R.W.L., In re
| Decision Date | 04 January 1984 |
| Docket Number | No. 82-1093,82-1093 |
| Citation | 116 Wis.2d 150,341 N.W.2d 682 |
| Court | Wisconsin Supreme Court |
| Parties | In re the Paternity of R.W.L. W.R.W., Appellant, v. Jack BARTHOLOMEW, Guardian ad Litem for R.W.L., Respondent. |
James R. Hill, Appleton (argued), for appellant.
John S. (Jack) Bartholomew, Bartholomew & Greenhill, Shawano (argued), for respondent.
William H. Wilker, Asst. Atty. Gen., Bronson C. La Follette, Atty. Gen., amicus curiae.
This appeal, on certification by the court of appeals, is from an order of the circuit court for Menominee and Shawano counties Michael G. Eberlein, Circuit Judge, denying an alleged father's motion to dismiss a paternity action commenced by the guardian ad litem for R.W.L., a minor. The court of appeals certified the appeal to this court "to determine whether an illegitimate child may bring a paternity action under sec. 767.45(1)(a), Stats. [1981-82], when a previous action brought by the district attorney in 1978 under ch. 52, Stats.1977, was barred because it was not brought within the five-year statute of limitations." We conclude that the child's action is not barred. We affirm the order of the circuit court and remand the matter to the circuit court for further proceedings.
For purposes of the motion to dismiss, the facts are not in dispute. R.W.L. was born on March 20, 1970, to unwed parents. In the spring of 1982, R.W.L. by his guardian ad litem brought an action for a determination of his paternity.
The alleged father moved to dismiss, alleging that the action was barred by sec. 893.195, Stats.1977, which provided for a five-year limitations period for paternity actions. 1 Sec. 893.195, Stats.1977, was in effect from the date of R.W.L.'s birth until July 1, 1981, and provided that an action under ch. 52 to establish paternity had to be commenced within five years of the date of the birth of the child. Prior to the commencement of this action the district attorney had commenced an action in 1978 under ch. 52 on behalf of R.W.L.'s mother against the alleged father to establish R.W.L.'s paternity. The Outagamie County circuit court dismissed the 1978 action with prejudice since the action was commenced more than five years after the child's birth.
The statutes in effect from R.W.L.'s birth until July 1, 1981, gave no right to either the mother or child to commence an action to establish the child's paternity. Only the district attorney was empowered to commence a paternity proceeding. If the district attorney declined to prosecute, no one else could. J.M.S. v. Benson, 98 Wis.2d 406, 297 N.W.2d 18 (1980); State ex rel. Smith v. Chicks, 70 Wis.2d 833, 235 N.W.2d 694, 239 N.W.2d 9 (1975); secs. 52.21-52.45, Stats.1977.
Effective July 1, 1981 (chs. 323, 352, 355, and 357, Laws of 1979), the Wisconsin legislature provided that a child may file a paternity action, sec. 767.45(1), Stats.1981-82, 2 and that such an action must be brought within 19 years of the date of birth of the child. Sec. 893.88(2), 1981-82. 3 We shall refer to these statutes as the 1981 statute.
The circuit court, after reviewing the pre-1981 and 1981 statutes and the judgment dismissing the 1978 paternity action, denied the alleged father's motion to dismiss, concluding that the 1981 statute established a new cause of action in the child and that the 1978 judgment dismissing the previous paternity action brought by the district attorney did not involve parties present before the court in this case and thus did not bar the instant action.
On appeal the alleged father challenges the circuit court's conclusion that the 1981 statute establishes a new cause of action in the child. The alleged father contends that R.W.L. had a right of action to establish parentage under the pre-1981 statutes and that R.W.L. had not, as required by statute, asserted his right within five years after birth. The alleged father thus urges that R.W.L.'s cause of action was barred under the pre-1981 statutes and could not be revived by a subsequent legislative enactment.
The alleged father's argument is based on J.M.S. v. Benson, 98 Wis.2d 406, 297 N.W.2d 18 (1980), in which we held that the pre-1981 statutory procedure for commencing a paternity action was exclusive: the district attorney commenced the action (typically upon complaint of the mother) within five years of the birth of the child. Under the Benson rationale the child's cause of action was subsumed into the district attorney's action since representation "by the mother and/or the district attorney" in the paternity action constituted virtual representation of the child. Id. at p. 415, 297 N.W.2d 18.
The alleged father's argument can be summarized as follows: R.W.L. had a cause of action under the pre-1981 statutes to establish parentage, Benson, supra; R.W.L.'s action had to have been brought by the district attorney within five years after R.W.L.'s birth, sec. 893.195, Stats.1977; no paternity action involving R.W.L. was brought within the statutory five-year period; a paternity action involving R.W.L. brought by a district attorney more than five years after R.W.L.'s birth was dismissed with prejudice; any duty the alleged father may have had to support R.W.L. was terminated in 1975 by operation of the five-year statute of limitations; the running of the five-year statute of limitations barred R.W.L.'s right as well as his remedy; and the 1981 statute cannot constitutionally revive R.W.L.'s action which was barred by the five-year statute in force when R.W.L.'s cause of action arose. The alleged father relies on the oft-stated Wisconsin rule that:
Maryland Casualty Co. v. Beleznay, 245 Wis. 390, 393, 14 N.W.2d 177 (1944). See also In re Estate of Fessler, 100 Wis.2d 437, 448, 302 N.W.2d 414 (1981); sec. 893.05, Stats.1981-82. Since the alleged father's argument rests directly on the holding of Benson that the child's right of action was subsumed into the action brought by the district attorney, the outcome of the case depends on the validity of our holding in Benson. In Benson we were not requested to and did not address the constitutionality of the pre-1981 statutes empowering the district attorney to be the child's sole representative to commence a paternity action. In this case, however, the constitutionality of the pre-1981 statutory procedure and of the 1981 statute is before the court. 4 We must therefore reexamine the Benson decision.
Wisconsin has long recognized that children born to married parents and those born to unmarried parents have an opportunity to obtain paternal support. State v. Beilke, 146 Wis. 515, 131 N.W. 891 (1911). The duty of support grows out of the paternal relation. Duffies v. State, 7 Wis. 568 (*672), 569 (*673) (1858). Enforcement of the support obligation of an unwed father is, however, predicated on the establishment of paternity.
Historically paternity was established by quasi-criminal proceedings which were viewed as a means of reducing the public burden of supporting illegitimate children who were or might become public charges. Paternity statutes reflected society's belief that a father should be legally responsible for the support of his children. Duffies v. State, 7 Wis. 568 (*672), 569 (*673) (1858). In more recent years society has come to recognize that the primary interest in the paternity action is that of the child. Francken v. State, 190 Wis. 424, 436, 209 N.W. 766 (1926). Implicit in the Wisconsin statutes relating to paternity and financial support for children (whether born in or out of wedlock) is a recognition of the child's judicially enforceable right vis-a-vis the father to establish parentage and to obtain financial support. J.M.S. v. Benson, 98 Wis.2d 406, 414, 415, 297 N.W.2d 18 (1980). As a matter of federal constitutional law children born out of wedlock have a "judicially enforceable right ... to needed support from their natural fathers when the state has posited this right for children born in wedlock." Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 875, 35 L.Ed.2d 56 (1973).
The question then becomes whether the pre-1981 statutes provided a forum for the child born out of wedlock to assert and litigate these rights. Article I, section 9, of the Wisconsin Constitution, a provision of great importance in our jurisprudence, guarantees a remedy for a legislatively recognized right. 5 Mulder v. Acme-Cleveland Corp., 95 Wis.2d 173, 189, 290 N.W.2d 276 (1980). The Wisconsin Constitution Metzger v. Department of Taxation, 35 Wis.2d 119, 129, 150 N.W.2d 431 (1967).
According to Benson, the pre-1981 statutes vested a right in the child to establish parentage and support but vested exclusive authority in the district attorney to commence a paternity action in which the child's rights were determined. Whether the pre-1981 statutes accorded a child born out of wedlock his or her "day in court" under article I, section 9, for asserting parentage and support rights depends on well-recognized principles of law, e.g., was the child given notice of the proceedings, an opportunity to present evidence, and the right to have an attorney present his or her case.
Under the pre-1981 statutes the child was not given notice of the paternity proceeding and there was no requirement that the child be present personally, by a...
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