Williams County Social Services Bd. v. Falcon, 10732

• Decision Date: 24 April 1985
• Docket Number: No. 10732,10732
• Parties: WILLIAMS COUNTY SOCIAL SERVICES BOARD, and Jonathan Eugene Nice, through Michon Sax as Guardian Ad Litem, and Paula Nice, Petitioners and Appellees, v. Bobby J. FALCON, Respondent and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 170

367 N.W.2d 170

WILLIAMS COUNTY SOCIAL SERVICES BOARD, and Jonathan Eugene

Nice, through Michon Sax as Guardian Ad Litem, and Paula Nice, Petitioners and Appellees, v. Bobby J. FALCON, Respondent and Appellant.

Civ. No. 10732.

Supreme Court of North Dakota.

April 24, 1985.

Anseth & Zander, Williston, for petitioners and appellees; argued by Janet Holter Zander, Williston.

Bjella, Neff, Rathert, Wahl & Eiken, Williston, for respondent and appellant; argued by William E. McKechnie, Williston.

GIERKE, Justice.

Bobby J. Falcon [Falcon] appealed from a district court judgment entered upon a jury verdict in a disputed paternity action. We affirm.

Jonathan Nice [Jonathan] was born out of wedlock to Paula Nice [Paula] on November 19, 1975. In 1975, Paula applied for and received public assistance on behalf of Jonathan and executed an assignment of rights of support to the North Dakota Social Service Board and the Williams County Social Service Board [Board], naming Falcon as the father. On May 26, 1983, the Board and Jonathan, through his guardian ad litem, Michon Sax, commenced a paternity action against Falcon alleging that he was the biological father of Jonathan and seeking to recover $19,762.36 in public assistance payments made by the Board to Paula from June 1975 to January 1980 for Jonathan's benefit. Paula was joined as a necessary party before trial. Unless otherwise indicated, the Board, Jonathan, and Paula are hereinafter collectively referred to as petitioners.

The petitioners' case was based on Paula's testimony that she had had sexual relations with Falcon on February 28, 1975, at a party in Williston, and on blood tests that indicated a 94.5% likelihood of Falcon's paternity.

Falcon denied that he had ever had sexual relations with Paula and contended that he was visiting friends in Wakita, Oklahoma, on February 28, 1975. Falcon produced three witnesses who testified that they were with Falcon in Oklahoma on February 28, 1975. Falcon also disputed the statistical findings of the blood test regarding the likelihood of paternity. Falcon also contended that the equitable doctrine of laches barred the petitioners' action.

The parties stipulated that Paula had received $19,762.36 from the Board for the care and support of Jonathan. The jury returned a special verdict finding that Falcon had had sexual relations with Paula, and that he was the father of Jonathan. Judgment was entered accordingly, and Falcon appealed.

I

Falcon contends that the equitable doctrine of laches bars the petitioners' action because the Board waited seven years after being informed that Falcon was the alleged father of Jonathan before commencing this action. Falcon contends that the passage of time has created a severe hardship on his ability to obtain objective evidence to establish that he was in Oklahoma on February 28, 1975. Falcon also asserts that, because he is currently married and has two children, there has been a material change in his circumstances which necessitates the application of the doctrine of laches.

Initially, we note that Michon Sax brought this action as guardian ad litem on behalf of Jonathan under the provisions of the Uniform Parentage Act (Ch. 14-17, NDCC). Section 14-17-06, NDCC, is identical to Section 7 of the Uniform Parentage Act and provides that an action brought by or on behalf of a child whose paternity has not been determined is not barred until three years after the child reaches majority. ¹ In Throndset v. J.R., 302 N.W.2d 769 (N.D.1981), we stated that Section 14-07-06, NDCC, did not bar a paternity action in which the Social Service Board was a party if the child was also a named party to the action. We also stated that once paternity is determined, the time limitation of Section 14-17-06, NDCC, did not bar the Social Service Board from recovery in the same action for amounts expended for the care and maintenance of the child. See Section 14-17-16(1) and Chapter 14-08.1, NDCC.

Falcon argues that even though this action was brought within the applicable statute of limitations, the Board should not share the same statute of limitations as Jonathan and its action should be barred by laches. Falcon also argues that the Board should not be permitted to recover a money judgment against him because of the delay. ² However, we must examine Falcon's arguments within the procedural context in which they were raised in the lower court.

Before trial, Falcon moved for summary judgment based upon laches. Counsel stipulated that Jonathan was born on November 19, 1975; that Paula executed an acknowledgment of assignment of rights in 1975 wherein she stated that Falcon was Jonathan's father; and that the paternity action against Falcon was commenced on May 26, 1983. Additionally, Falcon submitted affidavits of a private investigator, his attorney, and himself which, in substance, stated that the passage of time had caused a material change in his condition and created a severe hardship on his ability to locate witnesses and to obtain hotel or motel receipts documenting his trip to Oklahoma. The trial court denied Falcon's motion for summary judgment.

Summary judgment is a procedural device available for the prompt and expeditious disposition of a controversy without a trial if there is no dispute as to either the material facts or the inferences to be drawn from undisputed facts, or if only a question of law is involved. Herman v. Magnuson, 277 N.W.2d 445, 454 (N.D.1979). If different factual inferences may be drawn, they must be drawn in favor of the party opposing summary judgment. Sigurdson v. Lahr & Lahr, Inc., 299 N.W.2d 792 (N.D.1980).

Laches is a delay or lapse of time in commencing an action that works a disadvantage or prejudice to the adverse party because of a change in conditions during the delay. Grandin v. Gardiner, 63 N.W.2d 128 (N.D.1954). However, the mere delay or lapse of time in commencing an action does not of itself constitute laches. Burlington Northern, Inc. v. Hall, 322 N.W.2d 233 (N.D.1982); Strom v. Giske, 68 N.W.2d 838 (N.D.1954). Whether or not laches bars a claim must be determined by examining the underlying facts and circumstances of each particular case. Burlington Northern, Inc. v. Hall, supra; Strom v. Giske, supra. In Strom v. Giske, 68 N.W.2d at 845, we said that "laches is a question of fact and each case must stand or fall on its own facts and circumstances." See 27 Am.Jur.2d, Equity, Sec. 176 [whether the elements of laches have been established in any particular case is a question of fact and whether, in view of the established facts, it would be unjust to the defendant to enforce the claim is a question of law].

Falcon asserts that the undisputed facts establish that he was unduly prejudiced by the delay of the Board in not asserting its claim at an earlier date. The length of delay in commencing the action, Falcon's inability to obtain motel receipts, and his subsequent marriage were not disputed. However, prejudice that may be inferred from those facts required that all the facts and circumstances be evaluated by the trier of fact. Furthermore, the reason for the delay ³ as well as the availability of witnesses must be considered along with all the other facts and circumstances of the case. Because the availability of laches as a defense depends on the facts and circumstances of each case, we believe the trial court properly denied Falcon's motion for summary judgment.

The record reflects that no instructions on laches were requested by the parties or given to the jury. Two factual issues were answered by the jury in its special verdict form; however, the issue of laches was not specifically addressed in the special verdict form. Rule 49(a), NDRCivP, provides, in part, that if the court:

"omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict."

The record does not reflect that any party demanded that the issue of laches be submitted to the jury or that the court made a finding as to the underlying factual circumstances concerning laches. Consequently, we conclude that a finding in accord with the judgment is deemed to have been made on the underlying factual circumstances concerning laches.

We do not believe the facts and circumstances of this case, as developed at trial, require application of the doctrine of laches.

The Minnesota Supreme Court was faced with a factually similar case in M.A.D. v. P.R., 277 N.W.2d 27 (Minn.1979). In that case, a child was born in 1961. The mother informed the county welfare department of the name of the alleged father in 1963 when she asked for assistance. The mother commenced the action in 1976 when requested by the county welfare department. The record was silent on why the county did not proceed more promptly. In the interim, the alleged father married and had two children. In 1972, he sustained serious injuries in an automobile accident and had difficulty with his memory. At trial, he testified that he did not believe he was the father but could not remember why.

The Minnesota Supreme Court held that the doctrine of laches was not available as a defense because the matter had been resolved by an express statutory provision. The court also said, however, that even if laches were available, given the facts of that case, the equities of the father would not exceed those of the child, who was the ultimate beneficiary.

Our research has not revealed a case, nor has any been called to our attention, in which an alleged father has successfully raised laches as a defense to a paternity action. Our research has revealed several cases in which an alleged father...