
in Mills v. Habluetzel (1982), 456 U.S. 91, 102 S.Ct. 1549, 71
L.Ed.2d 770; Pickett v. Brown (1983), 462 U.S. 1, 103 S.Ct. 2199,
76 L.Ed.2d 372; and Clark v. Jeter (1988), 486 U.S. 456, 108 S.Ct.
1910, 100 L.Ed.2d 465. All these statutes deny illesitimate
children a right enjoyed by legitimate children, and were found to
be unconstitutional, as was Montana's statute in Wilson. However,
§ 40-6-108(1) (b), MCA, can be easily distinguished from the
unconstitutional statutes. Notwithstanding that the statute
creates a classification of children to be treated differently, the
.
statute sustains more important government purpose than do the
unconstitutional statutes and consequently, passes the muster of
intermediate scrutiny analysis.
The precise statutory classification created by 5 40-6-
108(1) (b), MCA, must be accurately recognized before the
intermediate scrutiny test can be properly applied. The statute
does not draw a line between children born of wedlock and children
born out of wedlock, and thereby deprive one class or the other of
a constitutional right. It more correctly draws a line between
children with presumed fathers who seek support from someone other
than the presumed father and all others ("all othersttinclude both
children with presumed fathers and children without presumed
fathers). The issue then becomes whether or not this
classification is substantially related to an important
governmental objective. The State s objective, as the majority
states, is to maintain stable families and prevent stale or
fraudulent claims. While it could be argued that these interests
alone are important enough, there are additional interests that
may be more important. The best interests of the child have always
been the most salient consideration in determining family matters
where children are involved. How can the best interests of the
child be served by allowing paternity actions to be brought years
after a child has developed a child-parent relationship with the
presumed father? Upon careful examination of the statute it
becomes obvious that it serves to promote legitimacy in that it
ensures that the presumption of legitimacy will not be challenged,
once the child reaches the age of five, by anyone. In other words,
once the five-year statute has elapsed, if there has been no
paternity action, the child's father is the presumed father. The
argument, that a child with a presumed father should have the right
to seek support from the natural father at any time up to the age
of majority, actually confers upon that child a right other
children do not have; the right to choose their father. Such a
right is not provided by the constitution. This statute simply
requires any challenge to the presumed father's status to be made
within five years or not be made at all. The possibility now
exists that the presumed father's relationship with the child can
be disrupted by an alleged natural father at any time. This
situation was precisely the kind that occurred in Matter of W.C.,
and it was 5 40-6-108(l) (b), MCA, that prevented the alleged
natural father from disrupting the presumed father's relationship
with his child. Once a child has reached the age of five, there
unquestionably has been created a parent-child bond between the
presumed father and the child. A paternity action challenging the
presumed father and child relationship years after that
relationship has been developed can serve only to damage and erode
the bond between father and child.
Without B 40-6-108 (1) (b), MCA, the possibility also exists
that the presumed father will, upon discovering his spouse's
malevolent transgressions years later, claim not to be the natural
father and attempt to establish the nonexistence of the presumed
father and child relationship. In such a scenario, the mother and
child may not, after many passing years, be able to locate the
natural father for purposes of establishing a legal entitlement to
support. Would it not be in the best interests of the child to
continue to receive support from the presumed father and at least
have a father?
This is similar to the situation that occurred in Clay v. Clay
(Minn. Ct. App. 1986), 397 N.W.2d 571. A presumed father attempted
to establish the nonexistence of his paternity during marriage
dissolution proceedings. Minnesota's three-year statute of
limitations (identical to ours except it reads three instead of
five years1) barred the presumed father from doing so and thereby
appropriately protected the child. Minn. State. Ann. 5 257.57
(1)(b). The constitutionality of the statute was raised and the
appellate court affirmed the lower court's decision upholding the
statute, saying the three-year statute "[wlas designed to promote
legitimacy ... [and] [plermitting a challenge to the legitimacy
of a child more than three years after its birth would defeat the
clear statutory purpose of promoting legitimacy." Clay, 397 N.W.2d
at 577. Clay was appealed.tothe U.S. Supreme Court and the Court
dismissed the appeal. (Clay v. Clay (1987), 484 U.S. 804, 108
S.Ct. 49, 98 L.Ed.2d 14.) Therefore, it appears the United States
Supreme Court was not troubled by the constitutionality question.
In Michael H. v. Gerald D. (1989), - U.S. 109 S.Ct.
' 1989 Amendment rewrote the Minnesota statute to include a
A
longer limitation (one year after the child's majority) in
situations where the presumed father becomes divorced from the
child's mother and is unaware of the child's birth.
2333, 105 L.Ed.2d 91, the United States Supreme Court looked at a
statute providing that a presumption of fatherhood could be
rebutted by blood tests, and only if motion for such tests was made
within two years from the date of the child's birth. The Court
found the statute to be constitutional and not a violation of the
due process clause or the equal protection clause of the United
States Constitution.
It must be re-emphasized that 5 40-6-108(1)(b), MCA, affects
only children that already have a presumed father. Therefore, the
majority's concern that there be llproper
support for all children,
lest they become a burden upon the staten is unfounded because only
children attempting to seek support from someone other than their
presumed father, would be barred by the five-year statute of
limitations. The presumed father would still be legally required
to support the child because he too would be barred by the same
five-year statute from doing otherwise. The present case is
illustrative of this point. The majority opinion notes that the
West Virginia court, in granting the divorce between Kathleen and
the presumed father, Stelios, found that the parties had no
children born to the marriage. If such is the case, then 5 40-6-
108 (1)(b), MCA, has been satisfied and the presumed father's status
is sufficiently rebutted within the five-year period. If such is
not the case, then Stelios remains the presumed father and is
obligated to support the child; in either event the child is
supported.
The statute not only serves to prevent stale or fraudulent
claims and help maintain stable families, it also, more
importantly, serves to protect the best interests of the child and
the rights of the presumed father by promoting legitimacy and the
sanctity of the family in which the child was brought up. The
statute is not in conformity with the federal Child Support
Enforcement Amendments of 1984 and should be changed, however, it
is not unconstitutional as its classification is substantially
related to a clearly important government interest.