### No. 80-369 INTHE SUPREMECOURT OF THE STATEOF MONTANA 1981

STATEOF MONTANA, DEPARTMENTOF REVENUE, DEPARTMENTOF SOCIALREHABILITIVE SERVICES, et al., PetitionersandAppellants, vs

# . ALFRED J. WILSON, Respondent and Respondent.

No. 80-423

STATEOF MONTANA, DEPARTMENTOF REVENUE, DEPARTMENTOF SOCIALAND REHABILITATION SERVICES,et al., PetitionersandAppellants, VS

# . ROBERT JAMES FATZ, Respondent and Respondent.

Appeal from: District Court of the Eighth JudicialDistrict, Inand for the County ofCascade. Honorable JoelG. Roth,Judgepresiding. Counsel of Record: ForAppellants: Hon. Mike Greely,Attorney General,Helena, Montana J. Fred Bourdeau, County Attorney, Great Falls,Montana James,Gray & 

### McCafferty,GreatFalls,Montana

FaustoTurrin argued,Great Falls,Montana Asselstine & 

### Cruikshank,Great Falls,Montana BrettC. Asselstine argued, Great Falls,Montana

Submitted: June 10, 1981 Decided: August 11-,

### 1981 Filed: 

## AU6

## 1119W

ClerkHonorable 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. Atapproximately 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 birthof the child. The DistrictCourt dismissed the action

on motion of theputative 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 supportmoneys.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 todismiss. The issue before thisCourt 

### 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 differentlyfrom childrenborn inwedlock because the first class loses rights during infancy for determination of paternity and child support. In particular, the childborn outof wedlock may notmaintain a support action against thepaternal parent after threeyears 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 facea statute thatbars such actions. Children born out of wedlock arenot the soleparties that concern thisCourt. We alsomust 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, 

### 1972Mont. Const.

ChildrenBornOutOfWedlock 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 themere passage of time bears a direct relation to the truth of the claim asserted. Moreover, the need of a child toreceive adequate support manifestly outweighs the relation the statute of limitations may have to the prevention of fraudulent claims.



# ..." 264 S.E.2d at821. The rights of the child cannot be so compromised during its infancy. The childborn outof wedlock cannot be barred access to our courts during infancy. Art. 11, Sec. 13, 1972Mont. Const. Recently, we examined the scientific advances in blood testing indetermining paternity and thediscretionary power of the DistrictCourt. 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 indetermining paternity allows greater protections for the alleged father from fraudulent claims. In light of these advances, the standard of proof required inpaternity actions and the discretiongranted to the District Court in pretrial hearings, it 

### is concluded that the purpose of section40-6-108(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 hispaternal parent.

StateAqencies This Court does uphold the statute of limitations as against the Statewhere a state agency, such as the Department of Revenue or the Department of Social and Rehabilitation Services, derives a right from themother 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 thepower of the State to continually threaten 

### its citizens in paternityactions must always be thoroughly examined and not taken 

### 1ightly

# . 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.

DistrictJudge, sitting in place of Mr. JusticeJohn C. HarrisonWe 

### concur:

JusticesMr. Chief JusticeHaswell, dissenting: I would reverse. I agree thatthe statuteof limitations is unconstitutional 

### as to an illegitimate child for the reasons stated by the majority. In my view it 

### is equally unconstitutional against the Statewhose 

### claims arederived through and equal 

### to those of the illegitimate child 

### to whom it has furnished support. The statutesof this Stateprovide: "40-5-109. Remedies of 

### state - orpolitical 

### -subdivisionfurnishing support. If 

### a stateor

### a political subdivision furnishes support to an individual obligee, it has the 

### same right 

### to initiate

### a proceeding under thispart 

### as the individual obligee forthe purpose of securing reimbursement for support furnished and of obtaining continuing support

# ."

Here the Statetook an assignment of the illegitimate child's 

### claim againsthisalleged father. This Court stated almost 50 years ago: 

## "

# . ..The rule 

### is elementary thatan assignment transfers to the assignee

### allthe right, 

### title and interestof the assignor in the property assigned

# ..." 91Mont. 493, 506, 11 P.2d 782. The 

### same principle applies to subrogationwhich 

### is simply



### a device of equity 

### to compel ultimatepayment of 

### a debt by one who in justice and good conscience should pay it. Skauge v. Mountain StatesTel. & Tel. Co. (1977), Mont

# . I 565 P.2d 628, 34 St.Rep. 450. Accordingly, 

### allthe rightsand remedies of the illegitimatechild

### were transferred to the State. Where, 

### as here, the rightsof the Stateand the illegitimate child 

### are identical, how can the bar of the statuteof 

### limitationsdefeat the State's claimbut not the illegitimate childIs?

Chief Justice