460 So. 2d 1333 | Ala. Civ. App. | 1984
This is a paternity case.
The Morgan County Department of Pensions and Security (D.P.S.) appealed to the circuit court from a ruling of the district court, which sustained the defendant Kelso's plea of the statute of limitations.
The following pertinent facts appear of record.
On August 10, 1983, Cindy Ryan filed an action under the paternity statute, which sought to establish that Kelso was the father of her daughter, who was born on July 21, 1978. Kelso's last motion to dismiss was based upon the ground that the suit against him was barred by the five-year statute of limitation period as established by § 26-12-7, Code 1975. The circuit court granted Kelso's motion to dismiss on March 16, 1984. No evidence was taken or presented to the circuit court.
D.P.S. moved that the March 16, 1984, order be set aside, contending that § 26-12-7 violates the equal protection and due process clauses of the constitutions of the United States and of Alabama. That motion of D.P.S. was overruled and D.P.S. ex rel. Cindy Ryan duly appealed to this court.
Under our recent decision in State v. Burks,
According to the mother's affidavit, Kelso has never acknowledged his paternity of the child to the mother nor has he ever supported the child.
Since this case does not fall within the exceptions or saving provisions which toll the running of the period of limitation, this paternity action is barred unless D.P.S. is correct in its contention that the five-year statute of limitations is unconstitutional under the decisions of the Supreme Court of the United States in Pickett v. Brown,
Both of those cases relied upon two related requirements before a statute of limitations which governs suits to legally identify the natural father of illegitimate children may be deemed to be constitutional. To meet constitutional muster in that regard,
Pickett v. Brown, supra,"the period for obtaining paternal support has to be long enough to provide a reasonable opportunity for those with an interest in illegitimate children to bring suit on their behalf; and, any time limit on that opportunity has to be substantially related to the State's interest in preventing the litigation of stale or fraudulent claims."
The five-year statute of limitations does provide illegitimate children, and those interested in them, with ample opportunity to obtain paternal support and is substantially related to the legitimate state interest in preventing the litigation of stale or fraudulent claims. It, therefore, is constitutional and the judgment of the circuit court is affirmed.
Able counsel for D.P.S. has cited many statistics and some evidence in his excellent brief which are totally outside of the appeal record. We are prohibited from considering those extraneous matters. Roberts v. Roberts,
The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of §
AFFIRMED.
All the Judges concur.