No. 14323 INTHE SUPIiEME COUIiT OF THE 

### STATE:OF

### MONTANA 1978



## clmumJ2L. BOICHERS, Petitioner

### ard Respondent,

-VSJOHN RAYMOND McCARTEFt, 

### JR., Respondent 

### and Appellant.

ma1 frm: DistrictCourt 

### of theEleventhJudicial District, Honorable James M. Salansky, Judgepresiding. Counsel of Record: For Appellant: mden,Walterskirchen & Christiansen, Kalispell, bbntana Richard 

### DeJana argued, Kalispell, Montana For Respondent: Patrick Springer, CountyAttorney, Kalispell, Wntana Russell K. Jones 

### argued, Deputy CountyAttorney, Kalispell,

Montana Fbbert Allison, Kalispell, Montana

Filed: Submitted: November 17, 1978 Decided: 

## MAR2

. 

## 1979Mr. Justice John Conway Harrison delivered the Opinion of the Court. On September 14, 1976, petitioner, Charlene L. Borchers, filed a petition and order inthe 

### DistrictCourt 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 13the DistrictCourt ordered that the 

### matter be held inabeyance pending an adjudication of the paternity issue. Respondent, John Raymond McCarter, Jr.,

was subsequently found tobe the natural father of petitioner's daughter following a jury trial commencing March 6, 1978. He appeals. Petitioner and respondent 

### metinJune 1965while working ata retirement home inthe Stateof Oregon. Atthe 

### timethey 

### met, petitioner was married to CarlBorchers, but they parted inDecember 1965. Her relationship with respondent then developed rapidly, and she became pregnant. In June 1966, respondent moved toDetroit, Michigan, but continued tocorrespond with petitioner. On November 

### 1, 1966, petitioner gave birth toa baby girl. Atthe 

### timeof the birth, petitioner 

### was lawfully married toCarl Borchers. Hisname 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 tofacilitate the divorce proceedings. Over the course of the next several years, petitioner made a number of attempts toobtain child support payments from respondent pursuant toURESA. In 1967, she filed

### apetition for support inMarion County, Oregon. Itwas forwarded toLake County, Montana, but never prosecuted. A second URESA petition 

### was filed inOklahoma County, Oklahoma, and forwarded toLake 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 inBenton County, Oregon, in 1975, and forwarded toDenver County, Colorado. A littlemore than a year later a fourth petition was filed inBenton County, Oregon, and forwarded toBoulder County, Colorado. Then, on September 3, 1976, 

### a fifthpetition was filed inBenton County, Oregon, and forwarded toFlathead County, Montana. This lastpetition 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 atwhich time respondent moved to dismiss the citation and asserted as a defense that he was not the father of the child named inthe petition. On December 13, 1976, the Honorable James M. Salansky ordered: "1. That thismatter be held inabeyance until Petitioner, through her own counsel, brings an action forpaternity against Respondent. 

### "2. That upon judgment being entered inany action forpaternity brought by Petitioner against Respondent the Court 

### willagain consider the above matter." On August 24, 1977, the deputy county attorney for Flathead County filed a "Petition for Determination of Paternity" inthe same court and under the same cause number

as the actionwhich had previously been held in abeyance. Following a flurry of pretrial motions, the 

### trial began onMarch 

### 6, 1978, and resulted ina 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 thisjury verdict, and petitioner has moved todismiss the appeal aspremature. A number of issues arepresented 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 torebut the presumption that Carl Borchers was the natural father of the childwithin 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 inthe DistrictCourt. 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 inthis action 

# . . 

# ."The motion was submitted without brief. Respondent argued inopposition to the motion todismiss that the paternity determination and the support determination are, ineffect, separate actions and that the jury verdict inthe instant case is an appealable finaljudgment 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 arepresent atthe hearing or the proof required inthe case indicates that the presenceof either orboth of the parties 

### is not necessary, the courtmay adjudicate the paternity issue. Otherwise the courtmay 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" tobe "the giving orpronouncing a judgment ordecree ina 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, Statev. Hoffman (1963), 230 Or. 98, 385 P.2d 741, 743-44. The District Court's order of December 13, 1976, 

### is consistentwith thisdefinition inproviding "[tlhatupon judgment being entered - in

### any action forpaternity brought by Petitioner against Respondent the Court 

### willagain 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 toRule 1, M.R.App.Civ.P. We are left, then, with the task of determining whether failure torebut the presumption that Carl Borchers 

### was the natural father of the childwithin fiveyears of the child's birth should have barred thispaternity action against a nonpresumed person. We find that it should have. In 1950 the National Conference of Commissioners on Uniform StateLaws approved the Uniform Reciprocal Enforcement of Support Act. The Actwas subsequently amended in 1952, 1958, and 1968. Montana firstadopted URESA in 1951, Ch. 222, Laws of Montana (1951). That act

### was replaced in 1961when Montana adopted the 1958 version of URESA, Ch. 208, Laws of Montana (1961). Then, in 1969, Montana adoptedthe ~evised Uniform Reciprocal Enforcement of Support Act, ~h. 237, Laws of Montana (1969). Wenote section 93-2601- 81, R.C.M. 1947, now section 40-5-142 MCA, provides that "[tlhis

### act shallbe soconstrued as to effectuate 

### its general purpose tomake uniform the law of those states which enact it." A number of recent cases, arising injurisdictions which have not adopted the 1968 revised act, have affirmatively answered the issue of whether URESA, absent the 1968 amendment expressly providing forpaternity determination, implicitly authorizes courts todetermine 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 towhether a court can determine paternity aspart 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 inthe 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 toeach." 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 inconsistencybetween them, so 

### as togive effect toboth where possible." City of Billings v. Smith (1971), 158Mont. 197, 212, 490

The court inClarkston, supra, noting similar circumstances, stated: "Since the issues involved inestablishing paternity ina URESA proceeding precisely parallel those raised ina filiationproceeding, 

### webelieve that, absent some distinguishing policy, parallel procedures should be followed.

"The URESA 

### is a remedial statutedesigned toequalize the relative positions of residence and nonresident plaintiffs in support proceedings. While it reflects a legislative interest inminimizing the additional burdens and expenses which would otherwise be incurred by nonresident plaintiffs, this interestmust be balanced against a legislative concern for the sensitivityof paternity adjudications and the corresponding legislative policy of providing procedural protections for such determinations 

# . .

# ." Clarkston, 539 P.2d at1099. The Uniform Parentage Actrecognizes 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.) Wehold then that the issue of paternity ina URESA action shallbe determined according to the provisions of the "Uniform Parentage Act," section 61-301 etseq., R.C.M. 1947, now section 40-6-101 etseq. 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 firstnote that section 61-305, R.C.M. 1947, now section 40-6-105 MCA, provides inpertinent part:"(1) A man 

### ispresumed tobe the natural father of a child if: "(a)he and the child's natural mother are or have been married toeach other and the child 

### isborn during the marriage, or within three hundred (300) days after themarriage 

### 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 sectionmay be rebutted inan appropriate action by a preponderance of the evidence." Thus, according toour 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 todetermine 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 todetermine the existence of the father and child relationship with respect to a childwho 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 themother has died, a man alleged or alleging himself to be the father, or the personal representativeor 

### a parent of the alleged father if the alleged father has died or 

### is a minor." (Emphasis added.) Therefore, inMontana, 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 firstrebut the statutory presumption of paternity inanother. As a result, section 61-308(1), 

### R.C.M. 1947, now section 40-6-108(1) MCA, applies to the instant case and barsan action to establish the father and child relationship between respondent and theminor daughter. "(1)Limitation when father and child relationship ispresumed. 

### "(a)An actionmay be commenced 

### atany 

### 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 childrelationship presumed under paragraph 

### (a), 

### (b), or 

### (c)of section 61-305(1) only if the action 

### isbrought within a reasonable 

### --- time after ~btainingknowled~e of relevant facts, but inno 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 inthe 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