Opinion of the Justices

• Decision Date: 19 April 1989
• Docket Number: No. 89-054,89-054
• Citation: 558 A.2d 454,131 N.H. 573
• Parties: OPINION OF the JUSTICES.
• Court: New Hampshire Supreme Court

Page 454

558 A.2d 454

131 N.H. 573

OPINION OF the JUSTICES.

No. 89-054.

Supreme Court of New Hampshire.

April 19, 1989.

Jeffrey R. Howard, Acting Atty. Gen. (David S. Peck, Asst. Atty. Gen., on the memorandum), filed a memorandum supporting the constitutionality of Senate Bill 45-FN.

The following resolution, Senate Resolution No. 3, requesting an opinion of the justices, was adopted by the Senate on January 11, 1989, and filed with the Supreme Court on February 6, 1989:

"Whereas, Senate Bill 45-FN, an act relative to child support enforcement, has been introduced and amended by the senate and is now pending before the senate for consideration; and

"Whereas, certain questions have arisen concerning the constitutionality of SB 45-FN; now therefore, be it

"Resolved by the senate:

"That the justices of the supreme court are respectfully requested to give their opinion on the following question of law:

(1) Whether the enactment of the proposed amendment to RSA 168-A:12 which states that 'A proceeding under this chapter may be commenced even though a paternity action was previously filed and dismissed, if such dismissal was based on a statute of limitations of less than 18 years' would be a violation of Part 1, Article 23 of the New Hampshire Constitution, Article I section 10 of the Constitution of the United States or any other constitutional provision.

"That the clerk of the senate transmit copies of this resolution and SB 45-FN, as amended, to the justices of the New Hampshire supreme court."

The following reply is returned to the Honorable Senate:

The undersigned justices of the Supreme Court submit the following reply to the question presented in your resolution adopted January 11, 1989, and filed in this court on February 6, 1989. Interested parties were permitted to file memoranda with the court until February 23, 1989.

Before answering the precise question presented, we briefly examine RSA chapter 168-A, the Uniform Act on Paternity, in order to understand the full import of the proposed amendment. RSA chapter 168-A provides for the support of a child born out of wedlock by the child's father. The support obligations for a child born out of wedlock are the same as those for a child born in wedlock. RSA 168-A:1; Joann P. v. Gary W., 122 N.H. 104, 105, 441 A.2d 1161, 1162 (1982). To enforce the father's obligation for a child born out of wedlock, however, paternity must first be determined. Watts v. Watts, 115 N.H. 186, 188, 337 A.2d 350, 352 (1975); see RSA 168-A:2. RSA chapter 168-A allows for the institution of proceedings to determine paternity by "the mother, child, or the public authority chargeable by law with the support of the child" and to enforce the father's liabilities once paternity has been determined. RSA 168-A:2. While other chapters of the New Hampshire Revised Statutes provide mechanisms to ensure support of a child by the child's parents, see, e.g., RSA ch. 161-B (Supp.1988); RSA ch. 161-C (Supp.1988); RSA ch. 167, only RSA chapter 168-A authorizes the institution of proceedings to establish paternity. RSA 168-A:12 provides the applicable statute of limitations for the institution of proceedings under the chapter.

The limitations period for proceedings instituted under RSA chapter 168-A has been expanded twice since the chapter first went into effect in 1971. RSA 168-A:12 initially provided for a one-year statute of limitations. In 1977, the section was amended to provide for a two-year statute of limitations. In 1985, the section was amended again to provide that "[n]o proceeding under this chapter shall be maintained unless commenced within 18 years of the date of the birth of the child in question." RSA 168-A:12 (Supp.1988). Senate Bill 45-FN would amend the section further by adding the following statement: "A proceeding under this chapter may be commenced even though a paternity action was previously filed and dismissed, if such dismissal was based on a statute of limitations of less than 18 years."

In answering the question before us, we assume that the proposed amendment is intended to permit the enforcement of prospective support obligations only. With this assumption in mind, we first address whether Senate Bill 45-FN would violate part I, article 23 of the New Hampshire Constitution which provides that "[r]etrospective laws are highly injurious, oppressive and unjust. No such laws, therefore, should be made, either for decision of civil causes, or the punishment of offenses." This constitutional prohibition has been interpreted to prohibit a law from taking away or impairing "vested rights, acquired under existing laws." See Woart v. Winnick, 3 N.H. 473, 479 (1826). We therefore must determine whether the putative father who has obtained a prior judgment which dismissed a paternity suit as untimely under the then-applicable statute of limitations has thereby acquired a vested right which the amendment may not impair.

A putative father who has obtained such a judgment can claim two distinct, though related, defenses to a future paternity action brought against him. First, he can assert that the limitations period for paternity actions which was in effect at the time of the child's birth has run. A putative father who has not obtained a judgment could as well make this assertion. Second, the putative father can assert that he has already obtained a judgment, dismissing the suit for untimeliness, in a paternity action. We will examine each claim to determine whether the putative father has acquired a vested right to assert either defense.

It has long been settled in this state that a "right to assert the statute of limitations as a defense vests once the limitations period has run." Gould v. Concord Hospital, 126 N.H. 405, 408, 493 A.2d 1193, 1195-96 (1985) (citing Rockport v. Walden, 54 N.H. 167, 173-74 (1874)). Thus, we have previously held that once a limitations period has run, applying a longer limitations period to the same cause of action would operate as an unconstitutional retrospective law. Gould, supra 126 N.H. at 408, 493 A.2d at 1196. However, if the previous statute of limitations was unconstitutional, it is our opinion that mere running of the period would not provide a vested right, as least with regard to prospective obligations. "An unconstitutional act is not a law; it binds no one, and protects no one." Trustees, etc., Academy v. Exeter, 90 N.H. 472, 495, 27 A.2d 569, 586 (1940) (quoting Huntington v. Worthen, 120 U.S. 97, 101-02, 7 S.Ct. 467, 471, 30 L.Ed. 588 (1887)); Mertens v. Abbott Labs, 595 F.Supp. 834, 837 (D.N.H.1984). In light of the United States Supreme Court decisions in Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982) (striking down a Texas one-year statute of limitations for paternity actions as a denial of equal protection), Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983) (striking down a Tennessee two-year limitations period for paternity actions as a denial of equal protection), and Clark v. Jeter, 486 U.S. 456, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988) (striking down a Pennsylvania six-year statute of limitations for paternity actions as a denial of equal protection under the Federal Constitution), we examine the constitutionality of our prior limitations periods.

In determining whether the prior one and two-year limitations periods were unconstitutional, we must determine whether the application of RSA 168-A:12 in its existing and prior versions could be tolled during the minority of the child on whose behalf no support action was begun during the limitations period. Accord Clark, supra 108 S.Ct. at 1916 (noting that Pennsylvania tolls most other civil actions during a child's minority): Pickett, supra 462 U.S. at 6, 103 S.Ct. at 2203 (noting state court's finding that limitations period governing paternity actions was unique in not being tolled during plaintiff's minority); Mills, supra 456 U.S. at 96, 102 S.Ct. at 1553 (noting state court's finding that limitations period governing paternity actions was not tolled during minority). Only if the statute of limitations could not be tolled would its application raise an equal protection concern, because only then would our legislative scheme have given children born out of wedlock a relatively short period of time to seek support compared with children born in wedlock, who are able to seek support throughout their minority. See generally RSA ch. 161-B (Supp.1988); RSA ch. 161-C (Supp.1988); RSA ch. 167. We conclude that application of the limitations period found in RSA 168-A:12 was and is not subject to being tolled.

To make this determination, we examine the Uniform Act on Paternity initially introduced in 1971. RSA ch. 168-A. The statute itself provides under section 12: "No proceeding under this chapter shall be maintained unless commenced within 18 years of the date of birth of the child in question." RSA 168-A:12 (Supp.1988) (emphasis added). The earlier versions of RSA 168-A:12 similarly began with "No proceeding." Hence, the section is applicable to the mother, child, or public authority providing support.

While our general statute relating to the time to bring personal actions tolls the statute of limitations for such actions during the minority of a child, see RSA 508:8, we are of the opinion that the omission from RSA 168-A:12 of any provision for tolling its short limitation period was indicative of a legislative intent that there be no tolling in relation to the unique statutory action to which § 12 related. Although there is no legislative history on the issue of tolling, at the time the Uniform Act on Paternity was enacted in 1971, there were policy reasons that support the view that the failure to provide for tolling was intentional.

First, proving paternity in 1971 was relatively difficult and thus more subject to fraudulent claims. Hence, the legislature could reasonably have decided that the earlier the...