State ex rel. Lucas v. Wilson, WD

• Decision Date: 20 January 1998
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, ex rel. Quinton D. LUCAS, et al., Appellants, v. Thomas O. WILSON, et al., Respondents. 53699.
• Court: Missouri Court of Appeals

Page 408

963 S.W.2d 408

STATE of Missouri, ex rel. Quinton D. LUCAS, et al., Appellants, v. Thomas O. WILSON, et al., Respondents.

No. WD 53699.

Missouri Court of Appeals,

Western District.

Submitted Sept. 4, 1997.

Decided Jan. 20, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 3, 1998.

Application to Transfer Denied

April 21, 1998.

Lara B. Webb, Asst. Pros. Atty., Jackson County, Kansas City, for appellants.

Elister H. Dewberry, Kansas City, for respondents.

Before SMART, P.J., and LOWENSTEIN and LAURA DENVIR STITH, JJ.

SMART, Judge.

The State appeals the dismissal of its petition to declare paternity and procure child support on behalf of Quinton Lucas, who was born in August, 1984. On November 7, 1996, the trial court dismissed with prejudice the State's amended petition for paternity and support on the ground that the action was time-barred under Missouri statutes and the Missouri Constitution. Because we conclude that the claim was governed by the five-year statute of limitations contained in former § 210.826.1(2), and that the limitation period expired before this action was filed, we affirm the judgment.

I. Facts

Quinton Lucas ("Quinton") was born to Quintanella Lucas ("Mother") on August 19, 1984. At the time, Mother was married to Ricardo Lucas ("Lucas"). Mother testified that Lucas began an eighteen-year prison term in 1982 or 1983. It appears that Ricardo Lucas was in prison at the time Quinton was conceived. This marriage was dissolved on November 28, 1990. On May 4, 1995, the State filed a petition on the behalf of Quinton for the declaration of paternity and for support under the Uniform Parentage Act ("UPA"), § 210.817 et seq., RSMo 1994, in Jackson County Circuit Court. The petition alleged that either Lucas or Thomas Wilson ("Wilson") was the natural father of Quinton. Wilson filed an answer in which he denied all counts. Lucas never answered. Blood tests excluded Lucas as the father and reported Wilson's probability of paternity as 99.85%. A second blood test reported that Wilson had a 99.99% probability of paternity.

Both parties were granted leave to amend their pleadings in September, 1996, after the State realized that it had neglected to plead that Lucas was the presumed father under § 210.822.1(1) RSMo. With his motion to amend, Wilson filed a motion to dismiss based on the affirmative defense of an expired statute of limitations (§ 210.826.1(2), RSMo Supp.1988) and the unconstitutionality of the retroactive application of the statute of limitations as amended in 1993.

On November 5, 1996, the circuit court conducted a hearing on Wilson's motion to dismiss. After this hearing, the circuit court made specific findings of fact and conclusions of law. The court found that Lucas was the presumed father and that the State brought its action more than five years after Quinton was born. The court concluded that application of the amended statute of limitations in § 210.826.1, RSMo 1994 (action to declare existence or nonexistence of paternity may be brought at any time) would violate the Missouri Constitution's prohibition against retroactive application of statutes. The court ruled that the five-year statute of limitations in pre-1993 § 210.826.1(2), RSMo Supp.1988 applied to this case. The court dismissed the claim with prejudice based on the expired statute of limitations.

II. Statutory Background

In 1987, the Missouri legislature adopted the UPA, which first appeared at § 210.817-.852, RSMo Supp.1988. The original UPA, as adopted by Missouri, contained different statutes of limitations for paternity actions, depending on whether the action was brought to establish the existence or nonexistence of a presumed paternal relationship, and on whether the child had a presumed father as defined by the statute.

The original UPA established a rebuttable presumption of paternity where a man was married to the child's natural mother when the child was born or if the child was born within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or dissolution. § 210.822.1(1), RSMo Supp.1988. The child, natural mother, presumed father, and division of child support services were given the right to bring an action "at any time" for the purpose of establishing the existence of a presumed paternal relationship. § 210.826.1(1) RSMo Supp.1988. The next sub-subsection gave those same persons the right to file an action for the purpose of establishing the nonexistence of a presumed paternal relationship "only if the action is brought within a reasonable time after obtaining knowledge of relevant facts, but in no event later than five years after the child's birth." § 210.826.1(2) RSMo Supp.1988 (emphasis added). In a later section, the statute gave parties, including a man alleging to be the father, the right to bring an action to determine the existence of a paternal relationship with respect to a child with no presumed father. § 210.826.3 RSMo Supp.1988. The next section of the statute limited actions "to determine the existence of the father and child relationship as to a child who has no presumed father" to eighteen years after the child's birth. § 210.828.1 RSMo Supp.1988.

In 1993, Missouri's version of the Uniform Parentage Act was amended to provide that:

[a] child, his natural mother, a man presumed to be his father under subdivision (1), (2), or (3) of subsection 1 of section 210.822, a man alleging himself to be a father or the division of child support enforcement may bring an action at any time for the purpose of declaring the existence or nonexistence of the father and child relationship presumed under subdivision (1), (2) or (3) of subsection 1 of section 210.822.

§ 210.822(1), RSMo 1994. The State argues that this amended statute of limitations applies retroactively, thereby permitting a paternity action to be filed "at any time." First, however, we consider the pre-1993 statute, since the action would not be time-barred if it is not time-barred under the pre-1993 statute.

III. Classification of Action under the Pre-1993 Statute

The State argues that even if the 1987 UPA applies to this action, the five-year statute of limitations does not apply to this action because the State's petition was not an action to declare "the nonexistence of a presumed parental relationship" but instead sought a declaration of the existence of the presumed paternal relationship between Lucas and Quinton. The State's argument is faulty. While it is true that the State sought a declaration of the presumed father's paternity in the original petition, it is also true that the State alternatively sought a declaration of Wilson's paternity in the same petition. The original petition alleged that "Respondent Thomas Wilson or Respondent Ricardo C. Lucas is the father of said child," and requested the declaration of paternity without regard to a specific respondent. The amended petition, filed after blood tests excluded Lucas as the father, alleged that Wilson rather than Lucas was Quinton's actual father. Logically, the establishment of Wilson's paternity would necessarily rebut the presumption that Lucas was Quinton's father. There was absolutely no reason to join Wilson as a defendant unless the State anticipated the possibility of proving that Wilson rather than Lucas was Quinton's biological father. Alternative pleading does not change the essence of this action. Moreover, the amendment clarified that this was an action to declare the non-existence of presumed paternity and the paternity of a man other than the presumed father.

The fact of the marriage at the time of birth is sufficient to invoke the presumption of paternity in this case. § 210.822.1(1) RSMo Supp.1988. The statute requires nothing more for the presumption to apply. The presumption is rebuttable by clear and convincing evidence under § 210.822.2. While circumstantial facts related to the conception of the child may be relevant to the refutation of the presumption, they are not relevant to the invocation of the presumption. We decline the State's invitation to follow the lead of some other UPA jurisdictions in engrafting a cohabitation requirement onto this statutory presumption. ¹ To do so would be to cross the line separating statutory construction from judicial legislation. ² Consequently, regardless of where Lucas may have been at the time Quinton was conceived, the statutory presumption was applicable.

Because Quinton had a presumed father when the State's original petition was filed in 1995, refutation of the presumption of paternity was a necessary part of the State's action to establish paternity as to anyone other than the presumed father. On the face of the statute, the five-year limitations period applies to actions brought for the purpose of declaring the nonexistence of the relationship. § 210.826.1(2) RSMo Supp.1988. Where the child has a presumed father, any action to establish the paternity of another man is necessarily an action brought for the purpose of declaring the nonexistence of the presumed paternity, and the five-year limitations period would seem to apply.

The State advances the view that, on grounds of legislative intent and public policy, putative fathers such as Wilson may not invoke the five-year statute of limitations once the presumption of paternity has been rebutted. Conceding that there is no Missouri authority for this view, the State points to the decision of the North Dakota Supreme Court in In the Interest of K.B., 490 N.W.2d 715 (N.D.1992). ³ In that case, the child was born five years before the natural mother and presumed father divorced in 1981, and in 1989 state social services brought an action to collect support from the presumed father. Id. at 716. In this first proceeding, the presumed father claimed that he was not the biological father of the child, a defense that was vindicated through genetic testing. Id. The trial court...