MATTER OF W C
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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: ~ecided : Filed: - NOV 2 1983 Clerk -- September 16, 1983 November 2, 1983 Mr. Justice L.C. Court. Gulbrandson delivered the Opinion of the 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.), Rodger (R.J.B), natural mother of Tara (T.M.B), and 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 the stated parties' marriage. that Tara was a child born of 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. petitioner-appellant On filed an determine the parentage of Tara. July action 1982, 21, in Lake County to 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. December The 1 5I District 1982, Court on dismissed the the basis petition that on the petitioner-appellant was barred by the five-year statute of limitations, Section 40-6-108(1)(b), MCA, from challenging the presumed father respondent and Tara. and child relationship between 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 456 U.S. decisions 91, 71 L.Ed.2d , U.S. 76 in Mills v. Habluetzel (1982), 770, and Pickett v. Brown (1983), 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 one-year because statute of it made The Court held that limitations was unconstitutional 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 classification that was present absent in the case at bar. by governmental in Mills and Pickett is 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 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 its 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 40-6-105(1)(a), MCA. brought on behalf in accordance with Section In addition, the action is not being of the minor child and allegation the child is being denied support. there is no 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. 40-6-107(1), MCA. The invidious discrimination discussed in Mills and Pickett is not present here. statute does not discriminate appellant. Section Indeed, the Montana in any way against the 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 634 P.2d 172, 38 St.Rep. (Mont. 1981), 1299, overruled our decision in Borchers. In Borchers, a petition was filed more than five years after a child's birth to have someone presumed father declared the father. other than the 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 that held 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 Montana Constitution. and Article 11, Section 4, of the 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." District Court's decision, we held In affirming the that the statute was valid as against the state but unconstitutional as to an action brought child. for support on behalf of an illegitimate 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. the District Court properly relied Thus, 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 1980), 605 P.2d Sutherland 1133, 37 St.Rep. decision is 183. inapplicable to (Mont. However, the 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 provisions of of limitations and that section he because is subject he to the acknowledged his alleged paternity of Tara to the District Court. 40-6-105 provides: "(1) A man is presumed to be the natural father of a child if: Section "(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 the presumed father or afte ................................ r t h e 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 acknowledgment appellant of is again paternity barred actions father would by before be the any written effective. five-year challenging Thus, statute of the presumption of limitation on 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 clearly addressed brief in the present action has 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 ~ Chief Justice ~ , $ l g ! ~ ~ ~ ~ i , 1 / GL .~*4. , ~ d n . 'Diane G. 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