State ex rel. Wieber v. Hennings

• Decision Date: 11 August 1981
• Docket Number: No. 13290,13290
• Citation: 311 N.W.2d 41
• Parties: STATE of South Dakota ex rel. Julie WIEBER, Plaintiff, Appellant, v. Vern HENNINGS, Defendant and Appellee. . On Brief
• Court: South Dakota Supreme Court

Page 41

311 N.W.2d 41

STATE of South Dakota ex rel. Julie WIEBER, Plaintiff, Appellant, v. Vern HENNINGS, Defendant and Appellee.

No. 13290.

Supreme Court of South Dakota.

On Brief Aug. 11, 1981.

Decided Oct. 14, 1981.

Joseph G. Rimlinger of East River Legal Services, Sioux Falls, for plaintiff, appellant.

Vern Hennings, pro se.

HENDERSON, Justice.

ACTION

Julie Wieber (appellant) appeals from a judgment entered by the trial court which directed Vern Hennings (appellee) to pay $100.00 per month as child support for the minor child Angela Marie Wieber until said child reaches the age of sixteen years. Appellee was also ordered to pay $5,659.38 in arrearages and medical expenses. On appeal, appellant contends that under the statutory scheme of this state, an arbitrary classification exists between legitimate and illegitimate children with regard to the duration of lawfully required support payments. Appellee filed no brief and is proceeding pro se.

FACTS

The State of South Dakota ex rel. appellant commenced this action by filing a complaint alleging appellee to be the father of the aforementioned minor child. Accompanying this complaint was an assignment of child support rights from appellant, the child's mother, to the State in return for ADC benefits. Subsequent to a probable cause hearing and various filings by the parties, appellee signed an affidavit of paternity.

A judgment was accordingly entered declaring appellee to be the father of the child.

Following this judgment, the trial court conducted a hearing which resulted in appellee being ordered to provide support for the child until her sixteenth birthday. This appeal ensued. ¹

ISSUE

Does SDCL 25-8-29 violate the United States Constitution because it denies equal protection to illegitimate children? We hold that it does.

DECISION

This Court has utilized a two-part test in determining whether the equal protection clause has been violated. ² City of Aberdeen v. Meidinger, 89 S.D. 412, 233 N.W.2d 331 (1975). The first part of this test is "whether the statute does set up arbitrary classifications among various persons subject to it." Id., at 415, 233 N.W.2d at 333. The second part of the test is the application of the appropriate standard of review to the arbitrary classification. Dorian v. Johnson, 297 N.W.2d 175 (S.D.1980).

Initially, then, it must be determined if SDCL 25-8-29, when read in conjunction with the other applicable statutes, creates an arbitrary classification between illegitimate and legitimate children. SDCL 25-8-29 reads as follows:

If the finding or verdict be against the defendant, the court shall give judgment against him declaring paternity and for support of the child.

The judgment shall be for annual amounts, equal or varying, having regard to the obligation of the father under §§ 25-8-1 to 25-8-3, inclusive, as the court directs, until the child reaches the age of sixteen years.

The payments may be required to be made at such periods or intervals as the court directs.

We find it unnecessary to quote verbatim the various codified references establishing a parent's duty to support his or her minor child, legitimate or illegitimate. Suffice it to say, under the statutory scheme of this state, such a duty exists. ³ Furthermore, this Court has recently held that a minor child has an inherent right to support from its natural parents; this right exists at common-law and is separate and distinct from any statutory obligation. Johansen v. Johansen, 305 N.W.2d 383 (S.D.1981).

In South Dakota, minors are defined as individuals being less than eighteen years of age. SDCL 26-1-1. Also, the authority of a parent ceases upon the child attaining majority. SDCL 25-5-17(3).

By its express terms, SDCL 25-8-29 abrogates the right of an illegitimate child to receive support from its natural father until the illegitimate reaches majority. As a consequence, we hold that SDCL 25-8-29 creates an arbitrary classification between legitimate and illegitimate children.

We next review SDCL 25-8-29 under the appropriate standard. Dorian v. Johnson, supra. A legislative classification based upon illegitimacy must bear an evident and substantial relation to the particular interest the statute is designed to serve. United States v. Clark, 445 U.S. 23, 100 S.Ct. 895, 63 L.Ed.2d 171 (1980); Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978) (plurality opinion); see id., 439 U.S. at 279, 99 S.Ct. at 530, 58 L.Ed.2d at 518 (BRENNAN, J., dissenting); see also Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977).

A perusal of recent U.S. Supreme Court cases indicates that the bulk of the Court's decisions run against distinctions in state law that discriminate against illegitimates, such as those in a wrongful death statute allowing only legitimate children to recover damages for the death of a parent, Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), a workmen's compensation law allowing legitimates to first claim, prioritizing illegitimates with "other dependents," and awarding payment only if first-priority claimants do not exhaust the collectable limit, Weber v. Aetna Casualty & Surety Company, 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), and a state statute designed to deny illegitimates welfare benefits which legitimate children could obtain, New Jersey Welfare Rights Organization v. Cahill, 411 U.S. 619, 93 S.Ct. 1700, 36 L.Ed.2d 543 (1973).

But the Court has upheld distinctions in state or federal law that gave priority to others (including illegitimates who had been legitimated) over illegitimates who had merely been acknowledged in intestate succession, Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971), reh. den. 402 U.S. 990, 91 S.Ct. 1672, 29 L.Ed.2d 156 (1971), and required children other than those who were legitimate, adopted, or eligible to inherit property from the insured under state law (these were automatically qualified) to show dependency (as defined in the statute) on the deceased before being declared eligible to collect surviving children's benefits under social security, Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976).

In Parham v. Hughes, 441 U.S. 347, 352, 99 S.Ct. 1742, 1746, 60 L.Ed.2d 269, 275 (1979) (citations omitted), the U. S. Supreme Court stated:

The Court has held on several occasions that state legislative classifications based upon illegitimacy i. e., that differentiate between illegitimate children and legitimate children violate the Equal Protection Clause. The basic rationale of these decisions is that it is unjust and ineffective for society to express its condemnation of procreation outside the marital relationship by punishing the illegitimate child who is in no way responsible for his situation and is unable to change it.

Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973) dealt with a situation apposite to the case at bar. In Gomez, the Court held that a Texas statute which created a judicially enforceable right to support for legitimate children from their natural fathers but denied such a right to illegitimates was a denial of equal protection and therefore unconstitutional. In reaching its decision, the majority in Gomez stated (citations omitted):

(A) State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally. We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother. For a State to do so is "illogical and unjust." We recognize the lurking problems with respect to proof of paternity. Those problems are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination.

409 U.S. at 538, 93 S.Ct. at 875, 35 L.Ed.2d at 60.

Similarly, in the instant case, we cannot say that there exists any permissible legislative purpose which bears a substantial relationship to the classification in question. We accordingly hold that SDCL 25-8-29 is violative of the equal protection of the U.S. Constitution.

The unconstitutional provisions of a statute may be extracted and the remainder left intact. Direct Auto Buying Service, Inc. v. Welch, 308 N.W.2d 570 (S.D.1981); South Dakota Ass'n., etc. v. State Dept. of Revenue, 280 N.W.2d 662 (S.D.1979). Hence, SDCL 25-8-29 is hereby qualified to read as follows:

If the finding or verdict be against the defendant, the court shall give judgment against him declaring paternity and for support of the child.

The judgment shall be for annual amounts, equal or varying, having regard to the obligation of the father under §§ 25-8-1 to 25-8-3, inclusive, as the court directs, until the child reaches the age of sixteen years.

The payments may be required to be made at such periods or intervals as the court directs.

The judgment of the trial court is affirmed as modified and remanded in accord with the now announced qualification of SDCL 25-8-29.

DUNN and FOSHEIM, JJ., concur.

WOLLMAN, C. J., and MORGAN, J., dissent.

MORGAN, Justice (dissenting).

I respectfully dissent because the appellant lacks standing on appeal to challenge the decision of the trial court. This is a jurisdictional issue that we can raise sua sponte. Long v. Knight Const. Co., Inc., 262 N.W.2d 207, 209 (S.D.1978).

I have no disagreement with the majority's discussion or resolution of the constitutional issue, but I am personally opposed to the exercise of our rather awesome authority...