LeSage v. Dirt Cheap Cigarettes and Beer, Inc.

STEPHEN N. LIMBAUGH, JR., Chief Justice,

concurring.

I concur in the outcome of the case. I disagree, however, with the majority’s novel conclusion that the “evidentiary standards and presumptions of the parentage act [should] be used in attempting to prove [paternity]” but that the procedures and deadlines set forth in the UPA should be ignored. To my knowledge, this Court has never before condoned the practice of selective partial application of a statute, and I am unconvinced that it is necessary to do so here. Instead, I would hold that the UPA remains the exclusive mechanism, both substantively and procedurally, to establish paternity in Missouri. This holding would be limited only in cases where a statute explicitly conflicts with the terms of the UPA, and in cases involving unborn children' — eases that the UPA does not address.

On numerous occasions, Missouri courts have held that the UPA provides the exclusive means of establishing paternity, Richie By and Through Laususe v. Laususe, 950 S.W.2d 511, 514 (Mo.App.1997); Piel v. Piel, 918 S.W.2d 373, 375 (Mo.App.1996); Roberts v. Roberts, 920 S.W.2d 144, 146 (Mo.App.1996); State ex rel. K.R. v. Brashear, 841 S.W.2d 754, 756 (Mo.App.1992); Poole Truck Lines Inc. v. Coates, 833 S.W.2d 876, 877-78 (Mo.App.1992), including in cases involving wrongful death actions, Laususe v. Normandy Osteopathic Hosp., 918 S.W.2d 953, 956 (Mo.App.1996); Snead v. Cordes, 811 S.W.2d 391, 395 (Mo.App.1991). Indeed, the UPA, itself, declares its exclusivity: “The provisions of [the Act] shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of [the Act] among the states enacting it.” Section 210.850.

Despite the clear language of section 210.850, the majority maintains that nothing in the version of the UPA adopted by Missouri explicitly provides its exclusivity. In support, the majority cites to the new, 2000 version of the Uniform Parentage Act, not yet adopted by the General Assembly, that contains a section providing that the UPA shall be used to establish paternity “for all purposes,” as if Missouri’s current version of the UPA does not so provide. Unif. Parentage Act sec. 203, 9B U.L.A. 310 (2001). The majority, however, neglects to account for the official comment to this section, which admits that the section “may seem to state the obvious” but that its inclusion is necessary to prevent “erroneous statutory constructions.” Id. at cmt. to sec. 203. In this case, it appears to me that the majority is guilty of committing the kind of “erroneous statutory construction” that the new version of the UPA more proactively seeks to prevent.

To be sure, “the legislature’s purpose of providing a uniform procedure for determining paternity would not be well served by permitting paternity to be determined outside of the UPA.” Poole, 833 S.W.2d at 878. Accordingly, it is my contention — one that is supported by Missouri case law and the UPA itself — that as a general rule, the UPA is the exclusive mechanism for determining paternity, absent the existence of a statute that explicitly states otherwise. For instance, this Court has held that because the probate code expressly speaks to paternity, it is the code, rather than the UPA, that governs determinations of paternity in matters relating to probate. In re Nocita, 914 S.W.2d 358 (Mo. banc 1996). In contrast, the wrongful death act is silent on the question of paternity.

*7This ease, however, presents the unusual circumstance that a father has a right to establish paternity, but the UPA does not provide him a means to do so. In Connor v. Monkem Co., 898 S.W.2d 89 (Mo. banc 1995), this Court held that an unwed father may bring a wrongful death action for the death of his unborn child if the father can prove paternity. Nonetheless, the UPA does not contain a procedure by which an unwed father can prove paternity before the child is born, and in fact, it provides that all paternity proceedings are stayed until the child is born. Sec. 210.826.4. Therefore, consistent with our holding in Connor, plaintiff, an unwed father, must be permitted to establish paternity of the unborn child in a declaratory judgment action outside the UPA.

This conclusion, however, should not affect the exclusivity of the UPA in all other matters except probate. Because the UPA provides a mechanism for unwed fathers to establish paternity once the child is born, there is no need to provide a separate mechanism in wrongful death cases or other categories of cases.