NO. 33-60 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

LN THE MATTER OF 

W.C., 

Petitioner and Appellant, 

and 

E.L.S.B.C., Natural Mother ot 

T.M.B., Putative Minor, 

and 

R. J.B., 

Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John S. Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Oleson Law Firm; James Oleson argued, Kalispell, 

Montana 

Baldassin, Connell & Beers, Missoula, Montana 

For Respondent: 

Jonkel & Kemmis; Daniel Kernmis argued, Missoula, 

Montana 

Thomas Poullot, Dept. of Revenue, Helena, Montana 

- Constitutionality-Hon. Mike - Greely, Attorney General, 

Helena, Montana 

- 

Submitted: September 16, 1983 

~ecided : November 2, 1983 

Filed: NOV 2 - 1983 

-- 

Clerk 
Mr. Justice L.C. Gulbrandson delivered the Opinion of the 

Court. 

Petitioner appeals from a dismissal of his action by 

the District Court of the Fourth Judicial District, Missoula 

County. 

Erna (E.L.S.B.C.), natural mother of Tara (T.M.B), and 

Rodger (R.J.B), the respondent, were married on January 23, 

1976. Tara was born on June 22, 1976, five months following 

the marriage of respondent and Erna. Respondent was 

identified as Tara's father on her birth certificate. 

On May 24, 1979, a divorce decree was entered 

dissolving the marriage of Erna and the respondent. The 

final decree stated that Tara was a child born of the 

parties' marriage. The decree ordered respondent to provide 

child support and allowed him visitation rights. 

In June, 1982, the petitioner-appellant, Wallace 

(W-c. )I married Erna. On July 21, 1982, 

petitioner-appellant filed an action in Lake County to 

determine the parentage of Tara. The petition contained the 

results of an HLA blood test stating that the probability of 

parentage of appellant to Tara was 99.77 percent. On 

September 15, 1982, the case was transferred to Missoula 

County. The District Court dismissed the petition on 

December 15 I 1982, on the basis that the 

petitioner-appellant was barred by the five-year statute of 

limitations, Section 40-6-108(1)(b), MCA, from challenging 

the presumed father and child relationship between 

respondent and Tara. Appellant now argues that the District 

Court erred in dismissing his petition. 
~nitially, appellant asserts that the five-year 

statute of limitations contained in Section 40-6-108(1)(b), 

MCA, has been rendered unconstitutional by the United States 

Supreme Court's decisions in Mills v. Habluetzel (1982), 

456 U.S. 91, 71 L.Ed.2d 770, and Pickett v. Brown (1983), 

U.S. , 76 L.Ed.2d 372. 

In Mills, the Court struck down Texas' one-year 

statute of limitations in an action for child support on 

behalf of an illegitimate child. The decision was based 

upon equal protection considerations. The Court held that 

the one-year statute of limitations was unconstitutional 

because it made it more difficult for illegitimates to 

obtain child support than for legitimates to obtain support. 

In Pickett, the Court struck down a Tennessee statute that 

required paternity and support actions to be filed within 

two years unless the child was a public charge. 

The deprivation of equality by governmental 

classification that was present in Mills and Pickett is 

absent in the case at bar. In Mills, the Court held that 

illegitimate children were denied equality because their 

right to bring an action for support was more restricted 

than for legitimate children. Thus, the Court determined 

the extent to which the right of illegitimate children to 

support recognized in Gomez v. Perez (1973), 409 U.S. 535, 

35 L.Ed.2d 56, may be circumscribed by a state's interest in 

avoiding prosecution of stale or fraudulent claims. 

Similarily, in Pickett, the Court relied heavily on its 

decision in Mills. The Pickett Court stated: 

"Much of what was said in the opinion in 

Mills is relevant here, and the 

principles discussed in Mills require us 

to invalidate this limitations period on 
equal protection grounds. 

"Although Tennessee grants illegitimate 

children a right to paternal support . . . and provides a mechanism for enforcing 

that right . . . the imposition of a 

two-year period within which a paternity 

suit must be brought . . . restricts the 

right of certain illegitimate children to 

paternal support in a way that the 

identical right of legitimate children is 

not restricted. In this respect, some 

illegitimate children in Tennessee are 

treated differently from, and less 

favorably than, legitimate children." 

In the present case we are not considering the 

constitutionality of a statute of limitations that would bar 

an illegitimate child's right to support. The child herein 

involved is not illegitimate because respondent has been 

presumed to be the father in accordance with Section 

40-6-105(1)(a), MCA. In addition, the action is not being 

brought on behalf of the minor child and there is no 

allegation the child is being denied support. The Montana 

statutes at issue in this case are not unconstitutional 

under Mills or Pickett because they do not differentiate 

between legitimate and illegitimate children. Section 

40-6-107(1), MCA. The invidious discrimination discussed in 

Mills and Pickett is not present here. Indeed, the Montana 

statute does not discriminate in any way against the 

appellant. Section 40-6-108 states: 

"(1) An action may be commenced: . . . (b) for the purpose of declaring the 

nonexistence of the father and child 

relationship presumed under subsection 

(a), (b), or (c) of 40-6-105(1), only if 

the action is brought within a reasonable 

time after obtaining knowledge of 

relevant facts, but not later than 5 

years after the child's birth." 

In short, Mills and Pickett are not controlling and do not 

render Section 40-6-108(1)(b), MCA, unconstitutional. 
Likewise, the District Court did not err in relying on 

our decision in Borchers v. McCarter (1979), 181 Mont. 169, I 

592 P.2d 941, when it dismissed the appellant's petition. 

The appellant argues that Mills and Pickett, along with our 

decision in State Dept. of Revenue v. Wilson (Mont. 1981), 

634 P.2d 172, 38 St.Rep. 1299, overruled our decision in 

Borchers. 

In Borchers, a petition was filed more than five years 

after a child's birth to have someone other than the 

presumed father declared the father. The District Court 

granted the petition and we reversed on appeal holding that 

a person wishing to establish a parent-child relationship 

between a child and a nonpresumed person must first rebutt 

the presumption of another's paternity and Section 

40-6-108(1)(b), MCA, was a bar to an action to rebutt the 

presumption. Similarily, in the present case, the District 

Court held that Section 40-6-108(1)(b), MCA, barred 

appellant's petition challenging the presumed father-child 

relationship. 

In Wilson, the issue before us was whether the 

three-year statute of limitations on the determination of 

paternity in Section 40-6-108(3), MCA, violated the equal 

protection clause of the Fourteenth Amendment of the United 

States Constitution and Article 11, Section 4, of the 

Montana Constitution. Section 40-6-108(3), MCA, provides, 

"An action to determine the existence or nonexistence of the 

father and child relationship as to a child who has no 

presumed father under 40-6-105 may not be brought later than 

three years after the birth of the child." In affirming the 

District Court's decision, we held that the statute was 
valid as against the state but unconstitutional as to an 

action brought for support on behalf of an illegitimate 

child. Specifically, the statute was held unconstitutional 

because illegitimate children would be discriminated against 

in the bringing of actions for support. Since Borchers did 

not concern an action brought by an illegitimate child for 

support or the statute of limitations provided in Section 

40-6-108(3), MCA, Wilson does not overrule Borchers. Thus, 

the District Court properly relied upon our decision in 

Borchers to dismiss appellant's action. 

The appellant also argues that his cause of action is 

actually subject to a nineteen-year statute of limitations 

pursuant to our decision in Sutherland v. Hurin (Mont. 

1980), 605 P.2d 1133, 37 St.Rep. 183. However, the 

Sutherland decision is inapplicable to this case. In 

Sutherland we held that children born before the July 1, 

1975 effective date of the Montana Uniform Parentage Act 

have a nineteen-year statute of limitations for paternity 

actions. The child involved in this action is presumed 

legitimate so the case does not apply. 

Appellant further contends that the five-year statute 

of limitations provided in Section 40-6-108(1)(b), MCA, is 

inapplicable to appellant because he is actually subject to 

the provisions of Section 40-6-105(1)(e), MCA. Appellant 

asserts that Section 40-6-105(1)(e), MCA, is not controlled 

by a statute of limitations and he is subject to the 

provisions of that section because he acknowledged his 

alleged paternity of Tara to the District Court. Section 

40-6-105 provides: 

"(1) A man is presumed to be the natural 

father of a child if: 
"(a) he and the child's natural mother 

are or have been married to each other 

and the child is born during the 

marriage. . . 

"(e) he acknowledges his paternity of 

the child in a writing filed . . . with 

the district court of the county where he 

resides, which court or department shall 

promptly inform the mother of the filing 

of the acknowledgment, and she does not 

dispute the acknowledgment within a 

reasonable time after being informed 

thereof, in a writing filed . . . with 

the district court of the county were the 

acknowledgment was filed. If another man 

is presumed under this section to be the 

child's father, acknowledgment may be ----------- effected only with the written consent of 

................................ 

the presumed father or after the 

presumption has been rebutted. (emphasis 

added ) 

A careful reading of this section indicates that appellant's 

assertion is incorrect. Since respondent is the presumed 

father and has not given his written consent to appellant's 

assertions, appellant must first rebutt the presumption that 

respondent is the presumed father before any written 

acknowledgment of paternity would be effective. Thus, 

appellant is again barred by the five-year statute of 

limitation on actions challenging the presumption of 

paternity. Section 40-6-108(1)(b), MCA. 

Finally, appellant asserts that the State of Montana 

has "confessed error" in the ruling of the District Court 

that Section 40-6-108(1)(b), MCA, is constitutional. 

Specifically, appellant argues that because the Attorney 

General of Montana failed to appear and argue against 

appellant's constitutional challenge, the State of Montana 

has admitted the District Court erred in relying upon the 

statute. 

In all the cases appellant cites as authority for this 
argument the confession of error rule was applied to an 

opposing party who did not respond to a particular issue on 

appeal. Respondent's brief in the present action has 

clearly addressed the consitutional challenge to Section 

40-6-108(1)(b), MCA. 

The Attorney General does not have a duty to appear in 

every action concerning the constitutionality of a statute. 

Rule 38, f4.R.App.Civ.P. requires a party challenging the 

constitutionality of a statute to give the Attorney General 

notice of the challenge but Rule 38 has never been 

interpreted as meaning the State of Montana has an absolute 

duty to appear whenever a challenge arises. Rather, the 

purpose of Rule 38 is to give the Attorney General the 

opportunity to defend the acts of the Nontana legislature. 

Gilbert v. Gilbert (1975), 166 Mont. 312, 533 P.2d 1079; 

Clontz v. Clontz (1975), 166 Mont. 206, 531 P.2d 1003; Grant 

v. Grant (1975), 166 Mont. 229, 531 P.2d 1007. 

We find no reversible error and, therefore, affirm the 

decision of the District Court. 

We concur: 

~a~~,$lg!~~~~ 

Chief Justice 
1, i / GL .~*4. , 

~dn. 'Diane G. Barz, ~istfict Xudae. 

sitting in place of Mr. $~stic&~ ' 

Frank B. Morrison Jr. \ 

\.-+ )