State of Ariz. v. Sasse

• Decision Date: 27 November 1990
• Docket Number: No. 90-172,90-172
• Parties: STATE OF ARIZONA, Kathleen Rose Sanciprian, and Jerry D. Cook, Guardian ad litem for Juliet Margarite Rose, a minor child, Petitioners and Respondents, v. Alan Douglas SASSE, Respondent and Appellant.
• Court: Montana Supreme Court

Page 598

801 P.2d 598

245 Mont. 340

STATE OF ARIZONA, Kathleen Rose Sanciprian, and Jerry D.

Cook, Guardian ad litem for Juliet Margarite Rose, a minor child, Petitioners and Respondents, v. Alan Douglas SASSE, Respondent and Appellant.

No. 90-172.

Supreme Court of Montana.

Submitted Sept. 9, 1990.

Decided Nov. 27, 1990.

Kathleen M. Fritsch, argued, Glendive, for Alan Douglas sasse.

Ann Hefenieder argued, Dept. of Social and Rehabilitation Services, Child Support Enforcement Div., Billings, for State of Ariz.

Jerry D. Cook, Glendive, guardian ad litem for child.

SHEEHY, Justice.

In this case, Alan Douglas Sasse maintains that the five-year statute of limitations contained in Sec. 40-6-108(1)(b), MCA, bars the court from declaring that he is the natural father of Juliet Margarite Rose, a minor child. The District Court, Seventh Judicial District, Dawson County, rejected Sasse's statute of limitations claim and entered judgment declaring him to be the natural father of Juliet Margarite Rose. From that judgment, Sasse appeals. We affirm the District Court.

The minor child, Juliet Margarite Rose, was born in New Jersey on June 21, 1975. At the time of the child's conception and birth, Kathleen was married to Stelios Kazantzoglou. The mother, Kathleen, had married Stelios in 1971, but was living apart from Stelios and working in Tennessee. At that time, Sasse, age 17, was in the Armed Services and stationed in Tennessee. He frequented the cafe where Kathleen worked and sometime in August or September of 1974, Kathleen invited Alan to her home which resulted in one instance of sexual intercourse. Shortly thereafter, Sasse was transferred to another station.

Kathleen and Stelios divorced in September, 1976, in West Virginia. The court there found that the parties had not lived together as man and wife for over two years and that no children were born to the marriage. Kathleen resumed her maiden name of Rose. On June 24, 1980, an action was brought in the State of Arizona by that state on behalf of Kathleen (who had now married Cesar Sanciprian) against Sasse for determination of paternity and for child support for Juliet. Sasse made a special appearance in that action and it was dismissed for lack of personal jurisdiction over him.

The instant action was begun by Kathleen with the State of Arizona as a co-plaintiff and was transferred to Montana for prosecution, on September 25, 1987, under the Uniform Reciprocal Enforcement of Support Act, when the child was 12 years old. Sasse filed his answer to the complaint, noting that he had no knowledge of Kathleen's marital status at the time of their contact since she was living alone in her apartment, but admitting that he had one occasion of sexual intercourse with her in 1974. In his answer, he did not plead the affirmative defense of the statute of limitations.

The District Court appointed a guardian ad litem for the minor child who was joined as a petitioner by stipulation of the parties.

Pursuant to Sec. 40-6-110, MCA, the District Court caused notice to be given to Stelios Kazantzoglou of the proceedings. He has not intervened or otherwise appeared in the proceedings. The District Court, perceiving that the constitutional validity of the five-year statute of limitations contained in Sec. 40-6-108, MCA, was involved in the action, gave notice to the Attorney General of Montana, who decided not to appear.

The District Court refused to apply the statute of limitations on two principal grounds (1) that Sasse had waived the statute of limitations by not including it in his answer to the complaint, and (2) that in any event, the statute in this case was unconstitutional. We will confine our discussion in this case only to the constitutional issue since we find it dispositive.

By law, Stelios is presumed to be the father of Juliet because he and the mother, Kathleen, were married to each other and the child was born during the marriage. Section 40-6-105(1)(a), MCA. The presumption, however, may be rebutted in an appropriate action by a preponderance of the evidence. Section 40-6-105(2), MCA.

In a case where the existence of the father and child relationship is presumed, an action may be brought for the purpose of declaring the nonexistence of the presumed father and child relationship not later than five years after the child's birth. Section 40-6-108(1)(b), MCA.

On the other hand, an action to determine the existence or nonexistence of the father and child relationship as to a child who has no statutorily presumed father (for example, born out of wedlock) may be brought by the child up to two years after the child attains the age of majority, or may be brought by a state agency under Title IV-D of the Social Security Act before the child attains the age of majority. Section 40-6-108(3), MCA.

On the basis that Sec. 40-6-108 creates a classification which distinguishes for disparate treatment children with presumed fathers and children without presumed fathers, the District Court held the statute in violation of the equal protection guarantees of Art. II, Sec. 4 of the Montana Constitution and the Fourteenth Amendment of the United States Constitution.

Our cases on this point do not appear to be consistent. InBorchers v. McCarter (1979), 181 Mont. 169, 592 P.2d 941, we had a case where the mother of a child with a presumed father (born in wedlock) brought an action for support of the child against another man as the alleged natural father. Thus, the mother, in order to obtain support, had to establish a parent-child relationship between the child and a nonpresumed person. To do this she had first to rebut the statutory presumption of paternity in the presumed father. Because she had not rebutted the presumption within five years of the child's birth, this Court held that her claim was barred by the five-year statute of limitations.

In State, Department of Revenue v. Wilson (Mont.1981), 634 P.2d 172, the natural mother of a child born out of wedlock (no presumed father) brought an action to determine the paternity of the alleged natural father. At that time, there was a three-year statute of limitations applicable to this class of action. This Court noted the disparate treatment of children born in wedlock and those born out of wedlock, in that children born in wedlock could bring an action for support against the presumed father at any time within the majority, whereas, under the three-year statute, the child born out of wedlock lost its right of determination of paternity and child support after three years from birth. We there held that the three-year statute was invalid under the Fourteenth Amendment of the United States Constitution because it was "not substantially related to a permissible state interest." Wilson, 634 P.2d at 174.

In Matter of W.C. (1983), 206 Mont. 432, 671 P.2d 621, the child was born in wedlock and thus had a presumed father. The mother and the presumed father were divorced nearly three years after the birth and the final decree stated that the child was born of the parties' marriage. Later, the mother married the alleged natural father, who filed an action to determine the parentage of the child. The District Court dismissed the petition on the basis that the alleged natural father was barred by the five-year statute of limitations from challenging the presumed father and child relationship. In upholding the application of the five-year statute of limitations, this Court distinguished the decisions of the United States District Court in Mills v. Habluetzel (1982), 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 and Pickett v. Brown (1983), 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372, which cases had struck down one-year and two-year statutes of limitations respectively. The distinguishing factor utilized by this Court was that in the case of W.C., there was no question involved of the child's right to support. Since the action was brought by the natural father who was then supporting the child, this Court held that there was no discrimination as between children born in wedlock and those born out of wedlock as to their right to claim support.

In the case at bar, the District Court relied on the holding in Wilson, and decided that the five-year statute of limitations in Sec. 40-6-108, MCA, was unconstitutional because it denied the equal protection of the laws "by affording a twenty (20) year limitation period for paternity actions involving illegitimate children and a five (5) year limitation period for paternity actions involving legitimate children."

In Wilson, this Court utilized the rational basis test in determining the equal protection issue. We here examine the level of test to be used and the application of the statutes of limitations in paternity cases in the light of Clark v. Jeter, 486 U.S. 456, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). There the United States Supreme Court had before it a case involving Pennsylvania law where a child born out of wedlock was required to prove paternity to receive support from the natural father, and the suit to establish paternity was required to be brought within six years of the child's birth. By contrast, under Pennsylvania law, a child born in wedlock could seek support from his or her parents at any time.

In Clark, the United States Supreme Court determined to apply a level of intermediate scrutiny in determining the equal protection issues. The Court said:

In considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment, U.S. Const., Amdt. 14, Sec. 1, we apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. (Citing cases.) Classifications based on race or national origin, e.g., Loving v. Virginia, 388 U.S. 1, 11 [87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010] (1967) and classifications affecting fundamental rights, e...