### No. 14910 IN THE SUPREME COURT OF THE STATE OF 

### MONTANA

LINDA SUTHERLAND AND BRIAN ANDREW SUTHERLAND, Plaintiffs and Appellants,

CHARLES HURIN, 

### Jr., Defendant and Respondent.

Appeal from: District Court of the Eighth Judicial District, Honorable 

### H. William Coder, Judgepresiding. Counsel of Record: ForAppellants: Dzivi, Conklin & 

### Nybo, Great Falls,Montana Richard Dzivi argued and Suzie Rebeck argued, Great

Falls,Montana For Respondent: Smith,Baillie and Walsh, Great Falls,Montana Dennis Clark argued,Great Falls,Montana

Filed: 

# FEB6

# - 1980 - -- 

### Submitted: January 15, 1980 Decided: 

## FEB6-

## 1989Mr. Justice John C. Sheehy delivered the Opinion of the Court.

Linda and Brian Sutherland appeal from an order of the Cascade County District Court, dismissing with prejudice their paternity suit. Linda Sutherland (hereaftermother) is the naturalmother of Brian Andrew Sutherland (hereafterchild)who was born out of wedlock on April 7, 1972. Mother and child brought this action on May 24, 1978 against Charles Hurin, Jr., in order to establish a father-child relationship between Hurin and the child and to also require Hurin to support the child. As an affirmative defense, Hurin contended the cause

was barred by the statute of limitations which he asserted had run prior to July 1, 1975, the effective date of the Uniform Parentage Act. The District Court requested the issue be briefed and argued prior to trial. After briefing and argument, the District Court entered its order dismissing the claim of themother and child on the basis that section 40-6-108,

### MCA, the statute of limitations in the Uniform Parentage Act, revived a previously barred claim. It is from thisdetermination thatmother and child appeal, setting forth two issues for review: (1) Prior to the adoption of the Uniform Parentage Act, did section 27-2-401(1),MCA, apply to toll any statute of limitationbarring an illegitimate minor's right to bring

a paternity cause of action? (2) Is it a denial of an illegitimateminor's right to Equal Protection under the Fourteenth Amendment to the United StatesConstitution to bar him from bringing a paternity action, due to the running of the statute of limitations during his minority?

### We find the first issue dispositive of this case and reverse the decision of the District Court. At the time the present action commenced, the subsection of the statute of limitations in the Uniform ParentageAct establishing a time limitation on commencemento'fpaternity actionswhen the father-child relationship is not presumed by statute, states: 

# ".



# ..An action to determine the existence or nonexistence of the father and child relationship as to a child who has no presumed father under 40-6-105may not be brought later than 3 years after the birth of the child or later than

(3)years after the effective date of this act, [July 1, 19781 whichever is later. 

# .. Section



### . 61-308,R.C.M. 1947, now sectio40-6-108(3),MCA. The District Court determined that this section "revived" a claim which had previously been barred by the running of the statute of limitations. We disagree. Prior to the enactment of the Uniform Parentage Act

on July 1, 1975, there existed no specific statute of limitations relating to paternity actions. Although the District Court does not designate which statute of limitations under our codeshad previously foreclosed a paternity action in the present case,we find that itmakes no difference to our decision in this case. What does matter in this case is the failure of Hurin to recognize the statute which tolls the running of time for limitations. Thepertinent statute is section 27-2-401(1),MCA,which provides: "Whenperson entitled to bring action is under a 

### disability. (1) 1fa

### person entitled to bring an action mentioned in part 2,. 

# . . is, at the time the cause of action accrues,. 

# .

# . a minor, the time of such disability is not a part of the time limited for commencing the action. However, the time so limited cannot be extended more than 5

### years by any such disability except minority or, in any case,more than 1year after the disability ceases."In effect this statute created a 19 year statute of limitations in which a child could have instituted filiation proceedings prior to July 1, 1975, the effective date of section 40-6- 108(3),MCA. As a result, the District Court erred in dismissing appellant'spaternity action on the basis that section 40-6- 108(3), MCA, improperly "revived"a previously barred claim. The child's action was never barred by the running of a statute of limitations. Therefore, his cause was alive and filed within the permissible time. Hurin poses a further argument asserting that this first issuewas not presented to the District Court and cannotbe considered by this Court on appeal. We find that this argument also fails. The record discloses that this issuewas raised in appellant's supplemental memorandum which was filed with the District Court and as such is part of the record on this appeal. Rule 9,M.R.App.Civ.P. As to there being a cause of action on behalf of the mother, this Court recognizes that authority does exist on which a mother may seek recovery in the absence of a specific statute of limitation on paternity actions. See generally,Annot., 59 A.L.R.3d 685 (1974). However,we find it unnecessary to address specifically this question since the child has a viable cause of action. Appellant points out that the child is not represented by a guardian ad litem in the action. His lack of capacity to sue is amatter of affirmative defense,which must be raised by a responsive pleading. Rule 8,M.R.Civ.P. Once the issue is raised, the courtwill order the appointment of a guardian ad litem, Rule 17(c), M.R.Civ.P, if he is not otherwise represented. He may also sue by his next friend. Rule 17(c)

### , M.R.Civ.P.Accordingly, theorder of theDistrictCourt is reversed and the cause remanded for furtherproceedings.

We Concur:

Chief Justice /