DSS OF STATE EX REL. WRIGHT v. Byer

• Decision Date: 31 March 2004
• Docket Number: No. 22609.,22609.
• Citation: 678 N.W.2d 586,2004 SD 41
• Court: South Dakota Supreme Court
• Parties: The DEPARTMENT OF SOCIAL SERVICES OF the STATE of South Dakota, ex rel. Julienne C. WRIGHT, Plaintiff and Appellant, v. Bret J. BYER, Defendant and Appellee.

678 N.W.2d 586

2004 SD 41

The DEPARTMENT OF SOCIAL SERVICES OF the STATE of South Dakota, ex rel. Julienne C. WRIGHT, Plaintiff and Appellant, v. Bret J. BYER, Defendant and Appellee.

No. 22609.

Supreme Court of South Dakota.

Considered on Briefs April 28, 2003.

Reassigned July 24, 2003.

Decided March 31, 2004.

Rehearing Granted May 7, 2004.

Wm. Mark Kratochvil, Brookings County Deputy State's Attorney, Brookings, SD, for plaintiff and appellant. Donald M. McCarty of McCann, Ribstein, Hogan & McCarty, Brookings, SD, for defendant and appellee.

KONENKAMP, Justice (on reassignment).

[¶ 1.] In this appeal, we are confronted with an instance where the presumption of legitimacy resulted in a child not receiving financial support from either her presumed father or her putative father. Because the mother was pregnant at the time of the divorce and the husband's paternity was in doubt, the parties agreed that genetic testing would later resolve the issue. The child was born within ten months of the dissolution of the marriage, and the genetic testing later established that the former husband was not the father. In the action against the putative father to establish his paternity, the circuit court granted summary judgment dismissing the case and refusing to order a blood test. The court ruled that the action was not commenced within the sixty-day statutory period allowed to contest paternity. We conclude that this statute of limitations violates the equal protection guarantees of the South Dakota and United States Constitutions. Thus, it is unconstitutional because it improperly discriminates between children with presumed fathers and children without presumed fathers. We are left, therefore, with both the presumption of legitimacy and the presumption of paternity from genetic testing, which create conflicting presumptions here. We reverse and remand for the circuit court to consider the best interests of the child in resolving the conflict.

Background

[¶ 2.] Julienne Wright and Stephen Stein married on June 24, 1994. Four years later, they became estranged, and Wright moved out of the home. From August to October 1998, she lived with defendant, Bret J. Byer. On February 4, 1999, Wright and Stein divorced. The divorce decree incorporated their stipulation, which provided for joint legal and physical custody of their two sons. The decree also ordered that because custody was to be shared equally neither party would pay any child support. In addition, the stipulation provided: "considering the plaintiff is currently pregnant, the parties agree that a paternity test will be performed after the child is born. If [Stein] is determined [to be] the biological father of the child, the visitation schedule for the minor child will be the same schedule as for the other children, as set forth in this provision...." A girl, K.S., was born on May 2, 1999. Stein was listed as the father on her birth certificate, and she was given Stein's name. Neither Wright nor Stein brought an action to determine paternity within sixty days of the child's birth.

[¶ 3.] Sometime thereafter, the mother received public assistance for K.S. from the State of South Dakota. Consequently, almost three years later, on March 9, 2002, a paternity action was commenced by the Department of Social Services, seeking to have defendant Bret J. Byer declared K.S.'s father and requesting an order for child support. In her affidavit, Wright alleged that while she was still married to Stein, she was living with Byer when K.S. was conceived. She asserted that the issue of Stephen Stein's paternity had been disputed since the divorce, but recent paternity testing had excluded him as the biological father of K.S.

[¶ 4.] Relying on In re Support Obligation of Do Rego, 2001 SD 1, 620 N.W.2d 770, the trial court reluctantly dismissed the action because it had not been brought before the limitations period expired. In granting summary judgment, the court stated, "the statutes do have a reason and a purpose, and once in awhile they fail in that reason and purpose." Thus, the court ruled, "I'm afraid I'm going to have to hold my nose and grant[.]"

[¶ 5.] Under his divorce decree, Stein is not presently obligated to pay any child support for his two sons or K.S. From the sparse record, we cannot determine if any effort has been made to modify the decree to provide for the support of his presumed daughter, K.S. There is only the stipulation, with its tentative recognition that he may not be K.S.'s father.

Analysis and Decision

[¶ 6.] Our standard of review for summary judgments has been recited in numerous cases and need not be repeated here. See Kobbeman v. Oleson, 1998 SD 20, ¶ 4, 574 N.W.2d 633, 635. There are two statutes applicable to these proceedings. First, SDCL 25-8-57 provides:

Any child born in wedlock, or born within ten months after dissolution of the marriage, is presumed legitimate to that marriage even if the marriage is subsequently declared to be null and void, or subsequently dissolved by divorce. This rebuttable presumption of legitimacy can only be disputed by the husband or wife, or a descendant of one or both of them.

Second, SDCL 25-8-59 provides:

Any action contesting a rebuttable presumption of paternity as established by §§ 25-8-50 to 25-8-58, inclusive, shall be commenced in circuit court either sixty days after the creation of the presumption of paternity or the date of any administrative or judicial proceedings relating to the child including proceedings to establish a support obligation in accordance with § 25-8-52, whichever occurs earlier, except in cases where there are allegations of fraud, duress, or material mistake of fact. In cases involving allegations of fraud, duress, or material mistake of fact, any action contesting a rebuttable presumption of paternity shall be commenced within three years after the creation of any presumption. The burden of proof shall be upon the moving party and the payment of child support, or any other legal responsibilities of the parties, may not be suspended during the pendency of the proceedings, except upon a showing of good cause by the moving party.

[¶ 7.] In this case, Byer, the putative father, successfully raised the presumption of legitimacy in SDCL 25-8-57 and the limitations period in SDCL 25-8-59 to avoid taking a blood test to determine his paternity. Thus, he escaped an obligation to pay support for the child he is alleged to have fathered. The presumption of legitimacy was intended to protect children from the stigma of illegitimacy and to preserve society's interest in family unity. Neither of these goals was fulfilled here. The former husband is not the father and apparently is not supporting the child and the putative father escaped before any paternal duty could be imposed. Now the child faces the prospect of having no father to support her.

A. Unconstitutional Statute of Limitations

[¶ 8.] The United States Supreme Court in Clark v. Jeter applied the intermediate scrutiny standard to decide whether a paternity statute that treated illegitimate children differently than it treated legitimate children violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. 486 U.S. 456, 461-62, 108 S.Ct. 1910, 1914-15, 100 L.Ed.2d 465 (1988). There, the Court ruled that a statute that required an illegitimate child to bring a paternity and support action within six years after the child's birth but did not similarly restrict a legitimate child's right to bring a support action was not substantially related to an important governmental objective. Id. at 462-65, 108 S.Ct. at 1914-16.

[¶ 9.] The Supreme Court wrote that the six-year period did "not necessarily provide a reasonable opportunity to assert a claim on behalf of an illegitimate child." Id. at 463, 108 S.Ct. at 1915. The Court recognized that the mother may not be willing or able to present the child's claim because of her relationship with the natural father or because of the emotional and financial strain of having an illegitimate child. Id. at 463-64, 108 S.Ct. at 1915-16. The Court reasoned that the six-year limitation was not substantially related to a state's governmental interest in preventing stale and fraudulent claims from being presented because, in other circumstances, the law allowed litigants to bring paternity and support claims later than six years after the child's birth. Id. at 464, 108 S.Ct. at 1915-16. The decision further discounted the problem of stale and fraudulent claims being initiated by stating that, with the increased sophistication of genetic testing, the problem was less prevalent. Id. at 465, 108 S.Ct. at 1916.

[¶ 10.] In a case strikingly similar to our own, the Montana Supreme Court relied on the Clark decision to determine the case of State of Arizona v. Sasse, 245 Mont. 340, 801 P.2d 598, 601 (1990). In Sasse, the mother was married when she had sexual relations with a man who was not her husband. Id. at 599. She gave birth to a child, and the mother's husband was presumed to be the father. When the child was twelve years old, a paternity action was commenced on behalf of the mother and the child against the man with whom the mother had extramarital sex. Id.

[¶ 11.] Montana had a statute providing that a child with a presumed father had to bring an action within five years after the child's birth to declare the nonexistence of the father-child relationship. Id. Montana also had a statute allowing a child with no presumed father to have up to two years after the child reached the age of majority to bring an action. Id. The Montana Supreme Court agreed with the district court's conclusion that the statutes created a "classification which distinguishes for disparate treatment children with presumed fathers and children without presumed fathers." Id.

[¶ 12.] Montana's discriminatory classification was "based on the state's interest in maintaining...