Moore v. McNamara

• Decision Date: 12 August 1986
• Citation: 513 A.2d 660,201 Conn. 16
• Court: Connecticut Supreme Court
• Parties: Sharon MOORE v. Howard McNAMARA.

Page 660

513 A.2d 660

201 Conn. 16

Sharon MOORE v. Howard McNAMARA.

Supreme Court of Connecticut.

Argued May 6, 1986.

Decided Aug. 12, 1986.

Michele R. Celentano, Milford, for appellant (defendant).

Stephen J. McGovern, Asst. Atty. Gen., with whom were Charles Costanzo, Guilford, and, on brief, Joseph I. Lieberman, Atty. Gen., for appellee (state).

Before PETERS, C.J., and HEALEY, SHEA, DANNEHY and SANTANIELLO, JJ.

SHEA, Judge.

This is an appeal from the judgment of the Superior Court finding that the defendant Howard McNamara, is the father of the named plaintiff's child, and ordering the defendant to pay weekly support until that child's eighteenth birthday, as well as arrearages to the state of Connecticut. On appeal, the defendant claims the trial court erred in concluding: (1) that the three year limitation upon the initiation of paternity actions prescribed by General Statutes § 46b-160, in effect at the time of the trial court's judgment, is unconstitutional, and (2) that blood grouping and human leukocyte antigen (HLA) test results are admissible to establish paternity. Because § 46b-160 has been amended to eliminate the three year statute of limitations, we need not reach the constitutional issue. Further, we hold that the trial court correctly construed § 46b-168 not to bar the inclusive use of blood grouping and HLA test results.

On June 15, 1982, Sharon Moore brought a paternity action against Howard McNamara alleging that he was the father of the child born to her on December 10, 1978. The defendant pleaded in a special defense that General Statutes § 46b-160 ¹ barred the action because the child was more than three years old when the suit was filed. The state, having assumed its party status pursuant to § 46b-160, because it had been paying lying-in expenses for the mother and child as well as support and maintenance for the child; see Lavertue v. Niman, 196 Conn. 403, 406, 493 A.2d 213 (1985); replied that the three year limitation on paternity actions violated the equal protection clause of the fourteenth amendment to the United States constitution. On April 25, 1984, the court, Jackaway, J., denied the defendant's motion for summary judgment and held that Connecticut's three year statute of limitations was unconstitutional. 478 A.2d 634.

On May 7, 1984, the defendant moved for a court order pursuant to General Statutes § 46b-168 ² requiring that he, the mother, and the child submit to blood tests. At trial the plaintiff sought to admit in evidence as an exhibit the results of the HLA and other blood tests prepared by Herbert Silver, a physician. These results were offered to show the statistical likelihood of the defendant being the father of the child. The defendant objected to the admission of the results, claiming them to be inadmissible because § 46b-168 states that the results of blood grouping tests "shall be admissible in evidence only in cases where such results establish definite exclusion of the putative father...." The trial court, Reilly, J., overruled the defendant's objection.

Based on the testimony, the blood test results, and a visual comparison of the child with the defendant, the trial court found that the defendant is the father of the child. ³ The court ordered the defendant to pay $15 per week in child support, an additional $10 per week to the state toward an arrearage of $11,687.93, and an additional $5 per week to the plaintiff's attorney until the sum of $2187.50 is paid in full.

I

We need not address the defendant's first claim that the trial court erred in concluding that the three year limitation upon the initiation of paternity actions prescribed by General Statutes § 46b-160 is unconstitutional. This court has a basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case. See generally Rescue Army v. Municipal Court, 331 U.S. 549, 568-74, 67 S.Ct. 1409, 1419-22, 91 L.Ed. 1666 (1947); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-47, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); Negron v. Warden, 180 Conn. 153, 166, 429 A.2d 841 (1980). "The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity." Parker v. Los Angeles, 338 U.S. 327, 333, 70 S.Ct. 161, 163, 94 L.Ed. 144 (1949). "Appropriate deference to a coordinate branch of government exercising its essential functions demands that we refrain from deciding constitutional challenges to its enactments until the need to do so is plainly evident." State v. Madera, 198 Conn. 92, 105, 503 A.2d 136 (1985). Effective October 1, 1985, the state legislature amended § 46b-160 to increase the statute of limitations for asserting paternity claims from three years to eighteen years. ⁴ Public Acts 1985, No. 85-548, § 3. It would be inappropriate for this court to resolve the constitutional issue the parties have briefed without first deciding whether the new eighteen year statute of limitations contained in Public Acts 1985, No. 85-548 is applicable to this case, thus making unnecessary a determination of the validity of the former three year statute. ⁵ The issue then becomes whether the new eighteen-year statute of limitations is to be applied retroactively to the defendant.

It is a rule of construction that legislation is to be applied prospectively unless the legislature clearly expresses an intention to the contrary. See Enfield Federal Savings & Loan Assn. v. Bissell, 184 Conn. 569, 571, 440 A.2d 220 (1981). The rule is rooted in the notion that it would be unfair to impose a substantive amendment that changes the grounds upon which an action may be maintained on parties who have already transacted or who are already committed to litigation. See Lavieri v. Ulysses, 149 Conn. 396, 401, 180 A.2d 632 (1962); E.M. Loew's Enterprises, Inc. v. International Alliance, 127 Conn. 415, 418, 17 A.2d 525 (1941). In civil cases, however, unless considerations of good sense and justice dictate otherwise, it is presumed that procedural statutes will be applied retrospectively. See State v. Paradise, 189 Conn. 346, 351, 456 A.2d 305 (1983); Lavieri v. Ulysses, supra. Procedural statutes have been traditionally viewed as affecting remedies, not substantive rights, and therefore leave the preexisting scheme intact. See, e.g., Sherry H. v. Probate Court, 177 Conn. 93, 100-102, 411 A.2d 931 (1979).

"A statute of limitations is generally considered to be procedural, especially where the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action. Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 195, 286 A.2d 308 (1971)." Collucci v. Sears, Roebuck & Co., 585 F.Sup. 529, 532 (D.C.Conn.1984). This is so because it is considered that the limitation merely acts as a bar to a remedy otherwise available. Lewis v. Rosen, 149 Conn. 734, 735, 181 A.2d 592 (1962). Where a statute of limitations is procedural, it is subject to waiver; unless specifically pleaded it is deemed waived and the remedy continues beyond the prescribed period. See Orticelli v. Powers, 197 Conn. 9, 15, 495 A.2d 1023 (1985). Where, however, a specific limitation is contained in the statute that creates the right of action and establishes the remedy, the remedy exists only during the prescribed period and not thereafter. In this situation, the statute of limitations is considered substantive or jurisdictional rather than procedural or personal, and therefore may not be waived. Id.; L.G. DeFelice & Son, Inc. v. Wethersfield, 167 Conn. 509, 511, 356 A.2d 144 (1975).

At common law there was no remedy to compel a putative father to contribute to the support of his illegitimate offspring. One commentator explained: "At Common Law neither the mother nor putative father is liable to maintain a natural child. The right of custody being absent, the correlative duty of maintenance was absent also. The child of nobody was as regards its support the child of the people, and the people in the shape of the overseers had to undertake its succour." W. Hooper, The Law of Illegitimacy (1911), pp. 135-36. ⁶ In an early legislative rejection of the common law rule that an illegitimate child was nullius filius, Connecticut enacted its "statute of bastardy." ⁷ In Hinman v. Taylor, 2 Conn. 357 (1817), the court stated: "A suit for the maintenance of a bastard child is a statutory process sui generis.... The statute creates a right to commence and prosecute a civil suit...." Id., 360.

Because paternity statutes derogated from the common law and thus created the right of action, statutes of limitations within them were considered substantive and jurisdictional. ⁸ It can no longer be said, however, that the right of action in Connecticut in paternity suits does not derive from the common law. The common law is generally described as "those principles, usage, and rules of action applicable to the government and security of persons and property which do not rest for their authority upon any express and positive declaration of the will of the legislature." Bishop v. United States, 334 F.Sup. 415, 418 (S.D.Tex.1971). See State v. Muolo, 118 Conn. 373, 378, 172 A. 875 (1934); Beardsley v. Hartford, 50 Conn. 529, 541 (1883). The United States Supreme Court in Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), added to the common law its holding 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." Id., 538, 93 S.Ct. 874. Thus, because the father's obligation to support his minor legitimate child is created at common law; White v. White, 138 Conn. 1, 5, 81 A.2d 450 (1951); Bohun v....