Annеtte L. GERHARDT, as guardian ad litem for Heather Jo Krueger, Plaintiff-Appellant, v. ESTATE OF Arlen L. MOORE, Defendant-Respondent.
No. 85-0943
Supreme Court
June 28, 1989
441 N.W.2d 734
(Also reported in 441 N.W.2d 734.)
Amicus curiae brief was filed by Donald J. Hanaway, attorney general, Donald P. Johns, assistant attorney general, for the State of Wisconsin, and Sherwood K. Zink, legal counsel for Wisconsin Office of Child Support.
WILLIAM A. BABLITCH, J. This case is on remand from the United States Supreme Court for further consideration in light of Clark v. Jeter, 486 U.S. —, 108 S. Ct. 1910 (1988).1 The primary issue presented on remand is whether a statutory provision denying nonmarital children involved in lump-sum child support settlements the ability to seek additional support from the father, a right not denied marital children, amounts to a denial of the equal protection of the law. If so, other issues include whether the trial court has аuthority to order retroactive support payments, and whether an admission of paternity reached in the settlement proceedings remains valid.
Because marital children are not precluded from seeking additional child support notwithstanding a prior court order setting the amount of support, we conclude that prohibiting nonmarital children involved in lump-sum settlement agreements from seeking additional support amounts to a denial of equal protection. Consistent with prior Wisconsin case law prohibiting retroactive increases in child support involving marital children, we further conclude that the trial court may consider increased child support only from the date that the
We begin by briefly reiterating the facts. Heather Jo Krueger (Krueger) was born out of wedlock to Betty Lou Krueger on September 7, 1969. Sometime thereafter, the State of Wisconsin, by Betty Lou Krueger, filed an action against Arlen L. Moore (Moore) under
Under the settlement, Moore agreed to pay a total of $4,600.00 over a period of time as a lump-sum settlement for child support, and medical expenses paid by Sauk county as a result of Krueger‘s birth. The agreement contained a clause stating:
That this agreement and full and complete performance thereof shall constitute full and final settlement of this action, pursuant to the provisions of
Chapter 52, Wisconsin Statutes 1967 .
Moore complied with the terms of the agreement and made all payments in a timely manner. Moore‘s
On November 20, 1984, Krueger, by her guardian ad litem, commenced this action against Moore, now deceased, seeking an order requiring Moore to pay 17 percent of his gross income from November 1, 1974, for past, present, and future support. Krueger also sought to be named as the irrevocable primary beneficiary of a life insurance policy, as well as receive certain other insurance benefits. Moore moved to dismiss the action on the grounds that it raised issues previously adjudicated in the settlement proceedings. The circuit court dismissed the action.
We granted certification of the issues and affirmed the circuit court. Gerhardt v. Estate of Moore, 139 Wis. 2d 833, 407 N.W.2d 895 (1987). We concluded that the cause of action had been previously litigated and the 1970 paternity agreement, having been complied with fully, barred Krueger from receiving any additional support. Id. at 845. Moreover, we held that paternity proceedings under
Krueger petitioned the United States Supreme Court for review. On June 6, 1988, the Court issued its decision in Clark. After announcing its decision in Clark, the Court on June 13, 1988, granted certiorari in Gerhardt, 108 S. Ct. 2814. An order was issued which vacated this court‘s decision and remanded the matter for further considerаtion in light of the decision in Clark.
I.
The primary issue on remand is whether under Clark, the lump-sum child support provision pursuant to
Clark is the most recent in a substantial body of United States Supreme Court decisions applying equal рrotection analysis to state statutory schemes affecting the rights of nonmarital children. The decision struck down a Pennsylvania statute which required that a suit to establish paternity and seek support be brought within six years of a nonmarital child‘s birth. By contrast, a marital child could seek support at any time. See Id., 108 S. Ct. at 1912.
Clark reflected a progression from Gomez v. Perez, 409 U.S. 535 (1973), which found disparate statutory treatment between marital and nonmarital children to be constitutionally invalid. The Gomez decision held that the laws of Texas could not constitutionally grant maritаl children the right to support from their natural fathers while at the same time denying that right to nonmarital children. In so holding, the Court stated that “a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally.” Id. at 538; see also, Krause, Equal Protection For The Illegitimate, 65 Mich. L. Rev. 477 (1967).
In response to the constitutional requirements of Gomez, Texas created a one-year limitations period during which a nonmarital child could establish paternity. This legislation was struck down by the Court in Mills v. Habluetzel, 456 U.S. 91 (1982). The Court noted that the response to Gomez was “less than generous,” and con-
Significantly, the equal protection analysis in Mills focused on two related requirements: first, the Court held that the period for obtaining support must be sufficiently long in duration to present a reasonable opportunity to obtain support, given the difficult personal, family and financial circumstances that often surround the birth of a child out of wedlock. Id. at 99. Second, the time limitation must be substantially related to the state‘s interest in avoiding the litigation of stale or fraudulent claims. Id. at 99-100.
During the next term, the Court invalidated a two-year statute of limitations in Pickett v. Brown, 462 U.S. 1 (1983). The Court concluded that under the first requirement outlined by Mills the two-year period was only a small improvement over the one-year statute of limitations, and thus also amounted to a restriction effectively extinguishing the support rights of nonmarital children. The Court further concluded that under the second requirement the time limitation was not substantially related to the state‘s interest in avoiding stale and fraudulent claims. Pickett, 462 U.S. at 13.
It was against this background that the Court concluded that the six-year statute of limitations involved in Clark also violated the equal protection clause. The Court initially noted:
Even six years does not necessarily provide a reasonable opportunity to assert a claim on behalf of an illegitimate child. ‘The unwillingness of the mother to file a paternity action on behalf of her child, which could stem from her relationship with
the natural father or.. from the emotional strain of having an illegitimate child, or even from the desire to avoid community and family disapproval, may continue years after the child is born. The problem may be exacerbated if, as often happens, the mother herself is a minor.’ Clark, 108 S. Ct. at 1915 (quoting Mills, 456 U.S. at 105, n. 4 (O‘Connor, J., concurring)).
However, the Court did not rest its decision on the ground that a six-year limitations period provided an inadequate window of opportunity in which to obtain support for nonmarital children, since it was “not entirely evident that six years would necessarily be an unreasonаble limitations period for child support actions involving illegitimate children.” Id. at 1915. Instead, the Court held that the six-year statute of limitations was not substantially related to the asserted state interest in avoiding the litigation of stale or fraudulent claims. Id.
In so holding, the Court in Clark reiterated the levels of scrutiny under which it examines whether statutory classifications violate the equal protection clause. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. On the othеr end of the spectrum, classifications based on race or national origin, and classifications affecting fundamental rights are given the most exacting scrutiny. Between these spectrums of rational basis and strict scrutiny lies a level of intermediate scrutiny “which generally has been applied to discriminatory classifications based on sex or illegitimacy.” Id. at 1914 (citations omitted).
Therefore, to withstand intermediate scrutiny, a statutory classification such as the one at issue in the present case must be substаntially related to an impor-
Moore‘s estate argues that the paternity proceedings under
Although it is argued that
The lump-sum payment provision authorized in
We are unpersuaded that the statutory scheme is substantially related to its asserted state interests. To begin with, it is difficult to see how the interest in promoting settlements justifies a total waiver of future child support regardless of the child‘s future needs or the father‘s ability to pаy. As a practical matter, when an admission of paternity was obtained in the manner presented here, the benefits to the child were often so minimal that the admission of paternity had almost no value to anyone except to the county which had its medical costs covered. Somewhat ironically, while the child lost all right to require the father to provide additional support, the unmarried father‘s rights remained fully protected after such an agreement. Presumably, the father сould subsequently assert visitation and even seek support from the mother who waived future child support in exchange for an admission of paternity.
Furthermore, the risk of losing the paternity issue at trial and burdening the state‘s welfare system is undercut by the countervailing state interest in the continued
Accordingly, we conclude that the statutory classification fails to bear a substantial relationship to its asserted state interests. Prohibiting nonmarital children involved in lump-sum child support settlements the ability to seek additional support, not denied marital children, amounts to a denial of the equal protection of the law. We therefore reverse the order of the circuit court dismissing Krueger‘s petition for additional support.
II.
Krueger‘s action, filed on November 20, 1984, seeks relief from November 1, 1974, the date upon which Moore‘s support obligatiоn ended under the settlement agreement. General principles typically applied to marital children do not support such a result. We conclude that Krueger‘s request for additional support payments may not be given retroactive effect.
Wisconsin case law has allowed trial courts discretion to order retroactive reductions or prospective
Krueger‘s argument is essentially that children who believe they have not been provided necessary support have a cause of action against their parent for such support as the child, in retrospect, believes would have been appropriate. We decline to adopt such a position. As this court stated in Foregger, 40 Wis. 2d at 644: “[t]he whole tenor of the statute seems to envision prospеctive relief. Thus, when a change of circumstances arises which requires a change in support payments, the statute requires the party seeking the change to petition the court for relief.” This language applies with equal force to Krueger‘s present action for additional support.
III.
Finally, we turn to the issue whether Moore‘s admission of paternity remains valid under the circumstances of this case. Moore‘s estate insists that the lump-sum payment was the inducement for Moore to admit paternity. Therefore, Moore asserts it would be unfair to now permit Krueger to proceed for additional support based upon Moore‘s admission of paternity when that admission was the consideration for the lump-sum settlement eighteen years ago.
Conversely, Krueger argues the statutory scheme under
We need not address the question of whether paternity should be reopened under some other set of facts such as when the alleged father who admitted paternity is still alive and asserts that he admitted paternity only in consideration of obtaining a final settlement in the child support proceedings. We note, however, that in such circumstances, the difficulty of proving or disproving paternity has been greatly alleviated by recent scientific developments in bloоd testing. Pickett, 462 U.S. at 11 (quoting Mills, 456 U.S. at 104 n. 2 (O‘Connor J., concurring)).
By the Court.—The order of the circuit court is reversed and remanded for further proceedings.
CALLOW, WILLIAM G., J. (dissenting). I dissent and maintain that we should affirm our earlier decision in this case, Gerhardt v. Estate of Moore, 139 Wis. 2d 833, 407 N.W.2d 895 (1987). The analysis in that opinion was correct and it is not affected in any way by the United States Supreme Court decision in Clark v. Jeter, 108 S. Ct. 1910 (1988).
The majority is wrong in concluding that the principles set forth in Clark require us to find that the child in this case was denied the equal protection of law. Clark
The case before us does not involve a statute of limitations. Rather, it involves a statute which makes it easier for nonmarital children to obtain child support. The statute does not deny a right, it simply grants an alternative right. As we held in the оriginal opinion, the statute provides “an additional, optional method for satisfying a support obligation.” Gerhardt, 139 Wis. 2d at 846. Where the statute of limitations in Clark, according to the Supreme Court, might prevent a mother from bringing a support claim on behalf of the nonmarital child because she might not act to protect the child‘s interest in a timely manner, the settlement provision of the Wisconsin Statutes at issue in this case encourages her to do so. The application of res judicata in this case merely bars a second child support action aftеr the child, through its mother, had already exercised its rights and received child support.
The original opinion is correct when it concludes that the Wisconsin statute, by relying on the mother to enforce the child‘s support rights, adequately protects the child‘s interests. The child‘s interests are virtually represented by the mother who, like the child, has a powerful interest in obtaining child support. Gerhardt, 139 Wis. 2d at 840. When support is not provided by the father the obligation for support of the child falls upon the mother. Id. at 841. When thе support statute was in effect the mother and the child‘s interest could be accommodated by initiating an action for support as was
Having incorrectly concluded that the statute violates the equal protection clause, the majority arrives at a result that is fundamentally unfair in two ways. First, on remand this case may result in a sum of money being paid to the nonmarital child who is now an adult and who may have contributed little or nothing to her own support during her minority. Such an amount would essentially be a windfall to her.
Second, the mаjority opinion is unfair in its treatment of the original settlement. As we noted in the original opinion, a settlement of this kind by its nature involves the making of compromises on such issues as the amount of the child support to be paid and the admission of paternity itself. Id. at 843. The statute recognized there may be compelling reasons to settle the case. Although the record in this case is unclear, it is possible that Moore admitted his paternity only as part of a bargain which limited his liability. The child‘s
It is patently unfair and a violation of contract law principles to reopen, nineteen years later, one part of the bargain, the amount of child support, without reopening the other, the admission of paternity itself. But this is what thе majority has done. Fairness and equity require that the original settlement be upheld. If it is not upheld the whole matter should be reopened and the burden to prove paternity should be placed on the child seeking additional support.
For the foregoing reasons I respectfully dissent.
I am authorized to state that JUSTICE LOUIS J. CECI joins in this dissenting opinion.