Kaur v. Singh Chawla

• Decision Date: 03 June 1974
• Docket Number: No. 2075--I,2075--I
• Citation: 522 P.2d 1198,11 Wn.App. 362
• Parties: Karen Elizabeth KAUR, also known as Karen Elizabeth Voogd, Appellant, v. Charanjit SINGH CHAWLA, Respondent.
• Court: Washington Court of Appeals

Page 362

11 Wn.App. 362

522 P.2d 1198

Karen Elizabeth KAUR, also known as Karen Elizabeth Voogd, Appellant, v. Charanjit SINGH CHAWLA, Respondent.

No. 2075--I.

Court of Appeals of Washington, Division 1.

June 3, 1974.

Ronald W. Meier, Seattle, for appellant.

Steve Frederickson, Seattle, for respondent.

JAMES, Judge.

(O)nce a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because her natural father has not married her mother.

Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 875, 35 L.Ed.2d 56 (1973). Since Washington, by common law, 'posits' a right of Legitimate children to support by their natural fathers which is as 'judicially enforceable' as a statutory right, we conclude that illegitimate children are also entitled to a 'judicially enforceable right . . . to needed support from their natural fathers . . .'

In Gomez, however, Texas had not chosen to provide illegitimate children with Any right to support. Defendant argues that by RCW 26.24 and RCW 26.20.030, Washington has provided illegitimate children with two statutory methods of obtaining judicial enforcement of their right to support from their natural fathers and that these remedies are exclusive. He makes several arguments in support of this contention.

He first argues that these statutes are in derogation of the common law and, under the rule of strict construction, must be held to provide the exclusive bases for judicial relief. 10 Am.Jur.2d Bastards § 68 (1963). Our Supreme Court rejected a similar argument more than 5 years ago. In Armijo v. Wesselius, 73 Wash.2d 716, 440 P.2d 471 (1968), the court was called upon to decide whether the words 'child or children' designating beneficiaries in RCW 4.20.020, the wrongful death statute, included illegitimate children. It was argued there that the statute was in derogation of the common law and should be strictly construed. The court expressly rejected the rule of strict construction and, recognizing 'a decisive current trend in legislative and decisional law which ignores legitimacy when creating or applying statutes designed to benefit children,' held that the statute included 'illegitimates.' The court observed that:

The reason for this trend is clear. Society is becoming progressively more aware that children deserve proper care, comfort, and protection even if they are illegitimate. The burden of illegitimacy in purely social relationships should be enough, without society adding unnecessarily to the burden with legal implications having to do with the care, health, and welfare of children. As stated in In re Woodward's Estate, (230 Cal.App.2d 113, 118, 40 Cal.Rptr. 781, 784 (1964)):

Modern society shrinks from application of the Old Testament (Exodus 20) commandment 'visiting the iniquity of the fathers upon the children. . . .' Rather we accept the more humanitarian view stated by Judge Leon Yankwich, that 'there are no illegitimate children, only illegitimate parents.'

Armijo v. Wesselius, Supra, 73 Wash.2d at 721, 440 P.2d at 473. The same considerations persuade us to reject strict construction.

Defendant next contends that the filiation procedures are intended to be the exclusive Civil remedy to enforce an illegitimate child's right to support. However, in State v. Russell, 68 Wash.2d 748, 752, 415 P.2d 503 (1966), it is pointed out that the filiation statute does not provide the only method by which paternity can be established and that a putative father can be made responsible for the support of his children 'in every cause where pertinent regardless of the existence of the filiation statutes.' Significantly, the statutory filiation procedure does not, by its terms, purport to provide the Exclusive civil remedy.

Defendant also argues that a legislative intention that the filiation procedure be the exclusive remedy is shown by the 'important protections' which the statute provides for those 'accused' of being the father of a child born out of wedlock. One of these protections is the requirement that any claim thereunder must be brought within 2 years of birth, RCW 26.24.160. Defendant reasons that this limitation was intended to relieve defendants of the potentially onerous burden of defending against accusations after the passage of many years.

In State v. Bowen, 80 Wash.2d 808, 498 P.2d 877 (1972), it is recognized that the filiation statute was designed to encourage an early determination of paternity. In a successful filiation 'prosecution,' a mother recovers her expenses of pregnancy and delivery, RCW 26.24.090, and in no event does she incur liability for court costs, RCW 26.24.080. In a suit under a nonstatutory right, the mother may not obtain these benefits. But an intent to induce the mother to institute an early determination of paternity is Not an intent to proscribe any later determination. As Bowen stated on page 811, 498 P.2d on page 879, the duty to support an illegitimate child

does not expire at the end of the second year of a child's life simply because his mother has failed to bring an action to establish the identity of his father.

Bowen concluded on page 811, 498 P.2d on page 879 that the 2-year statute

does not signify a legislative intent that a putative father should escape liability for child support if a filiation proceeding is not instituted within the 2-year period, inasmuch as there is no similar limitation upon the time within which the prosecutor can bring an action to enforce support under RCW 26.20 (criminal nonsupport).

We read in the 2-year limitation of RCW 26.24.160 no indication of a legislative intent that filiation be the exclusive Civil remedy of an illegitimate child.

Bowen highlights a further compelling reason why the filiation statute cannot be considered the exclusive civil remedy. In that case, it was held that a release negotiated between the mother and the putative father did not constitute a bar to a subsequent filiation proceeding. In so holding, the court determined that a child's right to support could not be waived by its mother. If the filiation statute were the exclusive private remedy, the failure of the mother to make a complaint within 2 years would forever foreclose her child from enforcing its right to support. But the law does not permit one to forfeit another's rights. Nullus jus alienum forisfacere potest. Fleta, lib. 1, c. 28, § 11.

The right of an illegitimate child to assert a claim for parental support is too fundamental to permit its forfeiture by its mother's failure to timely institute a filiation proceeding. Cf. Walker v. Walker, 266 So.2d 385 (Fla.App.1972) And Storm v. None. 57 Misc.2d 342, 291 N.Y.S.2d 515 (1968). The law places no similar barrier to the enforcement of a legitimate child's right.

Defendant finally contends that by involving the prosecuting at...