No. 14323 

IN THE SUPIiEME COUIiT OF THE STATE: OF MONTANA 

1978 

clmumJ2 L. BOICHERS, 

Petitioner ard Respondent, 

-VSJOHN RAYMOND McCARTEFt, JR., 

Respondent and Appellant. 

ma1 frm: District Court of the Eleventh Judicial District, 

Honorable James M. Salansky, Judge presiding. 

Counsel of Record: 

For Appellant: 

mden, Walterskirchen & Christiansen, Kalispell, bbntana 

Richard DeJana argued, Kalispell, Montana 

For Respondent: 

Patrick Springer, County Attorney, Kalispell, Wntana 

Russell K. Jones argued, Deputy County Attorney, Kalispell, 

Montana 

Fbbert Allison, Kalispell, Montana 

Filed : 

Submitted: November 17, 1978 

Decided: MAR 2 . 1979 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

On September 14, 1976, petitioner, Charlene L. Borchers, 

filed a petition and order in the District Court of the 

Eleventh Judicial District, Flathead County, pursuant to the 

provisions of the "Revised Uniform Reciprocal Enforcement of 

Support Act (1968)" [URESA], sections 93-2601-41 through 93- 

2601-82, R.C.M. 1947, now sections 40-5-101 through 40-5-142 

MCA. On December 13 the District Court ordered that the 

matter be held in abeyance pending an adjudication of the 

paternity issue. Respondent, John Raymond McCarter, Jr., 

was subsequently found to be the natural father of petitioner's daughter following a jury trial commencing March 6, 

1978. He appeals. 

Petitioner and respondent met in June 1965 while working at a retirement home in the State of Oregon. At the 

time they met, petitioner was married to Carl Borchers, but 

they parted in December 1965. Her relationship with respondent then developed rapidly, and she became pregnant. In 

June 1966, respondent moved to Detroit, Michigan, but continued to correspond with petitioner. On November 1, 1966, 

petitioner gave birth to a baby girl. 

At the time of the birth, petitioner was lawfully 

married to Carl Borchers. His name appears on the child's 

birth certificate as the father. Petitioner subsequently 

obtained a divorce from him on November 30, 1966, having 

waited until after the baby's birth to facilitate the 

divorce proceedings. 

Over the course of the next several years, petitioner 

made a number of attempts to obtain child support payments 

from respondent pursuant to URESA. In 1967, she filed a 
petition for support in Marion County, Oregon. It was 

forwarded to Lake County, Montana, but never prosecuted. A 

second URESA petition was filed in Oklahoma County, Oklahoma, and forwarded to Lake County, Montana, in 1969. 

Again, no action was taken on the petition. 

After 1969 petitioner testified that she lost track of 

respondent for some years. During this time she was remarried, in 1971, and later divorced, in 1973. The next URESA 

petition was filed in Benton County, Oregon, in 1975, and 

forwarded to Denver County, Colorado. A little more than a 

year later a fourth petition was filed in Benton County, 

Oregon, and forwarded to Boulder County, Colorado. Then, on 

September 3, 1976, a fifth petition was filed in Benton 

County, Oregon, and forwarded to Flathead County, Montana. 

This last petition forms the basis of the instant case. 

No evidence was introduced to show that respondent was 

served with process until 1976. After he had been served in 

1976, a hearing was held at which time respondent moved to 

dismiss the citation and asserted as a defense that he was 

not the father of the child named in the petition. On 

December 13, 1976, the Honorable James M. Salansky ordered: 

"1. That this matter be held in abeyance until 

Petitioner, through her own counsel, brings an 

action for paternity against Respondent. 

"2. That upon judgment being entered in any action for paternity brought by Petitioner against 

Respondent the Court will again consider the 

above matter." 

On August 24, 1977, the deputy county attorney for 

Flathead County filed a "Petition for Determination of 

Paternity" in the same court and under the same cause number 

as the action which had previously been held in abeyance. 

Following a flurry of pretrial motions, the trial began on 
March 6, 1978, and resulted in a jury verdict finding: 

"1. The presumption that Carl H. Borchers is the 

natural father of Jayne Eliazabeth [sic] Borchers 

- has been rebutted. 

"2. John Raymond McCarter, Jr., is the natural 

father of Jayne Elizabeth ~orchers." 

Respondent appeals from this jury verdict, and petitioner has moved to dismiss the appeal as premature. A 

number of issues are presented for review but we find two 

issues to be dispositive of this case: 

1. Whether the appeal should be dismissed for absence 

of a final determination from which an appeal may be taken. 

2. Whether failure to rebut the presumption that Carl 

Borchers was the natural father of the child within five 

years of the child's birth bars a paternity action against a 

nonpresumed person. 

On May 4, 1978, respondent filed his notice of appeal 

in the District Court. On May 23, petitioner moved this 

Court to dismiss the appeal on the grounds that ". . . no 

final, appealable judgment and order of support [had] been 

entered in this action . . ." The motion was submitted 

without brief. Respondent argued in opposition to the 

motion to dismiss that the paternity determination and the 

support determination are, in effect, separate actions and 

that the jury verdict in the instant case is an appealable 

final judgment under Rule 1, M.R.App.Civ.P. 

Section 93-2601-67, R.C.M. 1947, now section 40-5-128 

MCA, provides: 

"If the obligor asserts as a defense that he 

is not the father of the child for whom support 

is sought and it appears to the court that the 

defense is not frivolous, and if both of the 

parties are present at the hearing or the proof 

required in the case indicates that the presence 
of either or both of the parties is not necessary, the court may adjudicate the paternity 

issue. Otherwise the court may adjourn the 

hearing until the paternity issue has been adjudicated." 

Citing Black's Law Dictionary (Rev. 4th Ed. 1968), the 

Oregon Supreme Court found an "adjudication" to be "the 

giving or pronouncing a judgment or decree in a cause." 

Vasquez v. Courtney (1975), 272 Or. 477, 537 P.2d 536, 537. 

See also, Leonard v. Leonard (1965), 88 Idaho 485, 401 P.2d 

541, 545; and, State v. Hoffman (1963), 230 Or. 98, 385 P.2d 

741, 743-44. 

The District Court's order of December 13, 1976, is 

consistent with this definition in providing "[tlhat upon 

judgment being entered - in any action for paternity brought 

by Petitioner against Respondent the Court will again consider the above matter." (Emphasis added.) Therefore, we 

find that the jury verdict returned March 7, 1978, amounted, 

in substance, to a final judgment from which an appeal may 

be taken pursuant to Rule 1, M.R.App.Civ.P. 

We are left, then, with the task of determining whether 

failure to rebut the presumption that Carl Borchers was the 

natural father of the child within five years of the child's 

birth should have barred this paternity action against a 

nonpresumed person. We find that it should have. 

In 1950 the National Conference of Commissioners on 

Uniform State Laws approved the Uniform Reciprocal Enforcement of Support Act. The Act was subsequently amended in 

1952, 1958, and 1968. Montana first adopted URESA in 1951, 

Ch. 222, Laws of Montana (1951). That act was replaced in 

1961 when Montana adopted the 1958 version of URESA, Ch. 

208, Laws of Montana (1961). Then, in 1969, Montana adopted 
the ~evised Uniform Reciprocal Enforcement of Support Act, 

~h. 237, Laws of Montana (1969). We note section 93-2601- 

81, R.C.M. 1947, now section 40-5-142 MCA, provides that 

"[tlhis act shall be so construed as to effectuate its 

general purpose to make uniform the law of those states 

which enact it." 

A number of recent cases, arising in jurisdictions 

which have not adopted the 1968 revised act, have affirmatively answered the issue of whether URESA, absent the 1968 

amendment expressly providing for paternity determination, 

implicitly authorizes courts to determine paternity. See 

Greenstreet v. Clark (Iowa 1976), 239 N.W.2d 143; Clarkston 

v. Bride (1975), 273 Or. 68, 539 P.2d 1094; and, Yetter v. 

Comrneau (1974), 84 Wash.2d 155, 524 P.2d 901. Montana has 

adopted the clear statutory language of section 27 of the 

Revised Uniform Act, leaving no question as to whether a 

court can determine paternity as part of a URESA action in 

this state, section 93-2601-67, R.C.M. 1947, now section 40- 

5-128 MCA. However, specific procedures for addressing the 

paternity issue are not set forth in the revised uniform 

act. 

Our legislature has, though, provided a statutory 

method of determining paternity under the Uniform Parentage 

Act, section 61-301 et seq., R.C.M. 1947, now section 40-6- 

101 et seq. MCA. When faced with statutes which address the 

same subject, we "must harmonize [them], if possible, and 

give effect to each." State ex rel. Irvin v. Anderson 

(1974), 164 Mont. 513, 524, 525 P.2d 564, 570. "where 

statutes relate to the same general subject they should be 

so construed together, where there is no inconsistency 
between them, so as to give effect to both where possible." 

City of Billings v. Smith (1971), 158 Mont. 197, 212, 490 

The court in Clarkston, supra, noting similar circumstances, stated: 

"Since the issues involved in establishing paternity in a URESA proceeding precisely parallel those 

raised in a filiation proceeding, we believe that, 

absent some distinguishing policy, parallel procedures should be followed. 

"The URESA is a remedial statute designed to equalize the relative positions of residence and nonresident plaintiffs in support proceedings. While 

it reflects a legislative interest in minimizing 

the additional burdens and expenses which would 

otherwise be incurred by nonresident plaintiffs, 

this interest must be balanced against a legislative 

concern for the sensitivity of paternity adjudications and the corresponding legislative policy of 

providing procedural protections for such determinations . . ." Clarkston, 539 P.2d at 1099. 

The Uniform Parentage Act recognizes this connection in 

section 61-309(1), R.C.M. 1947, now section 40-6-109 (1) MCA, 

which provides: 

"The district court has jursidiction of an action 

brought under this act. The action may be joined 

with an action for dissolution, annulment, separate 

maintenance, support, or adoption." (Emphasis 

added. ) 

We hold then that the issue of paternity in a URESA 

action shall be determined according to the provisions of 

the "Uniform Parentage Act," section 61-301 et seq., R.C.M. 

1947, now section 40-6-101 et seq. MCA. See Matter of 

Marriage of Gridley (1977), 28 Or-App. 145, 558 P.2d 1277, 

In applying the Uniform Parentage Act as adopted in 

Montana, to the facts of the instant case, we first note 

that section 61-305, R.C.M. 1947, now section 40-6-105 MCA, 

provides in pertinent part: 
"(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, or within three hundred (300) 

days after the marriage is terminated by death, 

annulment, declaration of invalidity, or divorce, 

or after a decree of separation is entered by a 

court; 

" (2) A presumption under this section may be 

rebutted in an appropriate action by a preponderance of the evidence." 

Thus, according to our statute, Carl Borchers is the presumed 

father of the child. 

Section 61-307, R.C.M. 1947, now section 40-6-107 MCA, 

addresses who may bring an action to determine a father and 

child relationship. 

"(1) Any interested party may bring an action for 

the purpose of determining the existence or nonexistence of the father and child relationship 

presumed pursuant - to section 61-305. 

"(2) An action to determine the existence of 

the father and child relationship with respect 

to a child who has no presumed father under 

section 61-305 may be brought by the child, the 

mother or personal representative of the child, 

the department of social and rehabilitation services or its appropriate local affiliate, the 

personal representative or a parent of the mother 

if the mother has died, a man alleged or alleging 

himself to be the father, or the personal representative or a parent of the alleged father if 

the alleged father has died or is a minor." 

(Emphasis added.) 

Therefore, in Montana, a person wishing to establish the 

existence of the father and child relationship between a 

child and a nonpresumed person, where the child has a presumed father pursuant to section 61-305, X.C.M. 1947, now 

section 40-6-105 MCA, must first rebut the statutory presumption of paternity in another. 

As a result, section 61-308(1), R.C.M. 1947, now section 40-6-108(1) MCA, applies to the instant case and bars 
an action to establish the father and child relationship 

between respondent and the minor daughter. 

"(1) Limitation when father and child relationship 

is presumed. 

" (a) An action may be commenced at any time for 

the purpose of declaring the existence of the 

father and child relationship presumed under 

paragraph (a), (b), or (c) of section 61-305(1); 

or I 

"(b) -- For the purpose of declaring the nonexistence 

of -- the father and child relationship presumed under 

paragraph (a), (b), or (c) of section 61-305(1) 

--- only if the action is brought within a reasonable 

time after ~btainingknowled~e of relevant facts, 

but -- in no event later --- than five (5) years after 

the child's birth. After the ~resum~tion has been 

rebutted, paternity of the child by another man 

may be determined in the same action, if he has 

been made a party." (Emphasis added.) 

Reversed and remanded with directions to enter an order 

dismissing the action. 

We concur: 

Justices