State ex rel. Krupke v. Witkowski, 2-59212

Citation256 N.W.2d 216
Decision Date29 July 1977
Docket NumberNo. 2-59212,2-59212
PartiesSTATE of Iowa ex rel. Donna R. KRUPKE, Appellant, v. Rich WITKOWSKI, Appellee.
CourtUnited States State Supreme Court of Iowa

Richard C. Turner, Atty. Gen., Lorna L. Williams, Special Asst. Atty. Gen., Zigmund Chwirka, County Atty., and John Samore, Asst. County Atty., for appellant.

William W. Gates, Sioux City, for appellee.

Heard by MOORE, C. J., and MASON, LeGRAND, REES and UHLENHOPP, JJ.

MOORE, Chief Justice.

Plaintiff appeals trial court ruling dismissing paternity action initiated under chapter 675, 1975 Code more than two years after the birth of the child. We affirm.

Plaintiff alleged she was the mother and defendant was the father of an illegitimate child born August 19, 1972. In her prayer she sought an adjudication defendant was the child's father and in addition an order requiring defendant to pay hospital and medical bills incurred and child support. No facts were alleged attempting to circumvent the limitations of section 675.33. The complaint was filed November 19, 1975 and notice was served on defendant the same day. Thus it is undisputed plaintiff's action to establish paternity was filed more than two years after the birth of the child.

Defendant, by way of motion to dismiss, raised as a defense the limitation contained in chapter 675 which provides:

"Proceedings to enforce the obligation of the father shall not be brought after the lapse of more than two years from the birth of the child, unless paternity has been judicially established, or has been acknowledged by the father in writing or by the furnishing of support."

Plaintiff filed a resistance to this motion alleging that section 675.33, if applied to bar her action, would effect an unconstitutional denial of equal protection and due process rights of both complainant and her daughter, Heather. Subsequently plaintiff amended the petition to eliminate all claims for support.

Trial court sustained the motion and dismissed the petition on the ground that our decision in Jensen v. Voshell, Iowa, 193 N.W.2d 86, 59 A.L.R.3d 678 mandated such result. This appeal followed.

I. Before addressing the merits of appellant's contentions we briefly consider the propriety of raising the statute of limitations defense by way of a motion to dismiss pursuant to Rule 104(b), Rules of Civil Procedure. Ordinarily the bar of limitations clearly falls within the category of an affirmative defense which must be specially asserted in a separate division of the responsive pleading. Rule 101, R.C.P.; Ehlinger v. Ehlinger, 253 Iowa 187, 192, 193, 111 N.W.2d 656, 659; Smith v. Middle States Co., 228 Iowa 686, 696, 293 N.W. 59, 64. However, where it is obvious from the uncontroverted facts appearing on the face of the challenged petition that the claim for relief may be barred when the action was commenced, the defense of limitations may properly be raised by motion to dismiss. Pride v. Peterson, Iowa, 173 N.W.2d 549, 554. Of course our determination whether plaintiff's petition presents a situation which affords defendant the option of raising this defense by motion to dismiss must be based solely on matters alleged in the petition. Riediger v. Marrland Development Corp., Iowa, 253 N.W.2d 915, 916; Ke-Wash Company v. Stauffer Chemical Company, Iowa, 177 N.W.2d 5, 9.

II. In her first assignment of error appellant urges us to reconsider our holding in Jensen v. Voshell, supra, that section 675.33 bars her action in light of subsequent legislative action relating to paternity proceedings and enforcement of child support orders.

In Jensen we were presented with an identical situation under chapter 675. There, as here, plaintiff failed to timely file her petition within the two-year limitation of section 675.33. In rejecting the plaintiff's attempt to escape the clear language of that section we stated at page 89, 193 N.W.2d:

"Iowa, by enacting chapter 675, joined Nevada, New York, North Dakota, South Dakota, New Mexico and Wyoming in adopting the Uniform Illegitimacy Act.

Cases from those jurisdictions uniformly hold the special limitation section imposes a time limitation on the right to maintain this suit. Consequently, to avoid the limitation, burden is on complainant to plead and prove one of the exceptions permitting the action to be brought more than two years after the child's birth. Hernandez v. Anaya, 66 N.M. 1, 340 P.2d 838 (1959); People on Complaint of Mendes v. Pennyfeather, 11 Misc.2d 546, 174 N.Y.S.2d 766 (1958); Deckert v. Burns, 75 S.D. 229, 62 N.W.2d 879 (1954). There was no common law right to determine paternity through action instituted by the illegitimate child's mother. Such determination is permitted under chapter 675 only as a necessary step in an action to enforce the father's obligation to support the child. Section 675.2, Code, 1971; Blanton v. Warn, 444 P.2d 325 (Wyo.1968). It would be an anomaly to hold, as complainant suggests, that her action under chapter 675 now be considered as one to merely establish paternity and that she could at any later time bring action based on that judgment to enforce the support obligation. Such holding would permit § 675.33 to be circumvented by two consecutive actions when the same issues, raised by one complaint, would clearly fall within the limitation. (Emphasis added).

Plaintiff contends that the meaning of chapter 675 has been clarified by the legislature since the Jensen decision was rendered through enactment of The Child Support Recovery Act, 66 G.A. (1975 Session), chapter 151, now codified at chapter 252B, 1977 Code. Section 5 of that Act provides, inter alia, that the child support recovery unit established by the Act shall provide the following services:

"2. Aid in establishing paternity and securing a court order for support pursuant to chapter six hundred seventy-five (675) of the Code.

"3. Aid in enforcing through court proceedings an existing court order for support issued pursuant to chapters two hundred fifty-two A (252 A), five hundred ninety-eight (598), and six hundred seventy-five (675) of the Code."

Plaintiff argues this statutory language manifests a legislative intent that the legislature intended chapter 675 to provide for two causes of action one to establish paternity, the other to enforce the obligation. We disagree.

In construing these statutes we must ascertain and give effect to the intention of the legislature. Spilman v. Board of Directors of Davis Cty., Iowa, 253 N.W.2d 593, 596; Doe v. Ray, Iowa, 251 N.W.2d 496, 500; Iowa Dept. of Rev. v. Iowa Merit Employ. Com'n., Iowa, 243 N.W.2d 610, 614. In making this determination, since the statutes under consideration relate to the same subject matter, we must consider them in light of their common purpose and intent. Thus the concept of pari materia comes into play. Spilman v. Board of Directors of Davis Cty., supra, 253 N.W.2d at page 596, and cases cited therein; Catholic Char. of Arch. of Dubuque v. Zalesky, Iowa, 232 N.W.2d 539, 544.

We believe when the two statutes are properly read together in light of the foregoing principles the Jensen rationale becomes even more persuasive. Chapter 252B establishes no new theories of child support recovery but merely creates a vehicle to establish paternity under chapter 675 and enforce existing court orders for support previously entered in chapters 252A, 598, 675 proceedings. Plaintiff's argument seeking to circumvent section 675.33 is without merit. Also see Annot., Statute of Limitations in Illegitimacy or Bastardy Proceedings, 59 A.L.R.3d 685, particularly section 3, pages 698-702; 10 C.J.S. Bastards § 60, pages 155-156.

III. Appellant next contends the application of section 675.33 denies equal protection and due process rights of both mother and child by imposing on them a time limitation not imposed on persons asserting paternal support obligations under different statutes.

This contention is first raised here as it was not pleaded or decided in the lower court. However, because plaintiff's resistance to the motion to dismiss made reference thereto, appeal counsel urges us to consider the constitutionality of section 675.33. Because of its importance in future litigation, we choose to consider and decide the constitutional issues. See In the Interest of Hochmuth, Iowa, 251 N.W.2d 484, 488. Our task is made difficult as appellant cites only Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 and appellee has not filed a reply brief.

Our research leads us to observe that most of the legal disabilities which affect illegitimates have been removed to a substantial extent by recent mandate of the United States Supreme Court. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (right to share in wrongful death recoveries); Glona v. American Guar. & L. Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (same as above); Willis v. Prudential Insurance Co., 405 U.S. 318, 92 S.Ct. 1257, 31 L.Ed.2d 273 (right to share in insurance policies); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (putative father's right to notice and custody); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (right to share in Workmen's Compensation awards); New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619, 93 S.Ct. 1700, 36 L.Ed.2d 543 (right to share in wholly state supported welfare program); Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (right to share in social security disability benefits). However, see, Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) where the Supreme Court upheld an immigration statute which had the effect of excluding the relationship of illegitimate child and natural father (as opposed to natural mother) from special preference immigration status accorded to "child" or "parent" of U.S. citizen or resident. In this opinion the court stated:

" * * *. Congress obviously has determined that...

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21 cases
  • Cole v. State
    • United States
    • Mississippi Supreme Court
    • 31 Agosto 1992
    ...of limitations speak to matters of remedy and procedure, rather than the destruction of fundamental rights. State ex rel. Krupke v. Witkowski, 256 N.W.2d 216, 224 (Iowa 1977); Presbytery of Southeast Iowa v. Harris, 226 N.W.2d 232, 242 (Iowa), cert. denied, 423 U.S. 830, 96 S.Ct. 50, 46 L.E......
  • M. D. H., Matter of, 1-981A285
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    ...which can be obtained from the mother and/or the state, but merely his right to establish paternity. See, e.g., State ex rel. Krupke v. Witkowski, (1977) Iowa, 256 N.W.2d 216; Cessna v. Montgomery, (1976) 63 Ill.2d 71, 344 N.E.2d 447; Texas Dept. of Human Resources v. Chapman, (1978) Tex.Ci......
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    ...In addition, statutes relating to the same subject matter must be considered in light of their common purpose, State ex rel. Krupke v. Witkowski, 256 N.W.2d 216, 219 (Iowa 1977), and in interpreting a statute, other pertinent statutes are to be considered, State v. Prybil, 211 N.W.2d 308, 3......
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