Yetter v. Commeau

• Decision Date: 01 August 1974
• Docket Number: No. 42793,42793
• Citation: 84 Wn.2d 155,524 P.2d 901
• Parties: Roberta YETTER, Appellant, v. Kenneth H. COMMEAU, Respondent.
• Court: Washington Supreme Court

Page 155

84 Wn.2d 155

524 P.2d 901

Roberta YETTER, Appellant, v. Kenneth H. COMMEAU, Respondent.

No. 42793.

Supreme Court of Washington, En Banc.

Aug. 1, 1974.

Christopher T. Bayley, King County Pros. Atty., Robert L. Burnham, Seattle, Kenneth A. Lee, Bothell, for appellant.

R. Wayne Cyphers, Seattle, for respondent.

HAMILTON, Associate Justice.

This is an appeal from the dismissal, on a pretrial motion, of a petition filed under the provisions of the uniform reciprocal enforcement of support act (URESA), RCW 26.21, seeking support for an allegedly illegitimate child. The primary question presented is: May the factual question of paternity, as a prelude to a duty of child support, be resolved in a URESA proceeding?

The trial judge answered in the negative and dismissed the petition. We disagree, reverse and remand.

The operative circumstances, as gleaned from the brief record, are: On September 18, 1972, Ms. Roberta Yetter filed a URESA petition in Snohomish County, Washington. She alleged in the petition that the respondent, Kenneth H. Commeau, residing in King County, Washington, was the natural father of a child born to her on February 27, 1969. She further alleged that she was married to another man at the time of her child's conception and birth, but had been separated from him for some 19 months and had had no marital relations with him for 2 years prior to the birth.

Upon the basis of these allegations, the Superior Court for Snohomish County certified the petition and ordered it transmitted to the Superior Court for King County, pursuant to RCW 26.21.210. ¹ Acting upon the petition, the Superior Court for King County, at the behest of the prosecuting attorney, issued an order directing the respondent to appear and show cause, if any, why the petition should not be granted. Respondent then filed a motion to dismiss, supported by his affidavit in which he denied paternity and asserted the child involved was the issue of appellant's former marriage, which had been dissolved by divorce subsequent to the child's birth.

At the hearing on the motion, it was conceded and agreed between counsel that: (a) the child had not been mentioned in appellant's divorce proceedings; (b) respondent was married to another woman at the time of conception and birth of the child; and (c) no duty of support for the child had been sought or imposed upon respondent pursuant to either a filiation proceeding, RCW 26.24, or the criminal nonsupport statute, RCW 26.20.

In granting respondent's motion to dismiss, the trial judge reasoned that, because there was no common law duty of support on the part of a putative father of an allegedly illegitimate child, the only duty of such support in this state arose out of either a filiation proceeding or a criminal nonsupport action; hence, until one of such proceedings established paternity and the duty of support, there was no URESA obligation to enforce. In short, he concluded that the URESA neither erected a new or additional duty of support on the part of a putative father nor provided a procedure for establishing such.

In reaching our conclusion that the trial judge erred in dismissing the petition, we begin with the observation that, commencing in 1950, URESA legislation was enacted in most, if not all, states and territories of the Union. The purpose of such enactments was to provide a uniform, simplified, and convenient method whereby a dependent could obtain needed monetary support from another, obligated to provide such, by an interstate or, with the addition of provisions such as RCW 26.21.210, an intrastate proceeding. Being remedial in nature, such legislation is to be accorded a liberal construction, bearing in mind its humanitarian purpose. Every effort should be made by the courts to render it operable and effective. Davidson v. Davidson, 66 Wash.2d 780, 405 P.2d 261 (1965), and cases cited therein.

It is manifest, however, that to trigger and sustain a URESA proceeding there must exist an enforceable duty of support on the part of a respondent, and it is equally clear that whether a particular relationship gives rise to such a duty may vary from state to state. Davidson v. Davidson, Supra. See generally Kelso, Reciprocal Enforcement of Support: 1958 Dimensions, 43 Minn.L.Rev. 875 (1959); W. Brockelbank, Interstate Enforcement of Family Support (The Runaway Pappy Act) 61--67 (2d ed. F. Infausto 1971); H. Krause, Illegitimacy: Law and Social Policy 52 (1971).

Looking then to this state's URESA, we find the following pertinent provisions:

(6) 'Duty of support' includes Any duty of support imposed Or imposable by law, or by any court order, decree or judgment, whether interlocutory or final, whether incidental to a proceeding for divorce, separate maintenance Or otherwise.

(Italics ours.) RCW 26.21.010(6);

The remedies herein provided are In addition to and not in substitution for any other remedies.

(Italics ours.) RCW 26.21.020;

Duties of support applicable under this law are those imposed Or imposable under the laws of any state where the obligor was present during the period for which support is sought. . . .

(Italics ours.) RCW 26.21.060;

All duties of support, including arrearages, are enforceable by action Irrespective of the relationship between the obligor and the obligee. Jurisdiction of all proceedings hereunder shall be vested in the superior court.

(Italics ours.) RCW 26.21.080.

Reading these provisions in a liberal light consistent with the remedial purposes of the URESA, it appears clear that the legislation undertakes to provide remedies in addition to existent remedies, and contemplates the imposition and enforcement of any duty of support, regardless of the relationship between the obligor and obligee, imposable under the law of the state where the obligor was present during the period for which support is sought.

Since we are concerned here with an intrastate URESA proceeding, the foregoing interpretation of the statutory language perforce posits a threshold question: Is the duty to support an illegitimate child by a putative father a duty 'imposable' under the law of this state?

We answer this question in the affirmative, for it is certain that the duty to support illegitimate children is a duty which can be imposed upon a putative father under the law of Washington. This has been established under various statutes, among which is found the filiation statute, RCW 26.24, and the criminal nonsupport statute, RCW 26.20. State v. Russell, 68 Wash.2d 748, 415 P.2d 503 (1966). In addition, the proposition finds support in numerous declarations of public policy by this court, as well as the demonstrated concern of this state in the protection of its children. State v. Bowen, 80 Wash.2d 808, 498 P.2d 877 (1972); State v. Coffey, 77 Wash.2d 630, 465 P.2d 665 (1970); State v. Schimschal, 73 Wash.2d 141, 437 P.2d 169 (1968); State v. Russell, Supra; State Brown, 52 Wash.2d 92, 323 P.2d 239 (1958); Van Tinker v. Van Tinker, 38 Wash.2d 390, 229 P.2d 333 (1951); In re Hudson, 13 Wash.2d 673, 126 P.2d 765 (1942).

We note also that the United States Supreme Court, as well as our own state legislature, has given broad cognition to the rights of illegitimate children and their putative fathers in the area of custody proceedings. See e.g., Stanley v. Illinois, 405 U.S. 645, 31 L.Ed.2d 551, 92 S.Ct. 1208 (1972); Laws of 1973, ch. 134, § 1, p. 395. It has also been affirmatively held that a denial of the duty to support illegitimate children where the father is legally obligated to support legitimate children is a violation of the equal protection clause of the fourteenth amendment to the United States Constitution. Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973); Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Stanley v. Illinois, Supra; Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968). The overall effect of these decisions can well be construed as a nullification of the common law doctrine of Filius nullius and the offshoots thereof. In any event, we are convinced there can be no doubt that the duty of a putative father to support an illegitimate child or children is clearly one 'imposable' under the law of this state.

We come then to the principal issue, I.e.: May the factual question of paternity, as a precursor to a duty of support, be resolved in a URESA proceeding?

With respect to this issue, respondent contends that the phrase 'imposable by law,' as utilized in RCW 26.21.010(6), construed in the overall context of our URESA, imports a requirement that the paternity issue and its resultant duty of support must be established in an independent proceeding, I.e., a filiation or nonsupport action, before the support obligation may be enforced in a URESA proceeding.

In support of his position, respondent points to an amendment to URESA enactments proposed in 1968 by the National Conference of Commissioners on Uniform State Laws, which has not been adopted in this state. This proposed amendment reads:

If the obligor asserts as a defense that he is not the father of the child for whom support is sought and it appears to the court that the defense is not frivolous, and if both of the parties are present at the hearing or the proof required in the case indicates that the presence of either or both of the parties is not necessary, the court may adjudicate the paternity issue. Otherwise the court may adjourn the hearing until the paternity issue has been adjudicated.

Uniform Reciprocal Enforcement of Support Act, Annot., 9 U.L.A. 809, 872 (1973).

Respondent argues that implicit in this proposed amendment, as well as the legislature's failure to adopt it, lies a tacit acknowledgment that the URESA as presently in force in this state does not embrace the resolution of a paternity issue. Additionally,...