Marriage of K.E.V., In re

• Decision Date: 19 May 1994
• Docket Number: No. 93-427,93-427
• Citation: 883 P.2d 1246,267 Mont. 323
• Parties: In re the MARRIAGE OF K.E.V., Petitioner, Respondent, and Cross-Appellant, and M.L.V., Appellant and Respondent. . Heard
• Court: Montana Supreme Court

Page 1246

883 P.2d 1246

267 Mont. 323

In re the MARRIAGE OF K.E.V., Petitioner, Respondent, and

Cross-Appellant,

and

M.L.V., Appellant and Respondent.

No. 93-427.

Supreme Court of Montana.

Heard May 19, 1994.

Submitted June 28, 1994.

Decided Oct. 25, 1994.

Mark P. Yeshe, Helena, for appellant.

J. Richard Orizotti, Poore, Roth & Robinson, Butte, for respondent.

WEBER, Justice.

This is an appeal by the wife from an Order of the District Court of the Second Judicial District, County of Silver Bow, 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 § 40-6-108(1)(b), MCA (1983)?

II. 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 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.'s 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 April 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 § 40-6-108(1)(b), MCA (1983)?

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 § 40-6-108(1), MCA.

At the time of K.R.V.'s birth, however, § 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 § 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 § 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 considering 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 support that may affect the child, or his adoptive, natural or presumed 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 § 40-6-108(1)(b), MCA (1983).

Issue II: Equitable Estoppel

Did the District Court err in applying the doctrine of equitable estoppel to prevent the mother from contesting the father-child relationship?

Notwithstanding its ruling on the statute of...