In Interest of W. M. V.

• Decision Date: 13 July 1978
• Docket Number: No. 9445,9445
• Citation: 268 N.W.2d 781
• Parties: In the Interest of W. M. V. Clarence O. OHLSEN, Director of Grand Forks County Social Service Board and A. M. V., Petitioners and Appellants, v. J. S., Respondent and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 781

268 N.W.2d 781

In the Interest of W. M. V.

Clarence O. OHLSEN, Director of Grand Forks County Social

Service Board and A. M. V., Petitioners and Appellants, v. J. S., Respondent and Appellee.

Civ. No. 9445.

Supreme Court of North Dakota.

July 13, 1978.

Jay H. Fiedler, of Letnes, Marshall & Hunter, Grand Forks, for petitioners and appellants; argued by Steven A. Hanson, Law Student.

Wayne K. Stenehjem and Thomas J. Kuchera, Grand Forks, for respondent and appellee; argued by Thomas Kuchera.

Sherrilynn Sperling Smith, Asst. Atty. Gen., Bismarck, for the Social Service Board of North Dakota, amicus curiae.

ERICKSTAD, Chief Justice.

This is an appeal by Clarence O. Ohlsen, director of the Grand Forks Social Service Board, as guardian ad litem for W. M. V., a minor, from a summary judgment granted by the Grand Forks County District Court dismissing his action to establish the legal paternity of W. M. V. and to obtain an order requiring the putative father, J. S., to contribute to the support of W. M. V.

W. M. V. was born out of wedlock on April 7, 1971. His mother has never been married and no man has formally acknowledged paternity of W. M. V. No action to determine paternity was ever commenced by the mother of W. M. V. On March 16, 1977, Clarence O. Ohlsen, as duly appointed guardian ad litem of W. M. V., commenced an action by service of process on J. S. to establish the legal paternity of W. M. V. and to obtain an order requiring J. S. to contribute to the support of W. M. V. This action was brought under the guidelines of Chapter 14-17, N.D.C.C., and therefore the mother of W. M. V., A. M. V., was joined as a party pursuant to Section 14-17-08, N.D.C.C.

In J. S.'s answer to the petition, among other things, he raised the affirmative defense that the action was barred by the statute of limitations and by laches. Subsequently, J. S. made a motion to dismiss the action based upon his allegation that the action was barred by the statute of limitations and by laches. A hearing on that motion was held on June 28, 1977, and on September 20, 1977, the district court issued a memorandum decision ordering that the motion to dismiss be granted. The district court, pursuant to Rule 12(c), N.D.R.Civ.P., treated the motion to dismiss as a motion for summary judgment under Rule 56, N.D.R.Civ.P., and, accordingly, a judgment was entered on October 24, 1977. The relevant part of that judgment reads:

"IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the Respondent, (J. S.), be and is hereby granted a Judgment as a matter of law upon the determination that the applicable statute of limitations as provided in Chapter 32-36 of the North Dakota Century Code, had expired prior to the commencement of said action."

It is from this judgment that the guardian ad litem of W. M. V. appeals to this court. He contends that the applicable law is the Uniform Parentage Act, Chapter 14-17, N.D.C.C., enacted in 1975 by the North Dakota Legislature (S.L.1975, Ch. 130) and not the statute of limitations contained in Chapter 32-36, N.D.C.C., which was repealed by the legislature in 1975 (S.L.1975, Ch. 130, § 28). He further contends that, even if Chapter 32-36, N.D.C.C., were applicable, its application in this case to dismiss the action would be a denial of due process and equal protection under both the United States Constitution and the State Constitution of North Dakota. Finally, the guardian ad litem contends that Section 32-36-09, N.D.C.C., even if applicable, was not intended by the legislature to be a limitation on the time for bringing an action to determine paternity, but only as a limitation on the time for bringing an action to enforce the support obligation of the father of a child born out of wedlock.

We agree with the guardian ad litem that the law to be applied in this case is Chapter 14-17, N.D.C.C., the Uniform Parentage Act, and that the action is, therefore, not barred by the statute of limitations contained in Chapter 32-36, N.D.C.C. Therefore, we will not discuss the constitutional issues raised by the guardian ad litem nor the proper interpretation of Section 32-36-09, N.D.C.C., as raised by the guardian ad litem in his final issue.

The putative father, J. S., contends that Chapter 14-17, N.D.C.C., cannot properly be applied in this case where W. M. V. was born on April 7, 1971, which is prior to the effective date of Chapter 14-17, N.D.C.C., July 1, 1975. He contends that we would violate Section 1-02-10, N.D.C.C., if we were to hold the Uniform Parentage Act applicable. That section reads:

"Code not retroactive unless so declared. No part of this code is retroactive unless it is expressly declared to be so."

J. S. contends there is no language in Chapter 14-17, N.D.C.C., expressly declaring that Chapter 14-17, N.D.C.C., is to be applied retroactively, that is, no language in that chapter saying that it is to apply to persons born prior to the effective date of the act, and that, therefore, it cannot be so applied.

We disagree. We do not interpret Section 1-02-10, N.D.C.C., to require that a statute or act contain the word "retroactive" in order for it to be applied to facts occurring prior to the effective date of the statute or act. J. S. has cited no cases which require that explicit language, and we have found no such case in our own research. Instead, this court, in determining whether or not a statute could be applied retroactively, has looked at the language of the statute to determine the legislative intent.

In Monson v. Nelson, 145 N.W.2d 892 (N.D.1966), the question before us was whether or not an amendment to the Unsatisfied Judgment Fund Act was applicable to an accident which occurred prior to the effective date of the amendment. The appellees, in Monson, argued that if the legislature had intended to exclude accidents occurring prior to the effective date of the amendment from being affected by the amendment, such an exclusion would have been specifically enumerated. We rejected the argument that silence constituted an express declaration that the provisions of the amendment should operate retroactively. In Syl. PP 4, 5, and 6 of Monson, we stated the proper test to be applied to determine whether or not a statute can be applied retroactively.

"4. An act of the legislature is presumed to be prospective unless the legislature clearly manifests a contrary intention. § 1-02-10, N.D.C.C.

"5. An amendatory act, like other legislative enactments, does not take effect prior to the time of passage, and the new or changed portions have no application to prior transactions unless an intent to the contrary is expressed in the act or clearly implied from its provisions.

"6. Here the amendment does not express an intent by the legislature by express words nor by implication from its provisions that the amendment shall be applied retroactively to claims accruing prior to the effective date of the amendment." 145 N.W.2d at 894.

In Gimble v. Montana-Dakota Utilities Co., 77 N.D. 581, 44 N.W.2d 198 (1950), the question before this court was whether or not an amendment to the Workmen's Compensation Act was applicable to an injury which occurred prior to the effective date of the amendment. In Syl. P 1 of that case, this court said:

"1. It is an established rule of statutory construction that a legislative act is presumed to be prospective unless the legislature clearly manifests a contrary intention." 77 N.D. at 581, 44 N.W.2d at 199.

In Gimble, this court looked at the language of the amendment and its legislative history and concluded that the legislature intended the amendment to be only prospective in its operation.

A third North Dakota case particularly relevant to the issue before us in this case is In re Berg's Estate, 72 N.D. 52, 4 N.W.2d 575 (1942). This court had before it the question of whether or not a statute enacted in 1917 was applicable to legitimate a child born prior to the effective date of the statute. This court examined the language of the new statute, especially the clause "but all children hereafter born in this state shall be deemed legitimate," and said:

"Thus considering the act as a whole in the light of its title, and giving consistent and harmonious effect to all its provisions, we must hold that the word 'child' as used in it means 'infant offspring' and so the operation of the statute was intended to be prospective only." 72 N.D. at 62, 4 N.W.2d at 580.

From these cases it is clear that, in order to determine whether or not the statute is retroactive, we must examine the language of the statute and determine whether or not the legislature clearly manifested an intention that the statute be retroactive in its operation. If this intention is not clearly manifested, either expressly or impliedly, then the statute is to be only prospective in its operation. See Wolf v. North Dakota Workmen's Compensation Bureau, 267 N.W.2d 785 (N.D.1978), and Young(s) v. White, 267 N.W.2d 799 (N.D.1978), for the most recent cases in which we analyzed specific statutes and concluded that they had only prospective application.

The language of the Uniform Parentage Act which manifests the intention of the legislature to apply the act retroactively, that is, to children born prior to the effective date of the act, is found in Section 14-17-06, N.D.C.C. The relevant part of that section provides:

"An action to determine the existence of the father and child relationship as to a child who has no presumed father under section 14-17-04 may not be brought Later than three years after the birth of the child, or later than three years after July 1, 1975, whichever is later. However, an action brought by or on behalf of a child whose paternity has not been determined is not barred until three years after the child reaches the age of majority. . . . " (Emphasis added.) § 14-17-06, N.D.C.C.

If the legislature intended the act to apply only to children born after the effective date of the act, ...