No. 80-369 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

STATE OF MONTANA, DEPARTMENT OF REVENUE, 

DEPARTMENT OF SOCIAL REHABILITIVE SERVICES, 

et al., 

Petitioners and Appellants, 

vs . 

ALFRED J. WILSON, 

Respondent and Respondent. 

No. 80-423 

STATE OF MONTANA, DEPARTMENT OF REVENUE, 

DEPARTMENT OF SOCIAL AND REHABILITATION 

SERVICES, et al., 

Petitioners and Appellants, 

VS . 

ROBERT JAMES FATZ, 

Respondent and Respondent. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade. 

Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellants: 

Hon. Mike Greely, Attorney General, Helena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls, Montana 

James, Gray & McCafferty, Great Falls, Montana 

Fausto Turrin argued, Great Falls, Montana 

Asselstine & Cruikshank, Great Falls, Montana 

Brett C. Asselstine argued, Great Falls, Montana 

Submitted: June 10, 1981 

Decided: August 11-, 1981 

Filed: AU6 11 19W 

Clerk 
Honorable Mark P. Sullivan, District Judge, delivered the 

Opinion of the Court. 

This is an appeal from judgments granted respondents 

by the District Court of the Eighth Judicial District in 

paternity actions brought against them by the Department of 

Revenue and the Department of Social and Rehabilitation 

Services (SRS) . 

Respondents had moved for judgments contending that 

the statute of limitations on the determination of 

paternity, section 40-6-108, MCA, had run at the time 

appellants filed the petitions. In granting the motions, 

the District Court dismissed the petitions filed by the 

State. Appellants allege the statute of limitations is 

unconstitutional and should be struck down. 

A male child was born out of wedlock to E.F.L.R. on 

March 22, 1976. At approximately the same time, the mother 

applied to the state for public assistance, including 

support for the child, and gave SRS sufficient information 

which would be enough to start a paternity action against 

Alfred J. Wilson 11. The State also obtained an assignment 

of the mother's claim for support from the putative father 

when the baby was born. The State brought action against 

Wilson on May 22, 1979, more than three years after the 

birth of the child. The District Court dismissed the action 

on motion of the putative father. 

On August 11, 1972, M.L. gave birth to a male child. 

Sometime thereafter the State of Montana became an interested party because the mother assigned her rights to 

support to SRS. On August 4, 1980, eight years after the 

child's birth, SRS filed a petition against Robert James 

Fatz to establish paternity and obtain support moneys. 
Thereafter, on August 27, 1980, counsel for Robert 

James Fatz filed a motion to quash the order to show cause 

requiring blood tests and a motion to dismiss the petition. 

On September 5, 1980, oral arguments were heard by the 

Honorable Joel G. Roth and on September 23, 1980, the court 

granted respondent's motion to dismiss. 

The issue before this Court is whether the three-year 

statute of limitations on the determination of paternity 

in section 40-6-108(3), MCA, violates the equal protection 

provision of the Fourteenth Amendment of the United States 

Constitution and Article 11, Section 4 of the Montana 

Constitution. 

An equal protection issue is presented in this case. 

Appellants contend that children born out of wedlock, as a 

class, are treated differently from children born in wedlock 

because the first class loses rights during infancy for 

determination of paternity and child support. In 

particular, the child born out of wedlock may not maintain a 

support action against the paternal parent after three years 

from the date of birth of the child. Section 40-6-108(3), 

MCA. Children born in wedlock, whose paternal parent is 

presumed, do not face a statute that bars such actions. 

Children born out of wedlock are not the sole parties 

that concern this Court. We also must consider the power of 

the State through its agencies to bring actions of 

paternity under section 40-6-107, MCA. State agencies derive 

their power to bring paternity actions by way of this 

statute. 

The Montana Constitution provides that all persons 

are guaranteed the equal protection of the laws. Art. 11, 
Sec. 4, 1972 Mont. Const. 

Children Born Out Of Wedlock 

As to children born out of wedlock, we find that 

section 40-6-108, MCA, does create an unfair burden and 

unfairly discriminates against these children. The statute 

of limitations, as applied, is unconstitutional with respect 

to children born out of wedlock. The statute prevents any 

guardian, guardian ad litem or next friend of the child from 

maintaining an action for support from the paternal parent 

three years after birth of the child. 

Classifications of this nature are invalid under the 

Fourteenth Amendment to the United States Constitution, if 

they are not substantially related to a permissible state 

interest. Mathews v. Lucas (1976), 427 U.S. 495, 96 S.Ct. 

2755, 49 L.Ed.2d 651. The limitations statute constitutes 

an overly-broad restriction on the rights of children born 

out of wedlock. 

The Supreme Court of North Carolina addressed this 

same issue recently in County of Lenoir ex rel. Cogdell v. 

Johnson (1980), 46 N.C.App. 182, 264 S.E.2d 816. The 

court's statement has application here: 

"In the case sub judice, defendant argues 

that [the statute] bears a substantial 

relationship to the State's interest in 

preventing the litigation of stale or 

fraudulent claims. We disagree. As we 

stated previously, a child is entitled to 

support from its father throughout its 

minority. Therefore, a child's claim for 

such support at any time during its minority 

can never be said to be stale. Nor is [the 

statute] substantially related to the State's 

interest in preventing the litigation of 

fraudulent claims. We have no reason to 

believe that the mere passage of time bears a 

direct relation to the truth of the claim 

asserted. Moreover, the need of a child to 
receive adequate support manifestly outweighs 

the relation the statute of limitations may 

have to the prevention of fraudulent claims. 

... " 264 S.E.2d at 821. 

The rights of the child cannot be so compromised 

during its infancy. The child born out of wedlock cannot be 

barred access to our courts during infancy. Art. 11, Sec. 

13, 1972 Mont. Const. 

Recently, we examined the scientific advances in 

blood testing in determining paternity and the discretionary 

power of the District Court. Rose v. Dist. Court of Eighth 

Judicial Dist. (1981), - Mont. , 628 P.2d 662, 38 

St.Rep. 830. The newly-developed, greater percentage of 

accuracy in determining paternity allows greater protections 

for the alleged father from fraudulent claims. In light of 

these advances, the standard of proof required in paternity 

actions and the discretion granted to the District Court in 

pretrial hearings, it is concluded that the purpose of 

section 40-6-108(3), MCA, as applied to the child through a 

guardian ad litem or other representative, is minimal or 

nonexistent compared to the interest of the child in 

obtaining support from his paternal parent. 

State Aqencies 

This Court does uphold the statute of limitations as 

against the State where a state agency, such as the Department of Revenue or the Department of Social and Rehabilitation Services, derives a right from the mother of the child 

born out of wedlock to bring a claim for reimbursement for 

child support through paternity actions. The interest of 

the State in these matters is economic, and the power of the 

State to continually threaten its citizens in paternity 
actions must always be thoroughly examined and not taken 

1 ightly . 

The State is not a child. In reality, it cares not 

so much about the relationship of father and child but more 

about economic reimbursement for welfare and other dependent 

aid. The rights given to the State are not equal to the 

rights and interests of the child or the reasons or 

necessity for finding the child's father. The statute of 

limitations, therefore, provides a protection against the 

inadvertence and delay of the State in actions for 

paternity. The paternal parent protection offered by the 

statute as against the State has a substantial relation to 

the intended purpose and, therefore, is constitutional. 

We note that the tolling statute, section 25-1-102, 

MCA, by its terms, has not been made applicable to Uniform 

Parentage Act cases. The matter of providing a proper 

tolling statute for minors, at least, is called to the 

attention of the legislature for future action. 

The judgments of the District Court as to the state 

agencies are affirmed. 

District Judge, sitting in 

place of Mr. Justice John C. 

Harr ison 
We concur: 

Justices 
Mr. Chief Justice Haswell, dissenting: 

I would reverse. 

I agree that the statute of limitations is unconstitutional as to an illegitimate child for the reasons stated by the 

majority. In my view it is equally unconstitutional against the 

State whose claims are derived through and equal to those of the 

illegitimate child to whom it has furnished support. 

The statutes of this State provide: 

"40-5-109. Remedies of state - or political - subdivision furnishing support. If a state or a 

political subdivision furnishes support to an 

individual obligee, it has the same right to 

initiate a proceeding under this part as the 

individual obligee for the purpose of securing 

reimbursement for support furnished and of 

obtaining continuing support ." 

Here the State took an assignment of the illegitimate 

child's claim against his alleged father. This Court stated 

almost 50 years ago: 

" . . . The rule is elementary that an assignment transfers to the assignee all the right, 

title and interest of the assignor in the property assigned . . ." 91 Mont. 493, 506, 11 P.2d 

782. 

The same principle applies to subrogation which is simply 

a device of equity to compel ultimate payment of a debt by one 

who in justice and good conscience should pay it. 

Skauge v. Mountain States Tel. & Tel. Co. (1977), Mont . I 

565 P.2d 628, 34 St.Rep. 450. Accordingly, all the rights and 

remedies of the illegitimate child were transferred to the State. 

Where, as here, the rights of the State and the illegitimate child are identical, how can the bar of the statute of limitations defeat the State's claim but not the illegitimate 

child Is? 

Chief Justice