D.E. v. K.F.

• Decision Date: 18 December 2012
• Docket Number: No. 20120069.,20120069.
• Citation: 2012 ND 253,825 N.W.2d 832
• Parties: D.E., Plaintiff and Appellant v. K.F. and M.F., Defendants and Appellees.
• Court: North Dakota Supreme Court

825 N.W.2d 832

2012 ND 253

D.E., Plaintiff and Appellant

v.K.F. and M.F., Defendants and Appellees.

No. 20120069.

Supreme Court of North Dakota.

Dec. 18, 2012.

Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable Zane Anderson, Judge.

Theresa L. Kellington, Bismarck, N.D., for plaintiff and appellant.

Ashley E. Holmes, Dickinson, N.D., for defendants and appellees.

SANDSTROM, Justice.

[¶ 1] The child, S.B., is an orphan. Her mother and presumed father are dead. No one is claiming custody through either parent. K.F. and M.F. physically have the child and claim to be “private foster parents” even though they are not related to the child and no legal authority for their possession appears. They were given the child by J.H., who is not related to the child but thinks he may be “technically the guardian” even though the record reflects no appointment as a guardian. D.E. believes he is the biological father. He sued, seeking to establish his paternity of the orphan child, and named K.F. and M.F. as defendants, apparently because they physically have the child. K.F. and M.F. objected to the paternity action going forward, and the district court dismissed the case. We conclude that the district court should have appointed a guardian ad litem for the child and that K.F. and M.F. had no right to challenge the paternity action as they did. We reverse and remand for further proceedings.

I

[¶ 2] D.B. is the biological mother of the child, who was born in 2001. D.B. and E.B. were married in December 2000 and are listed as the mother and father on the child's 2001 birth certificate. E.B. died in 2003, and D.B. died in 2009.

[¶ 3] In July 2011, D.E. began this proceeding under N.D.C.C. ch. 14–20 against K.F. and M.F., with whom the child presently resides, alleging he is the child's biological father. D.E. requested the district court to order a paternity test and, if found to be the child's biological father, to immediately award him sole residential and decision-making responsibility for the child. K.F. and M.F. answered, claiming they are acting as the child's “private foster parents” and are in the “process of seeking” legal guardianship, although there was no record such a proceeding had begun. K.F. and M.F. moved to dismiss this proceeding, asserting D.E. failed to state a claim for which relief could be granted because N.D.C.C. § 14–20–42 “bar [red] all actions for paternity testing filed later than two years after the birth of the child when there is a presumed father.”

[¶ 4] After an evidentiary hearing, the district court decided D.E.'s request was time-barred by the two-year limitation period in N.D.C.C. § 14–20–42(1) and dismissed the proceeding. The court specifically found that E.B. and D.B. were married when the child was born and that E.B. was the “presumed” father of the child. In deciding D.E. failed to establish an exception to the two-year limitation in N.D.C.C. § 14–20–42(2), the court found there was not sufficient evidence to show E.B. and D.B. did not cohabit during the probable time of conception and never engaged in sexual intercourse with each other during the probable time of conception. The court also found there was not sufficient evidence showing E.B. never openly held the child out as his own child. Rather, the court found there was evidence showing E.B. had openly held out the child as his own child. The court concluded D.E. failed to meet threshold requirements to maintain a proceeding to adjudicate the parentage of a child with a presumed father more than two years after the child's birth.

[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 14–20–04, 14–20–36, and 27–05–06. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28–27–01.

II

[¶ 6] D.E. argues N.D.C.C. ch. 14–20 does not apply to the “very unusual” circumstances in this case. He further argues that if N.D.C.C. ch. 14–20 does apply, the statutes should be interpreted in his favor to address the specific circumstances. D.E. asserts there is a “high probability” he is the father, based on a prior event of sexual intercourse with the child's biological mother and based on alleged erectile dysfunction of the child's presumed father.

[¶ 7] Interpretation of a statute is a question of law, fully reviewable on appeal. Gerhardt v. C.K., 2008 ND 136, ¶ 5, 751 N.W.2d 702. Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears. N.D.C.C. § 1–02–02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. § 1–02–07. “When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1–02–05.

[¶ 8] Chapter 14–20, N.D.C.C., applies to the determination of parentage in North Dakota. N.D.C.C. §§ 14–20–01, 14–20–03(1). Section 14–20–04, N.D.C.C., authorizes the district court to adjudicate parentage under chapter 14–20. See Schirado v. Foote, 2010 ND 136, ¶ 9, 785 N.W.2d 235. Under N.D.C.C. § 14–20–36, a civil proceeding is authorized to adjudicate a child's parentage and is governed by the North Dakota Rules of Civil Procedure. See alsoN.D.R.Civ.P. 81 and Table A.

[¶ 9] Section 14–20–02(16), N.D.C.C., defines a “presumed father” as “a man who, by operation of law under section 14–20–10, is recognized as the father of a child until that status is rebutted or confirmed in a judicial proceeding.” (Emphasis added.) Section 14–20–02(2), N.D.C.C., defines an “adjudicated father” as “a man who has been adjudicated by a court of competent jurisdiction to be the father of a child.” As relevant to this case, under N.D.C.C. § 14–20–07(2)(a), “[t]he father-child relationship is established between a man and a child by: a. An unrebutted presumption of the man's paternity of the child under section 14–20–10; ... c. An adjudication of the man's paternity.”

[¶ 10] A presumption of paternity arises when a man is married to the mother of the child and the child is born during the marriage. N.D.C.C. § 14–20–10(1)(a). The paternity presumption established under N.D.C.C. § 14–20–10 “may be rebutted only by an adjudication under sections 14–20–36 through 14–20–58.” N.D.C.C. § 14–20–10(2) (emphasis added). Section 14–20–42, N.D.C.C., however, provides a time limitation for proceedings when a child has a presumed father:

1. Except as otherwise provided in subsection 2, a proceeding brought by a presumed father, the mother, or another individual to adjudicate the parentage of a child having a presumed father must be commenced not later than two years after the birth of the child.

2. A proceeding seeking to disprove the father-child relationship between a child and the child's presumed father may be maintained at any time if the court determines that:

a. The presumed father and the mother of the child neither cohabited nor engaged in sexual intercourse with each other during the probable time of conception; and

b. The presumed father never openly held out the child as his own.

3. For purposes of this section and section 14–20–43, an action to establish support for a child is a proceeding to adjudicate parentage if the child's presumed father raises nonpaternity as a defense to the action.

N.D.C.C. § 14–20–42 (emphasis added).

[¶ 11] Thus, although there is a two-year statute of limitations for proceedingsto disprove a presumed father's relationship after the child's birth, a proceeding may be maintained “at any time” if the court finds both of the stated conditions are met under N.D.C.C. § 14–20–42(2)(a) and (b). Generally, a defense based on the statute of limitations in a civil proceeding is an affirmative defense, and the party relying on the statute of limitations has the burden of proving the action is barred. See Interest of K.B., 490 N.W.2d 715, 717 (N.D.1992); McCarter v. Pomeroy, 466 N.W.2d 562, 566 (N.D.1991) (citing 54 C.J.S., Limitations of Actions § 294 (1987)). We have also said that “ ‘a party who claims the benefit of an exception to a statute of limitations bears the burden of showing the exception.’ ” F/S Mfg. v. Kensmoe, 2011 ND 113, ¶ 26, 798 N.W.2d 853 (quoting Kimball v. Landeis, 2002 ND 162, ¶ 29, 652 N.W.2d 330);see, e.g., In re J.H., 264 S.W.3d 919, 922 (Tex.Ct.App.2008); In re Rodriguez, 248 S.W.3d 444, 451 (Tex.Ct.App.2008). See generallyUnif. Parentage Act (2000) § 607 cmt. (updated 2002) (explaining difficult policy choices of limiting proceedings to disprove a presumed father's relationship).

III

[¶ 12] Although D.E. generally argues N.D.C.C. ch. 14–20 does not apply to the unusual circumstances in this case, we conclude the dispositive issue is whether K.F. and M.F. were proper parties to raise the statute of limitations defense under N.D.C.C. § 14–20–42.

[¶ 13] Generally, courts have held in various contexts that “the defense of the running of the statute of limitations is regarded as a personal privilege, which must be raised, and which may be waived.” 54 C.J.S., Limitations of Actions § 35 (2010) (cases cited therein). “The general view is that only the person for whose benefit the statute inures or someone standing in that person's place, may take advantage of it, and not a stranger.” Id. (emphasis added). “As a rule, the defense may not be asserted by one party on behalf of another person.” Id. Under those general principles, our decision in P.E. v. W.C., 552 N.W.2d 375, 379 (N.D.1996), provides guidance for this issue.

[¶ 14] In P.E., 552 N.W.2d at 377, the child's biological mother and her husband were married in 1982, separated in 1984, and divorced in February 1986 under a stipulation providing no children had been or would be born of the marriage. A child was subsequently born in June 1986. Id. The biological mother had begun a...