In re State ex rel. Reitenour

• Citation: 807 A.2d 1259,148 N.H. 358
• Decision Date: 18 September 2002
• Docket Number: No. 2001–409.,2001–409.
• Court: Supreme Court of New Hampshire
• Parties: In the Matter of STATE of New Hampshire ex. rel. Vickie REITENOUR and Wendell Montgomery.

148 N.H. 358

807 A.2d 1259

In the Matter of STATE of New Hampshire ex. rel. Vickie REITENOUR and Wendell Montgomery.

No. 2001–409.

Supreme Court of New Hampshire.

Submitted July 25, 2002.

Opinion Issued Sept. 18, 2002.

Krans and Krans, of Dover (Hamilton R. Krans, Jr. on the brief), for the petitioner.

Coughlin, Rainboth, Murphy & Lown, P.A., of Portsmouth (Kenneth D. Murphy on the brief), for the respondent.

Philip T. McLaughlin, attorney general (Suzan M. Lehmann, assistant attorney general, on the brief), for the State, as amicus curiae.

DUGGAN, J.

The respondent, Wendell Montgomery, appeals a decision of the Portsmouth Family Division (DeVries , J.) ordering him to pay retroactive child support dating to the birth of his minor child who was born out of wedlock. We affirm.

In March 2000, the department of health and human services (DHHS) filed an action under RSA chapter 168–A (2002), the Uniform Act on Paternity, on behalf of the petitioner, Vickie Reitenour, alleging that the respondent was the father of an infant born out of wedlock on July 31, 1986. DHHS requested the court to declare the respondent to be the father of the child and to order him to pay both prospective and retroactive child support. DHHS subsequently moved to amend its petition to include claims under RSA chapter 546–B (Supp.2001), the Uniform Interstate Family Support Act, which the court granted. After a hearing, the court ordered the respondent to pay both prospective and retroactive child support, and granted the petitioner reimbursement for the expenses associated with bringing the action.

Although the respondent does not dispute that he is the father of the child, he argues that the trial court erred in: (1) ordering retroactive child support; (2) not finding the petitioner guilty of laches; (3) admitting into evidence two letters from state agencies; (4) not requiring that any retroactive payments be held in trust for the child; and (5) not requiring specific receipts and bills to support an award of costs and attorney's fees. We address each argument in turn.

The respondent first argues that neither RSA chapter 168–A nor RSA chapter 546–B authorizes a court to order retroactive child support. RSA chapter 168–A sets forth the procedure by which a mother, child, or public authority chargeable by law with the support of the child may determine the paternity of a child born out of wedlock. See RSA 168–A:2 ; see also Opinion of the Justices, 131 N.H. 573, 576, 558 A.2d 454 (1989). Once paternity has been established, the father of a child born out of wedlock is liable for the "reasonable expense of the mother's pregnancy and confinement and for the education and necessary support of the child." RSA 168–A:1. The plain language of this statute indicates a legislative intent to make fathers retroactively liable for some expenses because once paternity has been established, the father of a child born out of wedlock may be liable for past expenses associated with the mother's pregnancy and confinement. See id. Additionally, the applicable statute of limitations permits proceedings to be brought within eighteen years of the date of birth of the child in question. See RSA 168–A:12. As this action is not barred by the statute of limitations, it would appear that the trial court was authorized to order the respondent to pay retroactive child support.

The respondent does not dispute that the petitioner was permitted to bring this paternity action nor does he dispute the trial court's authority to order him to pay for the necessary support and education of his child. Instead, he argues that "[t]he ability of a mother to commence a paternity action is not synonymous with the ability to obtain eighteen (18) years of retroactive child support." Thus, while the petitioner was permitted to bring an action under this statute to determine paternity and to establish his prospective child support obligations, the respondent argues that RSA chapter 168–A "does not contain language which would allow child support to be paid retroactively to the birth of the child."

In support of this argument, the respondent points to Maine's Uniform Act on Paternity, which provides an eighteen-year statute of limitations to establish paternity, yet specifically limits a father's liability for past education and support to the six-year period preceding the commencement of an action. See Me.Rev.Stat. Ann. tit. 19–A, § 1554 (West 1998). A review of the legislative history of RSA chapter 168–A reveals that our legislature considered adopting a similar statute, but did not do so. See HB 663 (1971).

When HB 663, an act adopting the Uniform Act on Paternity, was introduced in the house, proposed RSA 168–A:3 limited a father's liability for past education and necessary support to "a period of four years next preceding the commencement of a proceeding to recover said expenses." (Emphasis added.) The senate, however, proposed amending RSA 168–A:3 by substituting the words "one year" for the words "four years," so that the proposed statute as amended read: "The father's liabilities for past education and necessary support are limited to a period of one year next preceding the commencement of a proceeding to recover said expenses." N.H.S. Jour. 1647–50 (1971) (emphasis added). The senate also added RSA 168–A:13, which contained a statute of limitations that stated: "No proceeding under this chapter shall be maintained unless commenced within one year of the date of birth of the child in question." In explaining these proposed amendments, Senator Nixon stated that they

would restrict the liability of the alleged father in the instances of a child born out of wedlock for a period of one year from the date of birth. The original bill would have extended his liability exposure to four years. The thinking behind this amendment is that an alleged father should not have to be kept in suspense for a 4 year period awaiting the mother's action to bring suit to have a declaration of his responsibility determined upon.

N.H.S. Jour . at 1649. Obviously, this legislative history illustrates that the legislature was aware of the issue now before us. Cf . Wigginton v. Com. ex rel. Caldwell, 760 S.W.2d 885, 886 (Ky.Ct.App.1988).

Nonetheless, the senate eventually removed RSA 168–A:3 and instead opted to include only the statute of limitations. In explaining this change, Senator Koromilas stated: "There was an amendment put in by the Senate and there was some misunderstanding with respect to the limitations. We put an additional limitation to within one year of the birth of the child conceived out of wedlock. We took out a section which was inconsistent with that limitation." N.H.S. Jour .1991 (1971). As finally passed, RSA 168–A:3 did not specifically limit the time during which a father could be liable for past education and support. See Laws 1971, ch. 530:1. Instead, the only limitation on a father's liability was contained in the statute of limitations. See id. By failing to include a specific provision limiting a father's liability for past education and support, the legislature intended the only restriction on a petitioner's ability to collect retroactive child support to be the statute of limitations. When the legislature later amended the statute of limitations to eighteen years, it did not add a provision limiting the father's liability for past education and support. Thus, so long as a proceeding is brought within the applicable statute of limitations, we conclude that the trial court has discretion to order retroactive child support back to the child's birth.

This interpretation of the statute has been applied in prior cases. See State v. Weeks, 134 N.H. 237, 242–43, 590 A.2d 614 (1991) ; Joann P. v. Gary W., 122 N.H. 104, 106, 441 A.2d 1161 (1982). We have explained that a trial court may hold a father responsible for repaying all public assistance benefits made during the child's life. See Weeks, 134 N.H. at 242, 590 A.2d 614. The only statutory limitation on such recovery has been deemed to be the statute of limitations. See id.; see also Joann P., 122 N.H. at 106, 441 A.2d 1161.

The respondent argues that this interpretation "would invite mothers to wait and file paternity actions years after the birth when evidence and witnesses may be stale." This danger, however, is limited by the fact that if a respondent can show that the delay in commencing suit is unreasonable and prejudicial, the action may be barred by laches. See Weeks, 134 N.H. at 243, 590 A.2d 614. As we conclude that RSA chapter 168–A authorizes a court to order retroactive child support, we need not undertake a separate analysis under RSA chapter 546–B.

We next address whether the petitioner's suit is barred by laches. Laches may apply to paternity actions filed prior to the expiration of the statute of limitations, but only if the respondent shows that the delay was prejudicial and unreasonable. See id. at 240, 590 A.2d 614.

Laches is not triggered by the mere passage of time, but may be appropriate where a suit has been unreasonably delayed and the delay has resulted in unfair prejudice. In determining whether the doctrine should apply to bar a suit, the court should consider the knowledge of the plaintiffs, the conduct of the defendants, the interests to be vindicated, and the resulting prejudice. This inquiry hinges upon the particular facts of each case.

Miner v. A & C Tire Co., 146 N.H. 631, 633, 776 A.2d 1286 (2001) (quotations and citations omitted). A trial court has wide latitude in deciding whether the circumstances justify its application. See id. "Unless we find that the trial court's decision is unsupported by the evidence or erroneous as a matter of law, we will not overturn it." Id.

In support of his argument that an award of retroactive child support should be barred by laches, the respondent notes that no action was brought until fourteen years after the birth of the child, and that the petitioner "admitted...