Locke v. Ladd, 78-230

• Decision Date: 07 March 1979
• Docket Number: No. 78-230,78-230
• Citation: 119 N.H. 136,399 A.2d 962
• Parties: Bruce A. LOCKE v. Joanne L. LADD.
• Court: New Hampshire Supreme Court

Page 962

399 A.2d 962

119 N.H. 136

Bruce A. LOCKE v. Joanne L. LADD.

No. 78-230.

Supreme Court of New Hampshire.

March 7, 1979.

Harold E. Ekstrom, Concord, by brief and orally for plaintiff.

Perkins, Upshall & Robinson, P.A., Concord (Barbara B. DeHart, Concord, orally), for defendant.

GRIMES, Justice.

This case began with a petition by Bruce A. Locke under RSA 460:29 (Supp.1977), seeking to legitimate a child born to Joanne L. Ladd in October 1974. He alleged that he and Joanne had lived as husband and wife since 1970, and had always represented the child as theirs. He further alleged that the parties separated in May 1978, that he has furnished support for the child since the separation, but that Joanne has refused to cooperate in establishing visitation rights for the child. The defendant admits that plaintiff is the father of the child, and that they lived together and represented that the child was theirs. She contends, however, that RSA 460:29 (Supp.1977) violates both the Federal and State Constitutions in that it affords rights to the father that are not afforded to the mother.

The Court (DeClerico, J.) transferred without ruling the following questions:

(A) Whether the provisions of New Hampshire Revised Statutes Annotated 460:29 are in violation of the Fourteenth Amendment to the United States Constitution and of Part First, Article Second of the New Hampshire Constitution; and

(B) Whether it is within the discretion of the Court under New Hampshire Revised Statutes Annotated 460:29 to issue orders relating to child support and visitation rights.

The equal protection clauses of the Fourteenth Amendment to the Constitution of the United States and of part I, article 2 of the New Hampshire Constitution do not require complete equality, but they do require that persons similarly situated be similarly treated. See Opinion of Justices, 115 N.H. 222, 223, 337 A.2d 354 (1975); Belkner v. Preston, 115 N.H. 15, 332 A.2d 168 (1975). If the persons are not similarly situated, however, no equal protection problem is involved. Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 84 L.Ed. 1124 (1940).

RSA 460:29 (Supp.1977) provides that a putative father of a child born out of wedlock may apply to have the child declared legitimate. It further provides that the effect of such a declaration is "to impose upon the father all the obligations which fathers owe to their lawful issue," and "to entitle such child by succession, inheritance or distribution to real and personal property by, through, and from his father and mother as if such child had been born in lawful wedlock." Id. The estate of the child, in case of death and intestacy, is to be transmitted as if he had been born in wedlock.

Defendant argues that the statute denies equal protection because a mother may not file a petition for legitimation under the statute, and because RSA ch. 168-A which permits a mother to petition to have a putative father charged with the support of a child born out of wedlock, prescribes in section 12 (Supp.1977) that such a petition must be brought within two years from the date of birth of said child, while RSA 460:29 (Supp.1977) contains no similar time limitation.

Unlike RSA 460:29 (Supp.1977), RSA ch. 168-A does not provide for the legitimation of the child. It provides only for the support of the child and expense of pregnancy. The statutes, therefore, do not relate to the same thing, although RSA 460:29 (Supp.1977) does establish the obligation of the father for support.

A petition under RSA ch. 168-A may be brought not only by the mother, but by public authorities and others, including private agencies that have furnished expenses of pregnancy, confinement, education, or support. The statute's purpose is twofold: to Establish the father's obligation for child support and the reasonable expenses of the pregnancy; and to Enforce compliance with that obligation. The limitation on the time within which such a petition may be brought serves among others the purpose of limiting the time of anxiety for a man who may or may not be the father of a child born to a woman with whom he has been intimate. It gives the woman and others a reasonable time in which to charge the father with responsibility; but at the same time, it provides a reasonable termination point beyond which men may assume that they are not responsible. The time limit further serves to minimize the special proof problems inherent in paternity actions. See Lalli v. Lalli, --- U.S. ----, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978).

Proceedings under RSA 460:29 (Supp.1977) are instituted primarily to legitimate a child, and not for the purpose of forcing support obligations on a man, or anyone else. By beginning those proceedings the father voluntarily assumes the support obligations. RSA 460:29 (Supp.1977) imposes no additional support obligations upon the mother of the child. Her situation is in no way similar to that of the father under RSA ch. 168-A, and equal protection is not involved.

Nor is the mother denied equal protection because she cannot bring a petition under RSA 460:29 (Supp.1977). No rights are given to the father under that statute which the mother does not already have under RSA 561:4 and :5, which provide for the child to inherit from the mother and her from the child. Even if there were a denial of equal protection on this ground, the remedy would not be to strike down the statute, but rather to extend the right to the mother, a remedy defendant neither seeks nor needs. See Holt Civic Club v. Tuscaloosa, --- U.S. ----, 99 S.Ct. 383, 58 L.Ed.2d 292 (1978).

Moreover, even if the persons were similarly situated, which they are not, it is not the lack of a time limitation in RSA 460:29 (Supp.1977), but rather the existence of the time limitation in RSA 168-A:12 (Supp.1977) that imposes the alleged inequality. The remedy, therefore, would be to attack the limitation imposed in the latter statute rather than to invalidate RSA 460:29 (Supp.1977). The answer to the first question transferred is "No." RSA 460:29 (Supp.1977) is not in violation of the fourteenth amendment to the United States Constitution or part I, article 2 of the New Hampshire Constitution.

The second question asks if the court has discretion under RSA 460:29 (Supp.1977) to issue orders relating to child support and visitation rights. The statute itself gives the court no such authority. Furthermore, it has been held that the superior court has no authority to award Custody absent pending or possible divorce or separation proceedings and that RSA 491:7 confers no independent jurisdiction. Leclerc v. Leclerc, 85 N.H. 121, 155 A. 249 (1931). The Leclerc case and others like it were decided under RSA...