NO. 33-60 INTHE SUPREMECOURTOF THE STATEOF MONTANA 1983

LN THEMATTER 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 Courtof the Fourth Judicial District, Inand for the County ofMissoula, TheHonorable John S. Henson,Judgepresiding.

COUNSELOF RECORD: ForAppellant: Oleson Law Firm;JamesOlesonargued,Kalispell, Montana Baldassin,Connell & Beers, Missoula,Montana For Respondent: Jonkel & Kemmis;DanielKernmis argued, Missoula, Montana ThomasPoullot,Dept. ofRevenue, Helena,Montana Constitutionality-Hon. Mike Greely,Attorney General, - - Helena, Montana 

# - Submitted: September 16, 1983 ~ecided : November 2,1983

Filed: 

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-- ClerkMr. 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 ofTara (T.M.B), and Rodger (R.J.B), the respondent, were married on January 23, 1976. Tarawas born onJune 22, 1976, five months following the marriage of respondent and Erna. Respondent was identifiedasTara's father onher 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 toprovide child support and allowed himvisitation 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 theparentage of Tara. The petition contained the resultsof an HLAblood test stating that theprobability 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 theDistrict Court erred indismissing hispetition.~nitially,appellant asserts that the five-year statute of limitations contained in Section 40-6-108(1)(b), MCA,has been rendered unconstitutionalby the United States Supreme Court's decisions in Millsv. Habluetzel (1982), 456 U.S. 91, 71 L.Ed.2d 770, and Pickettv. 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 twoyearsunless the child was apublic 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 Gomezv. Perez (1973), 409 U.S. 535, 35L.Ed.2d 56,may be circumscribedby a state's interest in avoiding prosecution of stale or fraudulent claims. Similarily, in Pickett, the Court relied heavily on its decision inMills. The PickettCourt 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 onequal protection grounds. "Although Tennessee grants illegitimate children a right to paternal support

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. 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 statuteof 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:

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# . (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 isbrought 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, theDistrictCourt did not err in relying on

our decision in Borchers v. McCarter (1979), 181Mont. 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 StateDept. of Revenue v. Wilson (Mont. 1981), 634 P.2d 172, 38 St.Rep. 1299, overruled our decision in Borchers. In Borchers, apetition was filedmore than fiveyears 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 notbe brought later than three years after the birth of the child." Inaffirming the District Court's decision, we held that the statute wasvalid 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 childrenwould 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 casedoesnot 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) Aman ispresumed tobe 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.

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"(e) he acknowledges his paternity of the child in a writing filed

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# .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 anotherman ispresumed under this section to be the child's father, acknowledgment may be 

### ----------- effected only with thewritten consent of the presumed father or after the



### ................................ presumptionhasbeen 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 hiswritten consent to appellant's assertions, appellantmust 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 thisargument 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. TheAttorney General doesnot 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. Gilbertv. Gilbert (1975), 166 Mont. 312, 533 P.2d 1079; Clontzv. Clontz (1975),166Mont. 206, 531P.2d 1003; Grant

v. Grant (1975),166Mont. 229, 531P.2d 1007. We find no reversibleerror and,therefore,affirm the decision of the DistrictCourt.

We concur: 

# ~a~~,$lg!~~~~ Chief Justice

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### GL.~*4. , ~dn. 'Diane G. Barz, ~istfict Xudae. sittinginplaceof Mr. $~stic&~ ' Frank B. MorrisonJr. \ \.-+ 

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