J. M. S. v. Benson

• Decision Date: 30 September 1980
• Docket Number: No. 78-246,78-246
• Citation: J. M. S. v. Benson, 297 N.W.2d 18, 98 Wis.2d 406 (Wis. 1980)
• Parties: , 19 A.L.R.4th 1074 J. M. S., by his Guardian ad litem, Daphne Webb, Plaintiff-Respondent, v. Robert BENSON, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 18

297 N.W.2d 18

98 Wis.2d 406, 19 A.L.R.4th 1074

J. M. S., by his Guardian ad litem, Daphne Webb, Plaintiff-Respondent, v. Robert BENSON, Defendant-Appellant-Petitioner.

No. 78-246.

Supreme Court of Wisconsin.

Argued Sept. 3, 1980.

Decided Sept. 30, 1980.

Bruce A. Pagel (argued) and Haukom & Ritchie Madison, on brief, for defendant-appellant-petitioner.

Daphne Webb (argued) and Jacobs, Webb & Weiden Madison, on brief, for plaintiff-respondent.

COFFEY, Justice.

Robert Benson (defendant-petitioner) appeals from a decision of the court of appeals ¹ holding that an illegitimate child, J. M. S. (plaintiff-respondent) can maintain an action for a declaratory judgment to establish his paternity.

The plaintiff and his mother as next friend ² privately commenced this action, i.e., without the participation of the district attorney, by the filing of a summons and complaint with the Dane County clerk of court on January 24, 1977. ³ The complaint alleged that Benson is the father of the plaintiff born on March 14, 1965 (more than 11 years prior to the commencement of the action), that Benson and the plaintiff's mother are not and never have been married to each other and that plaintiff's mother is not "capable" of his support. ⁴

In the complaint the plaintiff asks the court for a judgment declaring Benson to be the father and awarding past support in the amount of $20,000 with future support and attorney's fees.

The defendant moved to dismiss this claim on the grounds that it fails to state a claim upon which relief may be granted. In particular, Benson argued that under the common law in Wisconsin a father owes no duty of support to an illegitimate child. Further, he contended that sec. 806.04, Stats., the declaratory judgment statute "is only remedial and does not establish or change substantive rights," i.e., those of an illegitimate child for support from a putative father, and that the action was barred because the statute of limitations for paternity actions in sec. 893.195, Stats., had run.

On November 2, 1977 the trial court conducted a hearing on the issue of Benson's statute of limitations defense. At the hearing it was established that in the spring of 1967, some 2 years after the plaintiff's birth, the plaintiff's mother contacted the Dane County district attorney and attempted to initiate paternity proceedings against Benson. The district attorney refused to commence the statutory action as he perceived it to be frought with substantial legal problems. Primarily, he noted that the plaintiff was conceived when the mother was still legally married and thus the district attorney at trial would have to overcome the legal presumption that the mother's husband at the time of conception was the father. See : secs. 891.39, 52.35 and 52.355, Stats. Therefore, the district attorney would not only have to prove that the presumptive father was not the male parent but also establish Benson was the father. The district attorney also recalled that there was an issue of the legality of the mother's out-of-state divorce and that this would create problems by bringing collateral matters into the paternity prosecution.

In the spring of 1967 the plaintiff's mother was informed of the district attorney's decision not to prosecute and she made no further attempt to persuade the district attorney to commence a paternity action.

The trial court denied Benson's motion to dismiss and he appealed. The appellate court affirmed the trial court's denial of Benson's motion to dismiss and Benson now petitions this court for review of the appellate court's decision.

Issue

May an illegitimate child by his or her next friend or guardian ad litem commence and maintain a paternity action to establish his parent by a declaratory judgment action, thus independent of the paternity statutes, sec. 52.21 through 52.45, Stats.?

The petitioner argues that paternity actions are purely statutory proceedings and cannot be commenced or maintained without conforming to the paternity statutes, secs. 52.21 through 52.45, Stats. These provisions permit the mother to initiate paternity proceedings by complaint to the district attorney. Sec. 52.25, Stats. In cases where a woman does not make a complaint, the district attorney may issue a complaint on his own motion if he determines that a "child born out of wedlock" is or is likely to become a public charge. Sec. 52.24, Stats.

The statutes provide that a ch. 52 paternity proceeding must be commenced within five years of the date of the birth of the child. Sec. 893.195, Stats.

The court of appeals correctly noted that the paternity statutes make no provision for a child to independently establish his or her paternity:

"It is only if the mother is dead, becomes insane, cannot be found within the jurisdiction or fails to prosecute that the child is substituted as a complainant, as provided in sec. 52.35, and the case is then prosecuted (by the district attorney)."

Both the trial and appellate courts acknowledged that strict adherence to ch. 52 for the commencement and maintenance of paternity proceedings would require dismissal of plaintiff's action as it was neither commenced by the districts attorney ⁵ nor brought within 5 years of the plaintiff's birth. State ex rel. Smith v. Chicks, 70 Wis.2d 833, 235 N.W.2d 694, 239 N.W.2d 9 (1975); Sec. 893.195, Stats.

The trial and the appellate court, relying on Slawek v. Stroh, 62 Wis.2d 295, 304, 215 N.W.2d 9 (1974), held that an illegitimate child's right to determine his natural father is analogous to the constitutional right of a natural father to establish parentage. Thus, the trial and the appellate courts agreed with his contention that he was entitled to a legal forum, namely, a declaratory judgment action to litigate his claim. Therefore, the court must look to both the underpinnings of Slawek and the nature of the paternity statutes to resolve the present controversy. We turn first to the paternity statutes.

It is well established that paternity proceedings in Wisconsin are purely statutory in origin. State ex rel. Lyons v. DeValk, 47 Wis.2d 200, 203, 177 N.W.2d 106 (1970); State ex rel. Sowle v. Brittich, 7 Wis.2d 353, 356, 358, 96 N.W.2d 337 (1959); State ex rel. Wall v. Sovinski, 234 Wis. 336, 341, 291 N.W. 344 (1940); State ex rel. Lang v. Civil Court, 228 Wis. 411, 414, 280 N.W. 347 (1938); Goyke v. State, 136 Wis. 557, 559, 117 N.W. 1027, 117 N.W. 1126 (1908); Baker v. State, 56 Wis. 568 573, 14 N.W. 718 (1883). Accordingly, they must be commenced by the district attorney in the manner prescribed by the legislature. State ex rel. Chicks v. Smith, supra ; sec. 52.25, Stats. Moreover, where statutes provide a specific right to establish paternity, and the procedures to enforce the paternity judgment, the course prescribed in the statutes must, in the absence of constitutional defect, be considered exclusive. As early as 1893 this court recognized the exclusivity doctrine as pertaining to paternity statutes when creating a new right combined with a specific remedy. Pierstoff v. Jorges and another, 86 Wis. 128, 138, 56 N.W. 735 (1893). Likewise, in worker's compensation cases where the legislature has seen fit to prescribe statutory classifications and requirements for eligibility for death benefits, this court relied on the exclusivity doctrine and held such enactments are the sole means of qualifying for compensation in the following language:

" '. . . Where the pathway to recovery has been narrowed by legislation, it is the legislature which alone can broaden that pathway.' " (citation omitted). Larson v. ILHR Department, 76 Wis.2d 595, 621, 252 N.W.2d 33 (1977).

Again, in In re Estate of Blumreich, 84 Wis.2d 545, 555, 267 N.W.2d 870 (1978) this court reaffirmed the exclusivity doctrine holding that the criteria prescribed in sec. 852.05(1), Stats., for establishing paternity and the right to inherit from the putative father are exclusive.

The plaintiff is asking this court to create a legal hybrid which would allow illegitimate children to bring and maintain paternity actions independent of their mother or the district attorney, notwithstanding the fact that the legislature has spoken on the question of paternity and has set forth a detailed set of procedure in ch. 52, Stats. As already noted, the legislative enactments applicable as of this date do not allow for an independent commencement or maintenance of a paternity proceeding by an illegitimate child. ⁶ We can understand the plaintiff's attempt to seek a declaratory judgment as a ch. 52 proceeding would have been subject to the bar of the statutes of limitations in sec. 893.195, Stats. We also recognize that the essence of the plaintiff's claim is that it is unfair to exclude the illegitimate child from being allowed to bring the claim, but we disagree with this contention, for not only is the illegitimate child concerned with the question of paternity, but so is the public, the mother and the father. Francken v. State, 190 Wis. 424, 209 N.W. 766 (1926).

In this case, the district attorney, exercising the discretion granted by the legislature, declined to commence a paternity action initiated by the mother pursuant to sec. 52.25, Stats. This court has frequently held that the district attorney is clothed with broad discretion in determining whether to proceed with a prosecution. See: City of Janesville v. Wiskia, 97 Wis.2d 473, 293 N.W.2d 522 (1979) and cases cited therein. The district attorney's refusal to commence the action was made only after a thorough investigation which revealed that serious problems would arise at trial, not the least of which was the mother's being married to another man other than the defendant at the critical time of conception. Consequently, under the law, her husband, the other man, was the presumptive father. See : secs. 891.39, 52.35 and 52.355, Stats. The record clearly demonstrates that the district attorney's action in...