No. 93-427
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE THE MARRIAGE OF
K.E.V.,
Petitioner, Respondent,
and Cross-Appellant,
and
M.L.V.,
Appellant and Respondent. 25
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mark P. Yeshle, Helenla, Montana
For Respondent:
J. Richard Orizotti, Poore, Roth & Robinson, Butte,
Montana
Heard: May 1 9 , 1 9 9 4
Submitted: June 28, 1 9 9 4
Decided: October 25, 1994
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal by the wife from an Order of the District
Court of the First Judicial District, Lewis and Clark County, which
barred her from claiming the nonexistence of the father-child
relationship for purposes of child custody. The husband cross-
appealed from the portion of the District Court's order ruling that
the wife was not time-barred from asserting the nonexistence of the
father-child relationship. We affirm.
The restated issues are as follows:
I. Is the mother's claim seeking to declare the nonexistence
of the father-child relationship time-barred after five years under
5 40-6-108 (1)(b), MCA (l983)?
11. Did the District Court err in applying the doctrine of
equitable estoppel to prevent the mother from contesting the
father-child relationship?
After several years of an on-again, off-again relationship
between the parties in this proceeding, M.L.V. became pregnant and
advised K.E.V. that he was the father of her child. K.E.V.
(husband) and M.L.V. (wife) claim to have begun a common law
marriage in September of 1985, prior to the birth of K.R.V. in
November of the same year.
K.E.V. moved in with M.L.V. and her four children from a prior
marriage, changed his lifestyle and became involved in the
marriage, M.L.V.'s pregnancy and the establishment of the family
unit. K.E.V. was present at the birth of K.R.V. and thereafter
became an involved and loving parent, according to the testimony of
2
numerous witnesses on his behalf. He signed papers presented to
him by the attending doctor relating to the birth certificate at
the time of K.R.V.'s birth.
K.R.V.'s birth certificate shows K.E.V.'s surname but he has
never been named as the father on an official birth certificate,
apparently due to a mixup in recordkeeping at the Gallatin County
Registrar's office. The Gallatin County Registrar's office wrote
to M.L.V. shortly after K.R.V. 's birth advising her that K.E.V.
could not be listed on the birth certificate without an affidavit
from M.L.V.'s former husband stating he was not the father of the
child. K.E.V. testified he felt it was up to M.L.V. to correct the
error because he had signed the proper documents at the time of the
birth.
K.E.V. and M.L.V. later attempted to clarify the matter by
contacting the Gallatin County Registrar and the Department of
Health Vital Statistics Bureau in Helena. As a result, it was
determined that M.L.V.'s former husband did not need to sign any
documents and that K.E.V. could be listed as the father on K.R.V. 's
birth certificate by signing an acknowledgment of paternity.
K.E.V. did not sign the document immediately and M.L.V. continued
to urge him to do so. When he finally signed the acknowledgment of
paternity in October of 1991, M.L.V. refused to sign it until the
parties had a formal wedding. The parties never had a formal
wedding and the official birth certificate still lists no father.
M.L.V. first challenged K.E.V.'s paternity in K.E.V.'s first
petition for dissolution of the marriage filed in April of 1992
after K.E.V. was granted sole temporary custody of K.R.V. The
District Court granted M.L.V.'s motion to quash this custody order
on the basis that K.E.V.'s name did not appear on K.R.V.'s birth
certificate as the father, and the District Court had no authority
to award custody to a non-parent except under certain circumstances
not present in this case. The court then granted sole custody to
M.L.V.
After that, the parties reunited for a time, but their
reconciliation was short-lived. K.E.V. filed a second petition for
dissolution on December 15, 1992. K.E.V. testified that because
M.L.V. had continually represented to him that he was K.R.V. Is
natural father until she raised the issue in the first dissolution
proceeding, he moved the court for an order requiring blood testing
in order to confirm that he was the biological father of K.R.V.
K.E.V. also obtained sole custody of K.R.V. on December 15, 1992,
which was later modified to joint custody with primary physical
custody with K.E.V.
This was not the first time blood-testing had been done. The
first tests were performed when K.R.V. was a newborn infant and did
not rule out K.E.V. as the father of K.R.V. No further testing was
done although more conclusive testing could have been performed
when K.R.V. reached the age of six to eight months. The test
results from the recent second testing, however, proved that K.E.V.
is not K.R.V.'s biological father. K.E.V. is the only father
K.R.V. has ever known and he has been an involved parent--an
involvement encouraged by M.L.V.
After a hearing in ~ ~ r i l
1993, the District Court ruled that
the doctrine of equitable estoppel and the conclusive presumption
found in § 26-1-601(1), MCA, prevented M.L.V. from denying the
existence of the father and child relationship between K.E.V. and
K.R.V. The court had also determined that the statute of
limitations in effect at the time of K.R.V.'s birth had been held
unconstitutional by this Court and, therefore, did not bar M.L.V.
from asserting that K.E.V. was not K.R.V.'s father.
Issue I Statute of Limitations
:
Is the mother's claim seeking to declare the nonexistence of
the father-child relationship time-barred after five years under 5
40-6-108 (1)(b), MCA (l983)?
Section 40-6-105, MCA, provides a rebuttable presumption of
paternity for children born during a marriage for purposes of
actions to declare the existence or nonexistence of a father-child
relationship. Presently, the statute of limitations applicable to
paternity actions provides that a proceeding may be brought to
declare the existence or nonexistence of the presumed father and
child relationship without a specific time limitation. See 5 40-6-
108 (1), MCA.
At the time of K.R.V.'s birth, however, 5 40-6-108(1)(b), MCA
(1983), allowed only five years for bringing such an action. The
District Court determined that the five-year statute of limitations
in effect at the time of K.R.V.'s birth had been held
unconstitutional in State of Arizona v. Sasse (1990), 245 Mont.
340, 801 P.2d 598, and thus did not bar M.L.V. from bringing an
action to declare the nonexistence of the presumed father-child
relationship between K.E.V. and K.R.V. K.E.V. contends that Sasse
does not apply to this case as the 1983 version of 5 40-6-108(1),
MCA, was in effect when K.R.V. was born. He contends that Sasse
found the statute unconstitutional as applied to the facts of that
case and that the Montana Legislature's subsequent change in 5 40-
6-108, MCA, to allow the commencement of a paternity proceeding any
time does not affect the outcome of this case. K.E.V. further
contends that the holding of Sasse applies only to cases brought to
establish a support action. We disagree.
While it is true that a statute may be declared
unconstitutional as applied to the facts of a particular case and
constitutional as applied to the facts of another case, that was
not this Court's ruling in Sasse. In Sasse, the Court addressed a
constitutional challenge to the five-year limitation period in the
context of an action to collect child support under the Uniform
Reciprocal Enforcement of Support Act (URESA). Sasse involved a
discriminatory classification based on illegitimacy whereby the
challenged statute on its face allowed only five years for children
with presumed fathers to bring an action to establish paternity
while allowing twenty years to illegitimate children to commence
such a paternity action. Based on the United States Supreme
Court's holding in Clark v. Jeter, 486 U.S. 456, 108 S.Ct. 1910,
100 L.Ed.2d 465 (1988), we applied an intermediate scrutiny test to
the facts presented in Sasse. Sasse, 801 P.2d at 601.
If the effect of the ruling in Sasse is anything other than
one rendering the entire statute unconstitutional for all purposes,
then M.L.V. may be time-barred from bringing the claim as K.R.V.
was five years old on October 14, 1990. Sasse was decided on
November 27, 1990. We conclude that the unconstitutional
classification in Sasse, where the statute on its face created
different limitation periods for children with presumed fathers and
children without presumed fathers, was not limited to support
questions under URESA. Sasse states:
... 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
considerincr other issues that might arise in such actions
once the time-bar is lifted. . . .Thus our courts are
not fenced off under URESA from considering other issues
than suuuort that mav affect the child, or his adoptive,
natural or uresumed parents.
Sasse, 801 P.2d at 602 (emphasis supplied). The District Court
stated that "a close reading shows [Sasse] brooks no other
interpretation but that the Montana Supreme Court declared Section
40-6-108 (1)(b), MCA, wholly unconstitutional." We agree. This
language clearly states that the five-year period will not limit an
action which addresses issues other than support which can affect
the child or even his presumed parents.
We hold the mother's claim seeking to declare the nonexistence
of the father-child relationship is not time-barred after five
years under 5 40-6-108(1)(b), MCA (1983).
Issue 11: Eauitable Estouuel
Did the District Court err in applying the doctrine of
equitable estoppel to prevent the mother from contesting the
father-child relationship?
~otwithstandingits ruling on the statute of limitations, the
District Court refused to allow M.L.V. to further pursue an action
to rebut the presumption of K.E.V.'s paternity. The District Court
based this decision on the doctrine of equitable estoppel.
The Uniform Parentage Act (UPA), Title 40, Chapter 6, MCA,
includes the following rebuttable presumption referred to in Issue
I above:
40-6-105. Presumption of paternity. (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 ...
(d) while the child is under the age of majority, he
receives the child into his home and openly holds out the
child as his natural child; ...
The UPA provides for specific procedures to be followed in an
action to determine, among other things, the nonexistence of the
presumed parent-child relationship.
The presumption of paternity provided for in 5 40-6-105(1),
MCA, may be rebutted "in an appropriate action by a preponderance
of the evidence." Section 40-6-105(2), MCA. M.L.V. contends that
the presumption is rebutted in this case by uncontroverted medical
tests which prove that K.E.V. is not the biological father of
K.R.V. While this may be true, we need not address the medical
evidence as we are here concerned with the question whether M.L.V.
is equitably estopped from bringing the appropriate action to rebut
the presumption. As discussed below, we agree that M.L.V. is
estopped from challenging K.E.V.'s paternity and, therefore, her
8
contentions pertaining to K.E.V.'s alleged status as a non-parent
and its effect on custody in this case are not germane.
In essence, what M.L.V. has tried to do here is to deny K.E.V.
is the father of K.R.V. so that she might have sole custody; she
has not pursued any procedures to declare that another man is the
child's father. K.E.V. correctly maintains that the presumption of
legitimacy of a child born during a marriage is one of the
strongest and most persuasive known to the law. The New York court
of appeals has eloquently described the effect of the presumption
as follows:
Rooted in the common law, its force was so potent that
neither spouse was competent to testify to non-access
during wedlock. Thus, "[i]f a husband, not physically
incapable, was within the four seas of England during the
period of gestation, the court would not listen to
evidence casting doubt on his paternity." ...
In Goodright v. Moss (2 Cowp. 591), the court
outlined the principle which has come to be known as Lord
Mansfield's Rule:
"The Law of England is clear that the declarations
of a father or mother cannot be admitted to bastardize
the issue born after marriage. * * * It is a rule
founded on decency, morality, and policy that they shall
not be permitted to say after marriacre that they have had
no connection and therefore that the offspring is
spurious. ...
State ex rel. H. v. P. (N.Y. App. Div. l982), 457 N.Y.S.2d 488,
490-91. (Emphasis in original.) As quoted above, Montana codifies
this presumption as part of the UPA with certain provisions for
rebutting it. It is further codified in 5 26-1-602(31), MCA: "A
child born in lawful wedlock, there being no divorce from bed and
board, is legitimate."
with changing societal views concerning divorce and
illegitimacy over the years, we have seen an increase in the number
of families which are not the lltraditional"family composed of
mother, father and their biological children. Family law courts
have used several theories to reach an equitable result when there
are children involved and where there are established parent-child
relationships including persons other than their biological
parents. These include equitable estoppel, equitable parentage, &
loco parentis, de facto parent and llpsychological
parent" theories.
See, e s ,Annotation, Parental Riqhts of Man Who
.. is Not Biolosical
or Adoptive Father of Child but was Husband or Cohabitant of Mother
When Child was Conceived or Born, 84 A.L.R. 4th 655 (1991); A.
Haralambie, 1 Family Law Series: Handlinq Child Custodv, Abuse, and
Adoption Cases 5 10.11 (2d ed. 1993); H. Clark, Jr., 2 The Law of
Domestic Relations in the United States 5 20.6 (2d ed. 1987); and
J. McCahey, M. Kaufman and C. Kraut, 1 Child Custodv & Visitation
Law and Practice 5 1.03 (1994).
In this case, the District Court concluded that equitable
estoppel applies to estop the mother from denying the presumed
paternity of K.E.V. Estoppel has been used in other parentage
cases as well, with perhaps the most common application being that
of preventing a presumed father from denying paternity for purposes
of a support obligation. In many cases, the estoppel runs in favor
of the child, not the spouse. For a good general discussion of
this topic, see W. Simpson, The Power of Positive Parentinq:
Eauitable Esto~pelin Paternitv Cases, 4 Divorce Litigation 95 (May
1992).
As with the presumption of legitimacy, equitable estoppel has
long been recognized in Montana and is used to prevent injustice
and to promote justice, honesty and fair dealing. It is founded in
equity and good conscience and its object is to prevent a party
from taking unconscionable advantage of his or her own wrong while
asserting a strict legal right. In the Matter of Shaw (1980), 189
Mont. 310, 316, 615 P.2d 910, 914. We conclude that it is
appropriate to apply the doctrine of equitable estoppel in this
case.
In Dagel v. City of Great Falls (1991), 250 Mont. 224, 234-35,
819 P.2d 186, 192-93, we clarified the Montana law concerning
estoppel, reaffirming and readopting the six elements of estoppel
as previously set forth in Sweet v. Colborn School Supply (1982),
196 Mont. 367, 639 P.2d 521. In addition, we stated that the
conclusive presumption from 5 26-1-601, MCA, applied to the facts
of that case as well. Section 26-1-601, MCA, provides in pertinent
part:
26-1-601. List of conclusive presumptions. The
following presumptions are conclusive:
(1)the truth of a declaration, act, or omission of
a party, as against that party in any litigation arising
out of such declaration, act, or omission, whenever he
has, by such declaration, act, or omission, intentionally
led another to believe a particular thing true and to act
upon such belief;
In this case, K.E.V. has demonstrated that M.L.V. led him to
believe he was the father of K.R.V., that M.L.V. encouraged him to
act upon that belief and that he acted upon that belief. We
conclude this satisfies the criteria of 5 26-1-601(1), MCA.
We next consider the six essential elements of equitable
estoppel :
(1) there must be conduct, acts, language, or silence
amounting to a representation or a concealment of
material facts; (2) these facts must be known to the
party estopped at the time of his conduct, or at least
the circumstances must be such that knowledge of them is
necessarily imputed to him; (3) the truth concerning
these facts must be unknown to the other party claiming
the benefit of the estoppel at the time it was acted upon
by him; (4) the conduct must be done with the intention,
or at least with the expectation, that it will be acted
upon by the other party, or under the circumstances that
it is both natural and probable that it will be so acted
upon; (5) the conduct must be relied upon by the other
party, and, thus relying, he must be led to act upon it,
and (6) he must in fact act upon it in such a manner as
to change his position for the worse. (Citations
omitted. )
Daqel, 819 P.2d at 192.
In the present case, the Court concludes that K.E.V. has
demonstrated these elements by the required clear and convincing
evidence. See Berglund and Berglund, Inc. v. Department of Labor
and Indus. (1990), 241 Mont. 49, 53, 784 P.2d 933, 936. Estoppel
theories must rest on representation of facts. Minervino v.
University of Montana (1993), 258 Mont. 493, 497, 853 P.2d 1242,
1245. Equitable estoppel is a term used where a party is denied
the right to prove an otherwise important fact because of something
which the party has done or omitted to do. Norman v. State (1979),
182 Mont. 439, 443-44, 597 P.2d 715, 718.
The facts which M.L.V. represented or omitted to tell to
K.E.V. are as follows: M.L.V. told K.E.V. she had terminated her
relationship with her former husband several months prior to the
time K.R.V. was conceived. Although she now claims she was raped
by her former husband at approximately the time K.R.V. was
conceived, she did not tell K.E.V. even though K.E.V., as an
attorney, had represented her in that dissolution proceeding and
had had confrontations with him on at least two occasions. In
February or March of 1985, M.L.V. informed K.E.V. that she was
pregnant with his child. K.E.V. told her that he would accept his
obligations and responsibilities as the child's father.
In September of 1985, K.E.V. and M.L.V. began living together
in a common law marriage, according to the findings of the District
Court and the testimony of each of the parties. K.E.V. purchased
maternity clothing for M.L.V. and paid medical expenses pertaining
to the pregnancy and K.R.V.'s birth. He psychologically prepared
himself for the birth and was present during the delivery. Since
the child's birth, K.E.V. has assumed the financial responsibility
for K.R.V. Even before her birth, K.E.V. was an involved parent--a
position encouraged by M.L.V. Because of concerns raised by
K.E.V.'s family, mother, father and baby underwent blood tests at
the end of October of 1985, approximately two weeks after K.R.V.'s
birth. These tests did not exclude K.E.V. as the biological
father. M.L.V. and K.E.V. were informed at that time that more
conclusive testing could be performed about six to eight months
after K.R.V.'s birth. They did not pursue this further testing
until the second dissolution petition was filed.
K.E.V. testified that he underwent the blood testing because
he wanted K.R.V. to be accepted by his family. M.L.V. testified
that she told K.E.V. that she had been raped by her former husband
and that the child could be his or K.E.V.Is child. K.E.V.
testified that M.L.V. never told him there was a question of
paternity and never told him she had been raped. To the contrary,
she reaffirmed that K.E.V. was K.R.V. Is father by attempting to
list K.E.V. on the birth certificate and by providing K.E.V. Is
surname on the certificate for the child's name. The primary
reason why K.E.V.'s name was not on K.R.V.'s birth certificate as
her father was the record mixup in the Gallatin County Registrar's
Office which showed that M.L.V. was still married despite a divorce
granted five years previously.
In an attempt to straighten out the birth records, M.L.V.
urged K.E.V. to sign the acknowledgement of paternity to correct
the records. When he finally signed it, she refused to sign unless
the parties formalized their marriage. M.L.V. also testified that
she wanted K. R.V. to be K.E .V. s child and that she did indeed make
comments about the two having similar features. Witnesses
testified that M.L.V. had made numerous comments about their
likeness to one another. In a will prepared by M.L.V., she stated
that she had a fifth child born of her marriage to K.E.V. and
specifically declared she was married to K.E.V. Moreover, in
response to the petition for dissolution in this action, M.L.V.
denied that the marriage was irretrievably broken and alleged that
the welfare of K.R.V. might be adversely affected by a dissolution
and filed a motion for conciliation.
The District Court stated:
There was conduct, acts or language by [M.L.V.] which
amounted to a representation of a material fact, A,
that [K.E.V.] was [K.R.V.Is] father. As the speaker of
these facts, [M.L.V. ] knew of them; [K.E.V. ] did not know
of the falsity of these facts at the time; [M.L.V.] knew
that her conduct would cause [K.E.V.] to act in certain
ways; [K.E.V.] relied upon what [M.L.V.] told him and it
led him to act upon it; and [K.E.V.] did actually change
his position, in fact, his very life, detrimentally.
We conclude that M.L.V. 's conduct as partially set forth above
establishes all six elements of equitable estoppel by clear and
convincing evidence. We note that the reference to a "detrimental"
change in position by K.E.V. in this case is not in any way to be
construed to mean that K.E.V. is adversely affected by his
assumption of a parental role here. It is clear from the record
that K.E.V. has a close, loving relationship with K.R.V. that is a
very positive part of both of their lives which he wants to
continue. The term "detrimental" as used in the context of these
proceedings means that K.E.V. has been required to respond to
M.L.V.'s self-serving proof that he is not K.R.V.'s biological
father. To allow M.L.V. to assert that K.E.V. is not the presumed
father of K.R.V. would be to allow her to take advantage of her own
wrong. This would be both unconscionable and inequitable.
We hold the District Court properly applied the doctrine of
equitable estoppel to the facts presented in this case to prevent
M.L.V. from contesting the presumed father-child relationship
between K.E.V. and K.R.V.
The concurring and dissenting opinion of Chief Justice Turnage
states that the Court has created a father-child relationship
between K.E.V. and K.R.V. w i t h o u t so much as providing notice to
the biological father, and has emphasized that a child cannot have
two fathers at the same time. This opinion does not address the
issue of the identity of the biological father of K.R.V. M.L.V.
did not request a determination in this proceeding of the identity
of the biological father. No evidence has been presented
sufficient to establish that identity. M.L.V. testified that she
had been raped by her former husband but that in itself is
insufficient to constitute identification of the biological father.
This opinion does not address the issue of the identity of the true
biological father of K.R.V. The holding of this opinion does not
in any way bar the biological father or the child, K.R.V., from
commencing a proceeding to determine the identity of the biological
father.
Affirmed.
We Concur:
Chief Justice
Justices
Chief Justice J. A. Turnage, concurring in part and dissenting in
part :
I concur with the majority that the claim of M.L.V. is not
barred by the five-year statute of limitations under 40-6-
108 (1)(b), MCA (1983). However, I respectfully dissent from the
majority's conclusion that M. L.V. is barred from challenging the
existence of the father-child relationship on the basis of
equitable estoppel.
First, equitable estoppel is an unfavored doctrine and can
only be sustained upon clear and convincing evidence. Kenneth D.
Collins Agency v. Hagerott (19841, 211 Mont. 303, 684 P.2d 487.
The record does not establish by clear and convincing evidence that
M.L.V. misled K.E.V. about the paternity of K.R.V. There was
evidence that the uncertain paternity of K.R.V. had been a subject
of conjecture by M.L.V. and K.E.V. since K.R.V.fs birth.
Second, and of even more concern to me, the Court has created
a father-child relationship between K.E.V. and K.R.V. without so
much as providing notice to the biological father. What about his
rights or standing? A child cannot have two fathers at the same
time, under the Law. Yet there is no indication in the record that
the parental rights of the biological father have been either
terminated or relinquished under the procedures established in
5 40-6-129 or 5 40-6-135, MCA, or in Title 41, chapter 3, part 6,
MCA. Assumedly, then, his parental rights still exist. How will
his parental rights be reconciled with those granted to K.E.V.
under the majority opinion?
Finally, we have consistently held that parental rights cannot
be acquired by a non-biological parent except after following a
statutory procedure. See, Henderson v. Henderson (1977), 174 Mont.
1, 568 P.2d 177; Matter of Guardianship of Doney (1977), 174 Mont.
282, 570 P.2d 575 (abuse, dependency and neglect statutes); Pierce
v. Pierce (l982), 197 Mont. 255, 645 P.2d 1353 (adoption statutes);
Matter of Guardianship of Aschenbrenner (1979), 182 Mont. 540, 597
P.2d 1156 (guardianship statutes); Marriage of Miller (1992), 251
Mont. 300, 825 P.2d 189 (marriage dissolution statutes). In
creating, under the guise of equity, parental rights in a person
who, indisputably, is not a biological parent, without first
terminating the rights of the biological father and mother, we have
not only totally ignored our prior case law, but we have also
abrogated the very necessary function of the legislature to pass
statutes authorizing the type of social engineering that we here
accomplish by judicial fiat. There is truth in the old adage that,
once you open a can of worms, you can never put them back, except
in a larger can--if you can find a larger can.
Given the apparent identifiability of K.R.V.'s biological
father and the failure of K.E.V. to establish the elements of
equitable estoppel by clear and convincing evidence, I would
reverse the District Court's ruling as to Issue 11.
Chief Justic
Justice James C. Nelson joins in the opinion of chief Justice
Turnage.
.
Justice Terry N. Trieweiler specially concurring in part and
dissenting in part.
I concur with that part of the majority's opinion which
affirms the District Court's finding and conclusion that the
doctrine of equitable estoppel precludes M.L.V. from contesting the
presumed father-child relationship between K.E.V. and K.R.V.
I dissent from that part of the majority's opinion which
concludes that M.L.V.'s challenge to K.E.V.'s paternity is not
barred by the statute of limitations found at 5 40-6-108(1) (b), MCA
The majority's conclusion that M.L.V.'s challenge to K.E.V.'s
paternity was not barred by the statute of limitations is based on
its conclusion that, in State o Arizona v Sasse (1990), 245 Mont. 340,
f .
346, 801 P.2d 598, 602, 5 40-6-108(1) (b), MCA (l983), was found
facially invalid, rather than invalid as applied to the facts in
that case. Since there was absolutely no analysis of facial
invalidity versus applied invalidity in the Sasse case, the
majority's conclusion is unfounded.
Conventional wisdom holds that a court may declare
a statute unconstitutional in one of two manners: (1) the
court may declare it invalid on its face, or (2) the
court may find the statute unconstitutional as applied to
a particular set of circumstances. The difference is
im~ortant. If a court holds a statute unconstitutional
on its face, the state may not enforce it under any
circumstances, unless an appropriate court narrows its
application; in contrast, when a court holds a statute
unconstitutional as applied to particular facts, the
state may enforce the statute in differentcircumstances.
In recent vears. the Supreme Court has uuruorted to
disfavor facial challenses. As the Court stated in United
Statesv. Salerno, "[a] facial challenge to a legislative Act
is, of course, the most difficult challenge to mount
successfully, since the challenger must establish that no
set of circumstances exists under which the Act would be
valid."
Michael C. Dorf , Facial Challenges to State and Federal Statutes, 46 Stan.
L. Rev. 236 (January 1994) (footnotes omitted) (emphasis added).
In S ~ S S there was no analysis of whether 5 40-6-108 (1)(b), MCA
~,
(1983), could withstand a facial challenge to its
constitutionality. In fact, our prior decision in Matter of W C
..
(1983), 206 Mont. 432, 671 P.2d 621, indicates that it could.
Under the circumstances presented in Matter of W C . , at least, we held
that there were circumstances under which the statute of
limitations would be valid. Although Matterof K C . was discussed and
distinguished in Sasse, it was not reversed or otherwise modified.
Furthermore, our decision in Sasse analyzed statutory
classifications based on illegitimacy in the context of the equal
protection clause found at Article 11, Section 4, of the Montana
Constitution, and the Fourteenth Amendment to the United States
Constitution. There are no similar classifications affected by the
statute's application to the facts in this case. Therefore, there
is not even a basis for an equal protection challenge in this case.
In Sasse, an action was commenced in Montana by a child's
mother and the State of Arizona under the Uniform Reciprocal
Enforcement of Support Act to establish Alan Sasse's paternity of
that child and to recover child support from him. However, the
child was born during the mother's marriage to another person, and
more than five years had passed since the child's birth. Since
there was a statutory presumption pursuant to § 40-6-105(1) (a),
MCA, that someone other than Sasse was the child's natural father,
that presumption had to be overcome before child support could be
recovered from Sasse. The issue was whether the child in that case
could be barred from pursuing a claim for child support based on
the five-year limitation found at § 40-6-108(1) (b), MCA (l983),
when a child to whom no similar presumption applied could bring a
cause of action for support until two years after he or she reached
the age of majority. In Sasse, there was clearly disparate
treatment of child support actions based on a child's status as
legitimate or illegitimate. Because of that disparate treatment,
and because of prior decisions by the United States Supreme Court
in Millsv.Habluehel (1982), 456 U S 91, 102 S. Ct. 1549, 71 L. Ed. 2d
..
770, and Pi~kettv. Brown (1983), 462 U.S. 1, 103 S. Ct. 2199, 76
L. Ed. 2d 372, which prohibited discrimination based on
illegitimacy pursuant to the Equal Protection Clause, we concluded
that an equal protection analysis was necessary. We held that:
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.
Sasse, 801 P.2d at 601.
After balancing the State's interest in the statutory
classification against the countervailing interest in requiring
proper support for all children, we concluded that disparate
treatment of legitimate and illegitimate children did not survive
middle-tier scrutiny, and therefore, held that § 40-6-108 (1)(b),
MCA, was unconstitutional. We did not specify that it was
unconstitutional as applied to the facts in that case. However, no
other conclusion can be drawn from that opinion. The entire equal
protection analysis in that case was based upon the classifications
presented by.the facts in that case. Furthermore, there was no
discussion of facial invalidity, nor any analysis that would be
prerequisite to a conclusion of facial invalidity.
This case, on the other hand, presents no disparate treatment
of actions to recover child support based on the status of
illegitimacy. The issue in this case is simply whether a person
who is presumed to be a child's father because the child was born
during his marriage to her mother, may be assured that that
presumption cannot be challenged after the child's fifth birthday.
There are no classifications involved. There is no similar class
of presumed parent for children born out of wedlock who could be
treated differently than the class to which K.E.V. belongs. This
case is controlled by our decision in Matter o W C
f ..
In Matter o KC., Roger was presumed to be the natural father of
f
Tara because she was born during his marriage to her mother. After
the dissolution of that marriage, Wallace filed a petition
challenging Roger's parenthood and filed blood test results
indicating that he was the child's natural father. The district
court held that the petition was barred by § 40-6-108(l)(b), MCA,
because it was not filed within five years from Taralsbirth. This
Court affirmed. In the process, this Court rejected Wallace's
assertion that the statute of limitations was rendered
unconstitutional by the Supreme Court's equal protection decisions
in Mills and Pickett. We distinguished cases where children's rights
to recover child support was affected by their status as legitimate
or illegitimate. We held that:
The deprivation of equality by governmental
classification that was present in Milk and Pt'ckett is
absent in the case at bar. ...
In the present case w e 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
5 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 n t unconsti-
o:
tutional 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 Milk and Pickett is not present
here. Indeed, the Montana statute does not discriminate
in any way against the appellant.
Matter of W.C. , 671 P.2d at 622-23.
~ikewise,§ 40-6-108, MCA (1983), did not discriminate in any
way against M. L.V. Therefore, she had no standing to challenge the
statute on an equal protection basis, and the District Court erred
by invalidating the statute on that basis.
For these reasons, I conclude that there has never been a
successful facial challenge to the constitutionality of 5 40-6-108,
MCA (1983); that statute is not unconstitutional as applied to the
facts in this case; and M.L.V.'s challenge to K.E.V.'s paternity
was barred because it was not brought within five years from the
date of their child's birth. I would reverse the District Court's
failure to apply the statute of limitations as a bar to M.L.V. 's
claim, and I dissent from that part of the majority opinion which
affirms the District Court's failure to do so.
October 25, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Mark P Yeshe
Attorney at Law
P.O. Box 483
Helena. MT 59624
J. Richard Orizotti, Esq.
Poore, Roth & Robinson, P.C.
1341 Harrison Ave.
Bune, MT 59701
ED SMITH
CLERK O F THE SUPREME COURT
STATE OF MONTANA