Miller, In Interest of

• Decision Date: 24 July 1980
• Docket Number: No. 18328,18328
• Parties: In the Interest of Jeremey Alan MILLER, a Child.
• Court: Texas Court of Appeals

Page 332

605 S.W.2d 332

In the Interest of Jeremey Alan MILLER, a Child.

No. 18328.

Court of Civil Appeals of Texas, Fort Worth.

July 24, 1980.

Rehearing Denied Sept. 11, 1980.

Crampton, Crampton & Estrada, and Holly Crampton, Wichita Falls, for appellant.

Roy T. Sparkman, Wichita Falls, for appellee.

OPINION

SPURLOCK, Justice.

This is an appeal from a summary judgment granted defendant in a paternity action involving a constitutional challenge to the one year statute of limitations found in Tex.Family Code Ann. sec. 13.01 ^* (Supp.1980). That statute is as follows: Time Limitation of Suit: "A suit to establish the parent-child relationship between a child who is not the legitimate child of a man and the child's natural father by proof of paternity must be brought before the child is one year old, or the suit is barred."

We reverse and remand.

Suit was brought by Brenda Miller, the natural mother, in the interest of Jeremey Alan Miller. Jeremey was born May 21, 1978. Brenda Miller filed suit on October 11, 1979, alleging that respondent was the natural father of the child. Respondent answered and pled limitations under sec. 13.01 as a bar. The trial court sustained the plea, ordering petitioner's suit dismissed with prejudice.

On appeal Ms. Miller attacks the constitutionality of sec. 13.01 under Article 1, Sections 3 and 19 of the Texas Constitution, Fifth and Fourteenth Amendments to the United States Constitution and the Equal Rights Amendment to the Texas Constitution, alleging denial of due process and unequal protection under the law.

We will initially discuss whether the one year statute of limitations set forth in sec. 13.01 invidiously discriminates between legitimate and illegitimate children so as to deny them equal protection of the law.

At early common law an illegitimate child was considered nullius filius-the son of no one-of no mother; of no father. He was not entitled to support from anyone. Much has changed since then. Modern society shrinks from the application of the Old Testament (Exodus 20:5) commandment "visiting the iniquity of the fathers upon the children ..." as we progress to the more humanitarian view that there are no illegitimate children, only illegitimate parents. As the Court observed in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 1406, 31 L.Ed.2d 768 (1972):

"The status of illegitimacy has expressed through the ages society's condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual-as well as an unjust-way of deterring the parent."

The reason for the trend is clear as society becomes progressively more aware that children, all children, deserve proper care, comfort, and protection. The stigma of illegitimacy imposes its own burdens without adding additional shackles in the form of legal impediments to the securing of the health, care, and welfare of children.

We therefore start with the premise that illegitimate children are not "nonpersons." They are human; alive; legally innocent at birth; and fully deserving of the aspirations our society bestows on their "legitimate" counterparts. They are "persons" within the meaning of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

The classification created by this statute is constitutionally suspect in that it creates separate classes among individuals similarly situated. Implicitly, it recognizes the common law right of legitimates to support from their parents during the entire course of their minority. Equally so, it recognizes the same right in illegitimates, provided, however, that they act within the first year of their existence to establish paternity. (Paternity suits are a prerequisite to child support for an illegitimate child. Texas Dept. of Human Resources v. Delley, 581 S.W.2d 519, 522 (Tex.Civ.App.-Dallas 1979, writ ref'd n. r. e.).) Failure to so act under sec. 13.01 results in illegitimates being forever barred from the right to sue their natural father for child support, a limitation their legitimate counterparts do not share.

Appellant urges that there exists no similar limitation on the right of an illegitimate to sue his natural mother for support. We find that the statute assumes too much in concluding that every child will have knowledge of the identity of its natural mother. The illegitimate may sue to establish maternity (a first step to support) throughout the entire course of his minority. This obviously results in exposing the "illegitimate" mother to greater legal liability than the "illegitimate" father. This court will not indulge in the reckless, romantic notion that mothers are more caring and loving than fathers. While that may be true, it is not a distinction for the judicial system to make. We do conclude that women have every bit as much interest in avoiding "spurious claims" as men; that they would suffer the same difficulties in defending a suit brought after the one year expiration of the statute of limitations.

Speaking in regard to classifications involving illegitimates the Court in Levy v. Louisiana, 391 U.S. 68, 71, 88 S.Ct. 1509, 1511, 20 L.Ed.2d 436 (1968), noted that "(w)hile a State has broad power when it comes to making classifications, it may not draw a line which constitutes an invidious discrimination against a particular class. Though the test has been variously stated, the end result is whether the line drawn is a rational one."

Appellants urge that sec. 13.01 is based upon the "suspect classification" of illegitimacy. Like race and national origin, they assert, illegitimacy is a characteristic determined solely by accident of birth; it is a condition beyond the infant's control; a status that subjects them to a stigma of inferiority and one which denies them access to the benefits accruing to their legitimate counterparts by way of common law.

The Supreme Court in Levy held that under the Equal Protection Clause of the Fourteenth Amendment a State may not create a right of action in favor of children for the wrongful death of a parent and exclude illegitimate children from the benefit of such a right. In Weber the Court found that illegitimate children may not be excluded from sharing equally with other children in the recovery of workmen's compensation benefits for the death of their parent.

Under these decisions, a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally.

The primary constitutional authority in the area of paternity law is Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973). In Texas, both at common law and under the statutes of the State, the natural father has a continuing duty to support his legitimate children. Lane v. Phillips, 69 Tex. 240, 243, 6 S.W. 610, 611 (1887); Tex.Family Code Ann. sec. 4.02 (1979). Though this duty extends beyond dissolution of the marriage (Tex.Family Code Ann. sec. 14.05; Hooten v. Hooten, 15 S.W.2d 141 (Tex.Civ.App.-Texarkana), aff'd at 120 Tex. 538, 40 S.W.2d 52 (1931)); is enforceable on the child's behalf in civil proceedings; is the subject of criminal sanctions (Tex.Penal Code Ann. sec. 25.05 (1974), dealing with criminal nonsupport); and exists despite the fact that the father may not have custody (Hooten ), prior to Gomez, Texas did not recognize any enforceable duty on the part of the biological father to support his illegitimate child. At Texas common law illegitimate children, unlike their legitimate counterparts, had no legal right to support from their fathers. Home of Holy Infancy v. Kaska, 397 S.W.2d 208 (Tex.1965); Bjorgo v. Bjorgo, 391 S.W.2d 528 (Tex.Civ.App.-Amarillo), reversed on other grounds, 402 S.W.2d 143 (1966).

In response to this unequal apportionment of rights, the Court in Gomez, 409 U.S. at p. 538, 93 S.Ct. at p. 875 held that "once 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 its natural father has not married its mother. For a State to do so is 'illogical and unjust.' "

The Texas response was sec. 13.01 which appellant alleges to be unconstitutional. At least two Texas courts of civil appeals have expressly upheld the constitutionality of the statute. In Texas Dept. of Human Resources v. Chapman, 570 S.W.2d 46, 49 (Tex.Civ.App.-Dallas 1978, writ ref'd n. r. e.), the court dispensed with the requirements of Gomez when it concluded that statutes of limitations, such as sec. 13.01, "relate to remedies, and do not destroy fundamental rights." Noting that Gomez mandated that a state may not "absolutely foreclose" the right of an illegitimate child to receive support from its natural father, the Dallas court found the one year "window" sufficient to satisfy...