Paternity of James A.O., In re

• Decision Date: 01 February 1994
• Docket Number: No. 93-1216-FT,93-1216-FT
• Citation: 182 Wis.2d 166,513 N.W.2d 410
• Parties: In re the PATERNITY OF JAMES A.O. and Janet C.O.: JAMES A.O. and Janet C.O., Petitioners-Appellants, d v. GEORGE C.B., Respondent-Respondent.
• Court: Wisconsin Court of Appeals

Page 410

513 N.W.2d 410

182 Wis.2d 166

In re the PATERNITY OF JAMES A.O. and Janet C.O.:

JAMES A.O. and Janet C.O., Petitioners-Appellants, ^d v. GEORGE C.B., Respondent-Respondent.

No. 93-1216-FT.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 24, 1993.

Opinion Released Feb. 1, 1994.

Opinion Filed Feb. 1, 1994.

Before WEDEMEYER, P.J., and SULLIVAN and SCHUDSON, JJ.

SCHUDSON, Judge.

Janet C.O., and her son, James A.O., appeal the trial court order dismissing their petition for adjudication of the paternity of James. The trial court dismissed the action based on its conclusion that, under § 893.88, STATS., the petition for adjudication of paternity was time-barred because James was over nineteen years of age. We agree with this conclusion and, therefore, on the primary issue presented in this appeal, we affirm. We disagree, however, with the trial court's determination that the petition was frivolous and, therefore, we reverse the trial court order awarding costs and attorney fees.

I.

Janet and James filed a paternity action on April 30, 1992, against George C.B., alleging that George was James' father. In the petition, they alleged that in 1970, Janet and George entered into an oral agreement concerning the paternity of James, under which Janet was to receive $5,000 in lieu of commencing a paternity action. She allegedly agreed to this to help George prevent their relationship from being revealed to his employer and to his wife. Further, Janet alleged that George never denied that he was the father of James. Neither Janet nor James ever petitioned for an adjudication of paternity prior to this action. ¹ When the action was filed, James was twenty-five years old.

The central issue of this appeal is whether James, an adult "child" over the age of nineteen, is barred from bringing an action to adjudicate his paternity. The trial court concluded that the action was precluded by § 893.88, STATS., that provides [A]n action for the establishment of the paternity of a child shall be commenced within 19 years of the date of the birth of the child or be barred.

James argues that § 893.88, STATS., violates Article I, sec. 9 of the Wisconsin Constitution, which states:

Remedy for wrongs. SECTION 9. Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws.

He argues that § 893.88 "imposes an unreasonable limitation on the certain remedy available to parties seeking establishment of parentage, in violation of the Wisconsin Constitution." James maintains that because Wisconsin law recognizes the right of a child to establish parentage, he must have the corresponding opportunity, unfettered by a limitations period, to bring such an action.

No Wisconsin decision has addressed the precise issue James presents in this case: whether, under Article I, sec. 9, Wisconsin's nineteen year limitation period is unconstitutional to the extent that it denies an adult "child" the opportunity to gain the remedy of paternity adjudication for nonsupport-type injuries. ² James does not challenge the constitutionality of the limitations period as it applies to a person seeking to establish parentage as a prerequisite for obtaining financial child support. Rather, James attacks § 893.88, STATS., only to the extent that it eliminates the right to establish parenthood as a "remedy" for "injuries" such as denial of minority status for obtaining business and education loans, ³ denial of inheritance rights, denial of access to medical or other pertinent records, and denial of social security benefits.

James emphasizes that Wisconsin's paternity laws have evolved and broadened to include increasing numbers of parties and interests that may be served by paternity actions pursued over an increasing period of years. ⁴ He points out that Wisconsin law recognizes a "child's judicially enforceable right vis-a-vis the father to establish parentage." In re R.W.L., 116 Wis.2d 150, 158, 341 N.W.2d 682, 685 (1984). He emphasizes that, in R.W.L., the supreme court observed that a child's interests in establishing parentage were not always the same as those of the state or parent. In addition to their common interest in financial support, the child also might have distinct reasons to establish parentage. Indeed, R.W.L. acknowledged "an interest in establishing a legal father-child relationship in order to entitle the child to any benefits that could be derived from such a relationship." Id. at 160, 341 N.W.2d at 686 (emphasis added).

George responds that the United States Supreme Court's decisions in Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982), Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983), and Clark v. Jeter, 486 U.S. 456, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988), "recognize the age of majority as a limitation on paternity actions that sufficiently protects the state's interest in avoiding the litigation of stale or fraudulent claims as well as providing a period of time sufficiently long in duration to protect the interests of the child." He maintains, therefore, that if the age of majority limitation is constitutional, a nineteen-year limitation also must be.

George's argument overstates the holdings of these decisions. Resolving each case on equal protection grounds, the Court concluded that statutes of limitations of three states were unconstitutional: one year, in Texas (Mills ); two years, in Tennessee (Pickett ); and six years, in Pennsylvania (Clark ). Although the Court, in Clark, referred to "the federal Child Support Enforcement Amendments of 1984 that requires all States participating in the federal child support program to have procedures to establish paternity of any child who is less than 18 years old," it did not comment on the constitutionality of an age of majority statute of limitation. Clark, 486 U.S. at 459, 108 S.Ct. at 1913.

Moreover, these Supreme Court decisions all focused specifically on statutes of limitations that restricted the period within which one could petition on behalf of a child to establish paternity for the purpose of child support. See Mills, 456 U.S. at 92, 102 S.Ct. at 1551; Pickett, 462 U.S. at 3, 103 S.Ct. at 2201; Clark, 486 U.S. at 457, 108 S.Ct. at 1911. Analyzing only the financial support interest that ordinarily would be limited to the years of childhood, and doing so only in equal protection terms, the Court did not address the other interests and the "right/remedy" theory that, James argues, support his effort to determine paternity.

Article I, sec. 9 originated out of concerns that citizens not be forced to bribe public officials to get into court. Hartland- Richmond Town Ins. v. Wudtke, 145 Wis.2d 682, 691, 429 N.W.2d 496, 499 (Ct.App.1988), overruled on other grounds, Funk v. Wollin Silo & Equip., Inc., 148 Wis.2d 59, 435 N.W.2d 244 (1989). Accordingly, this article provides persons the right of access to the courts to obtain justice based on the law as it exists. Id. (emphasis added). It does not confer any legal rights. Id. (emphasis added). Moreover, as James acknowledges, under Article I, sec. 9, the legislature has the right to impose reasonable limitations upon the remedies available to the parties. R.W.L., 116 Wis.2d at 158, 341 N.W.2d at 685.

James argues nonetheless that § 893.88, STATS., imposes an unreasonable limitation on the remedy of establishing parentage. Particularly, James suggests that certain "injuries" such as the denial of a minority-based loan or the right to inherit might occur after he turns nineteen. Thus he argues that § 893.88 violates Article I, sec. 9, by unreasonably limiting his right to seek a remedy because the "injuries" he might want to redress would not occur until after the limitations period has passed.

We review the constitutionality of a statute de novo. Zintek v. Perchik, 163 Wis.2d 439, 478, 471 N.W.2d 522, 538 (Ct.App.1991). Statutes carry a heavy presumption of constitutionality, and the party challenging a statute has the burden of proving its unconstitutionality beyond a reasonable doubt. Chappy v. LIRC, 136 Wis.2d 172, 184-185, 401 N.W.2d 568, 573-74 (1987). Every presumption will be indulged to sustain the law if at all possible. State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis.2d 32, 46, 205 N.W.2d 784, 792 (1973).

Although Wisconsin's appellate courts have never addressed the precise issue in this case, in recent years they have considered similar issues stemming from Article I, sec. 9 challenges to other statutes of limitations. In CLL Associates v. Arrowhead Pacific Corp., 174 Wis.2d 604, 497 N.W.2d 115 (1993), the Wisconsin Supreme Court addressed the issue of when a contract cause of action accrues under § 893.43, STATS. ⁵ Declining to apply the tort "discovery rule," the supreme court held that under § 893.43, a contract cause of action accrues the moment the breach occurs, regardless of whether the injured party knew or should have known of the breach. Id. at 607, 497 N.W.2d at 116. The supreme court concluded that such a construction of the limitations period did not violate the plaintiff's constitutional rights under Article I, sec. 9, stating, "Article I, sec. 9, of the Wisconsin Constitution [is not violated] solely because the limitations period expired before CLL discovered its injury." Id. at 614, 497 N.W.2d at 119. The supreme court also drew from its decision in Rod v. Farrell, 96 Wis.2d 349, 291 N.W.2d 568 (1980), overruled on other grounds by Hansen v. A.H. Robins, Inc., 113 Wis.2d 550, 335 N.W.2d 578 (1983):

This Court has said that although Art. I, sec. 9, Wisconsin Constitution, guarantees a suitor a day in a court of competent jurisdiction to which he may present his claim, the statute of...