Moore v. McNamara

• Citation: 478 A.2d 634,40 Conn.Supp. 6
• Decision Date: 26 April 1984
• Docket Number: No. FA6-4663,No. 6,FA6-4663,6
• Court: Superior Court of Connecticut
• Parties: Sharon MOORE v. Howard McNAMARA.

Page 634

478 A.2d 634

40 Conn.Supp. 6

Sharon MOORE v. Howard McNAMARA.

No. FA6-4663.

Superior Court of Connecticut, Geographical Area No. 6, at

New Haven.

April 26, 1984.

Charles P. Costanzo, New Haven, for plaintiff.

Michele R. Celentano, Orange, for defendant.

Michael F. Ross, Asst. Atty. Gen., for the State.

JACKAWAY, Judge.

On December 10, 1978, the plaintiff gave birth to a child. The plaintiff thereafter instituted a paternity action against the defendant on June 15, 1982. The pleadings are closed and the defendant moves for summary judgment on the ground that General Statutes § 46b-160 bars commencement of the present proceeding. On behalf of the plaintiff the state argues that § 46b-160 is unconstitutional.

A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law. Practice Book § 384; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In the present case the facts, set out above, are not disputed. Therefore, the court is required to decide whether the defendant is entitled to judgment as a matter of law.

The court is asked to decide the constitutional validity of General Statutes § 46b-160 which provides in relevant part: "No such petition [to establish paternity] shall be brought after three years from the birth of such child." The plaintiff's petition was brought more than three years after the child's birth.

Under Connecticut law all minor children, whether born in wedlock or out of wedlock, are owed a legal duty of support by their parents. General Statutes § 46b-215. This duty of support is enforceable throughout the child's minority. See General Statutes § 46b-215. Connecticut law also makes the father of an illegitimate child responsible for the necessary "support and maintenance of such child." Faraday v. Dube, 175 Conn. 438, 441, 399 A.2d 1262 (1978). Enforcement of this obligation is predicated upon the establishment of paternity. See General Statutes § 46b-160 and § 46b-172. The General Statutes, furthermore, provide for the filing of a petition which can lead to enforcement of the father's duty of support. With few exceptions, however, the petition must be filed within three years of the child's birth. General Statutes § 46b-160.

There are three exceptions to the latter general rule. If the putative father contributes to the support of an illegitimate child, and later ceases furnishing such support, an action to establish paternity must be brought within three years of the cessation of such payments. General Statutes § 46b-160. In addition, any period during which the putative father is absent from Connecticut is excluded from the computation of the time within which a petition to establish paternity may be filed under § 46b-160. See General Statutes § 52-590. (The time excluded, however, must not exceed seven years.) The other exception is that an action to establish paternity may be maintained within one year following a divorce decree or dissolution judgment which finds any child not to be issue of such marriage. General Statutes § 46b-55. The foregoing "exceptions" consequently extend the limitation period on paternity actions, in some instances, potentially throughout the child's minority.

The practical effect of the statutory scheme, outlined above, is that Connecticut imposes no limitation on the right of a legitimate child to obtain support from his father, a right which lasts until the child is eighteen years old. General Statutes § 46b-215. An illegitimate child, who does not fall within the purview of the relevant "exceptions," concomitantly, has a right to obtain support from his father until the age of eighteen. General Statutes § 46b-215. But, generally, as a condition precedent to an illegitimate child's right to obtain support, that child must commence a paternity action within three years of birth or forever forfeit the right to obtain that support. General Statutes § 46b-160.

As the foregoing statutory framework reveals, Connecticut truncates an illegitimate child's opportunity to obtain support; General Statutes § 46b-160; while it accords the legitimate child a cause of action for support which persists throughout his minority. See General Statutes § 46b-215. Accordingly, the court must decide whether this differential treatment offends the constitutional guarantee of equal protection under the fourteenth amendment.

In 1968, the United States Supreme Court, for the first time, applied the equal protection clause on behalf of illegitimate children. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968). In a series of decisions following Levy the court has subjected statutory classifications based on illegitimacy to an intermediate tier of scrutiny. While illegitimacy-based classifications are not "suspect" or subject to the court's most exacting strict scrutiny test; Trimble v. Gordon, 430 U.S. 762, 767, 97 S.Ct. 1459, 1463, 52 L.Ed.2d 31 (1977); the test employed requires more than a determination that there is a rational basis for the classification. Therefore an illegitimacy-based classification will withstand equal protection scrutiny only to the extent that it is "substantially related" to a permissible state interest. Lalli v. Lalli, 439 U.S. 259, 265, 99 S.Ct. 518, 523, 58 L.Ed.2d 503 (1978).

The court has recently addressed the constitutionality of both a one-year and two-year limitation period governing suits to establish paternity. Pickett v. Brown, --- U.S. ----, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983) (Tennessee two-year period for bringing paternity action was unconstitutional); Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982) (Texas one-year statute of limitations was unconstitutional). The court formulated a two-pronged test to assess whether any particular statute of limitations on the bringing of a paternity action would violate the equal protection clause. First, the limitation period must be sufficiently long to provide a reasonable opportunity to those with an interest in illegitimate children to bring suit on their behalf. Pickett v. Brown, supra, 103 S.Ct. 2206; Mills v. Habluetzel, supra, 456 U.S. 99, 102 S.Ct. at 1554-55. Second, any time limitation placed on that opportunity must be substantially related to the state's interest in avoiding the litigation of stale or fraudulent claims. Pickett v. Brown, supra, 103 S..Ct. 2207; Mills v. Habluetzel, supra, 456 U.S. 99-100, 102 S.Ct. at 1554-55.

With respect to the first prong the Pickett court reasoned that many of the same "practical obstacles" to filing a paternity action within one year after the child's birth; Mills v. Habluetzel, supra, 100, 102 S.Ct. at 1555, are still present two years after the child's birth. Pickett v. Brown, supra, 103 S.Ct. 2206. "The mother may experience financial difficulties caused not only by the child's birth, but also by a loss of income attributable to the need to care for the child. Moreover, 'continuing affection for the child's father, a desire to avoid disapproval of family and community, or the emotional strain and confusion that often attend the birth of an illegitimate child,' " pose the kind of obstacles which compelled the court to find that a two-year limitation period does not provide illegitimate children with an adequate opportunity to obtain support. Id.

Indeed, it is significant that Justice O'Connor's concurring opinion in Mills v. Habluetzel, supra, joined by four other members of the court, suggests that the practical obstacles to the filing of a paternity action may "exist several years after the birth of the illegitimate child." (Emphasis added.) Mills v. Habluetzel, supra, 105, 102 S.Ct. at 1557-58. (O'Connor, J., wrote separately because she feared that the court's opinion might be misinterpreted as approving the four-year statute of limitations now used in Texas); Pickett v. Brown, supra, 103 S.Ct. 2205-2207 (citing O'Connor, J., with approval).

The court, however, has never precisely defined what time limitation period would satisfy the first requirement under Mills and Pickett. Since the Mills decision, other jurisdictions have addressed similar challenges and have reached inconsistent results on what time period would satisfy the first requirement. Daniel v. Collier, 130 Mich.App. 345, 343 N.W.2d 16 (1983) (Michigan's six-year statute constitutional); Patricia R. v. Peter W., 120 Misc.2d 986, 466 N.Y.S.2d 994 (1983) (New York's five-year statute is adequate under the first requirement of Mills but fails the second requirement); Oregon ex rel. Adult & Family Services Division v. Bradley, 58 Or.App. 663, 650 P.2d 91 (1982) (Oregon's six-year statute unconstitutional--fails both requirements under Mills ); Astemborski v. Susmarski, 502 Pa. 409, 466 A.2d 1018 (1983) (six-year statute constitutional--six-year limit extends beyond the period of the child's first several years, addressed by the court in Pickett ); Kentucky v. Young, 661 S.W.2d 787, 10 Fam.L.Rep. (BNA) 1094 (Ky.1983) (three-year statute unconstitutional and fails both requirements under Mills ). While a six-year limitations period may be constitutionally permissible, it is submitted that a three-year limitation period is only a small improvement in degree over the two-year period at issue in Pickett. A three-year limitations period, it is submitted, is not of sufficiently long duration to negate the practical obstacles to filing suit which "may exist several years after the birth of the illegitimate child." (Emphasis added.) Pickett v. Brown, supra, 103 S.Ct. 2206. For example, the mother may still feel an attachment to the father and may be reluctant to bring suit. Moreover, the mother may not want to assume the risk that bringing suit will cause the father to cut off all communication with the child. See ...