Weegar v. Bakeberg

Hattervig, Legal Karen A. East River Ser- vices, WEEGAR, Oien, Falls, Kay Lynn Kay Lynn plaintiffs Sioux for appel- and f/k/a Auringer, lants. and Guardian Ad Carol Litem Kenyon,

for Lane Casie Casie Lane a/k/a Farrell, Farrell, Strange, Thomas J. John- Oien, Appellants, and Plaintiffs Falls, Casey, P.C., son & Sioux for defendant appellee. BAKEBERG, Michael Steven WUEST, Retired Justice. Appellee.

Defendant Kay Weegar daughter, and her minor Ca- Kenyon, litem, through sie ad No. 18647. appeal the circuit court’s dismissal of their Court South Dakota. action under the 1979 ver- Weegar sion of Kenyon SDCL 25-8-9. Argued Oct. 1994. claim the statute of limitations in Feb. Decided that version of the statute is unconstitutional. Kenyon minority further her claims status tolls the statute of limitations action brought by her. Because find the statu- tory period Kenyon’s at issue violates consti- rights protection tutional equal under the Amendment, Fourteenth we reverse and re- mand for trial.

FACTS Kay Weegar gave Kenyon, birth to Casie daughter, her out of in 1979 wedlock. When born, Weegar her child was receiving was Dependent Aid to Families with Children (AFDC) from the State South Dakota. assigned She sup- receive child port to the and named Michael Bake- berg putative as the father of her child. In the statute of limitations under bring paternity SDCL 25-8-9 to action was June, years. In 1979 a summons and complaint was executed and process attempted. service of was It was learned at that Bakeberg that time had left Though the state for attempts California. made, brought by were no either Weegar or the State South Dakota to establish year peri- within this two od. pro- the statute was amended viding six such an action. The State, Department through its of Social Ser- (DSS), Bakeberg vices sued for child under statute. Bakeberg amended action, moved raising to dismiss the the two- year statute of limitations. The trial court motion, holding denied his stat- ute of limitations was unconstitutional. The appealed. court’s decision was not Blood 677 (S.D.1993).* a in performed in 1984 established The direct issue tests Bakeberg appeal probability that was the is whether the 1979 version of 99.5561% provides settled its claim SDCL 25-8-9 which a father of Casie. DSS Bakeberg bringing paternity in the ease was statute of limitations for against 1985 and prejudice Weegar. actions is constitutional. We believe the two- without dismissed year pater establish Kay Weegar, who had since married and nity is unconstitutional and we reverse. Florida, living in was was unaware of the Habluetzel, in 91, settlement. When she contacted DSS In Mills v. U.S. establishing paternity, 1549, in 1992 to assist her 71 L.Ed.2d 770 S.Ct. the United declined based on its 1985 settlement one-year DSS a States Court held stat- Bakeberg. Weegar daughter, with and paternity ute of limitations to establish awas Casie, fifteen, aged now then an Equal violation of the Protection Clause of their own to establish the Fourteenth Amendment. deci- Since its payment support Mills, from to the of child in sion the Court has held two- both present. appeal This arises from the trial six-year statutes of limitations to court’s dismissal of that action. establish to be unconstitutional. Brown, 1, 2199, Pickett v. 103 S.Ct. AND

ANALYSIS CONCLUSION Jeter, Clark v. U.S. S.Ct. L.Ed.2d South Dakota’s statute of limitations re- Clark, analy- In the Court cited the actions, garding paternity has sis, scrutiny, under intermediate used to undergone multiple revision. In when equal protection challenges evaluate to stat- born, Kenyon provided a the statute paternity: utes of limitation to establish two-year period bring law- within which to “First, time, paternity. obtaining At suit to establish the sufficiently long read: ... must be duration to present opportunity a reasonable for those Proceedings obligation to enforce the with an interest such children to assert father shall not be after the Second, any claims their behalf. time lapse years of more from the than placed opportunity on that must child, unless has birth substantially related to the in- State’s established, judicially been or has been avoiding litigation terest of stale or writing acknowledged by the father fraudulent claims.” furnishing support. Clark, 486 U.S. at 108 S.Ct. at 1914 provide In the statute was amended to Mills, 99-100, (quoting 456 U.S. at 102 S.Ct. six-year period bring within which to such at again In actions. the statute under- eighteen-year peri- revision to allow an went Regarding prong, the first the Court noted retroactivity July od with persistent prob- financial emotional and 1989, the statute underwent its final revision likely to afflict the lems which are deleting retroactivity provision. ability pa- and affect her mother appeal ternity problems whether action. These “could stem In this we are not asked legislation relationship can revive a time-barred ac from her with the natural father new having law has or ... from the emotional strain of an tion. Recent South Dakota case barring illegitimate within or even from the desire to upheld the of actions not filed community family statutory disapproval avoid time limitations. Dotson Serr, (S.D.1993), continue after the child is [and] cert. de - if, nied, -, problem may 127 born. The be exacerbated U.S. Doese, happens, Hove v. 501 as often the mother herself is L.Ed.2d 564 grounds opinion and cided on other and the constitutional *The author of this Justice Sabers by majority opinions. in both Dotson and Hove because dissented was not addressed issue and the statutes of believed present places ques- the constitutional case paternity were limitation on actions to establish squarely tion before us. However, both cases were de- unconstitutional. T.L.E., minor.” 486 U.S. at 108 S.Ct. at N.E.2d 431 R.L.G. v. Mills, 105, 4, (quoting at U.S. n. (Ind.App.1983); N.E.2d 1268 State ex rel. (Iowa Ohden, S.Ct. at n. The Court also noted 1984); Rake v. likely that “financial difficulties are to in- Maldonado, Frick v. 296 Md. crease as the child matures and incurs ex- Dudoich, Stringer v. 92 N.M. school, penses clothing, for and medical 98, (1978). 583 Striking P.2d 462 down Clark, 464, care.” at 108 S.Ct. at three-year periods limitation are: Moore v. McNamara, (citing 1915 Moore v. 40 Conn. McNamara, 6, Conn.Supp. 40 478 A.2d 634 (invalidat- 6, 634, Supp. 637 Lepard Commonwealth ex rel. v. limitations)).

ing three-year a statute of Young, State, (Ky.1983); 666 S.W.2d 735 Wilson, Dep’t 530, Revenue v. 194 Mont. Nonetheless, the Court rested its decision of 634 172 County P.2d Lenoir ex rel. prong, on the test’s second the State’s inter- Johnson, 182, Cogdell N.C.App. v. 46 264 avoiding est in stale or fraudulent claims. Callison, S.E.2d 816 Callison v. 687 Clark, Pennsylvania noted that Court (Okla.1984); P.2d 106 State ex rel. S.M.B. v. legislature recently state had amended the D.A.P., 455, (1981). 168 W.Va. 284 S.E.2d 912 permit paternity statute to actions to be Striking four-year down periods limitation brought eighteen years within of the child’s State, Dep’t are: Health and Rehabilitative birth. The Court stated “the new statute is of vices, West, Ser Gillespie proof a tacit v. problems concession that are Behalf of (Fla.1979); 378 Clark, So.2d 1220 465, overwhelming.” not Alexander 486 U.S. at Mills, Commonwealth ex rel. at 708 1916. The Court also took S.W.2d 102 note (Ky.App.1986). Striking “increasingly sophisticated five-year down limi tests for genetic periods W., tation permit are: Patricia R. [which] markers v. Peter exclusion (N.Y. might of over Misc.2d 99% those who be 466 N.Y.S.2d accused of paternity, regardless age Striking of the pe- of the child.” down Clark, at riod are: U.S. 108 S.Ct. at 1916. State ex rel. Family Adult and Bradley, Services Div. v. 295 Or. agree with the United States Su We (1983). P.2d 249 Stinking ten-year down lim- preme Court that two is not of suffi periods itations are: State ex rel. Adult and cient to opportu duration afford reasonable Family Tuttle, Services Div. v. 304 Or. nity action. We note (1987). also, Clark, as in that our state statute has recently permit paternity been amended to A statute found to be unconstitutional up eighteen years actions after the child’s is void from beginning its and is to be treated statute, change in although birth. This if it never existed. State v. required § under 42 if U.S.C. 601 the state is (N.D.1985); McGuire v. C & L qualify to continue funding for federal Inc., (Minn. Restaurant IV, monies, Title is AFDC indicative that the 1984); Briggs Campbell, Wyant & Cannon two-year substantially time not is re Foundry, 379 Mich. lated in avoiding to the state’s interest stale or fraudulent claims. We hold that the 1979 version provides of SDCL which Casie further asserts that her minori bringing limitations for ty status tolls the statute of limitations for actions, fails intermediate scru any paternity brought by her or on tiny test Equal and violates the Protection her behalf. We find the statute to be uncon Clause of the Fourteenth Amendment. stitutional, making argument moot for jurisdictions Other have struck purposes case, down simi holding of the of this but note lar finding statutes them to be unconstitu for the argument record that Casie’s is cor 15-2-22(1) tional under state and federal constitutions. rect. SDCL tolls Striking down periods accruing limitations most civil actions to a are: District Columbia ex rel. W.J.D. v. minor until reaching one after age eigh E.M., (D.C.1983); Schultis, A.2d 457 Crisp teen. 507 N.W.2d Dornfeld Julian, (S.D.1993). 104 Ill.2d 84 Ill.Dec. “A proceeding brought governed holding places Maryland in by of the child be This line or on behalf jurisdictions limitations of at least the with some 28 other American a statute of minority, permit proceeding such a duration of the child’s any during general of limitations which is tolled at time the child’s per minority. Legislation during infancy Sup- likewise on Child Tenn.B.J., port Paternity, mitting proceeding to be at Jan.-Feb. during minority, holding time the child’s or has no 1986 at 20-25. Because of this unnecessary Payne’s for us to time bar.” C.J.S. Children address Out-of-Wed R.W.L., three-year argument In re 116 Wis.2d that a statute of limi- lock tations, tolling 341 N.W.2d In re without would be constitu- (citations omitted) F.P.V., (Colo.App. T.L.H. v. 701 P.2d tional under ...[.] erred, trial a minor [child] court as matter of Since when this action law, dismissing paternity brought, in the action for the statute him. is tolled as to brought on Casie’s behalf. this court has found the Since during limitations is tolled the minor minor’s

MILLER, C.J., SABERS, J., concur. ity, it makes no difference whether the stat years, ute of limitations is two four or KONENKAMP, JJ., AMUNDSON and Therefore, years. six this case can be decid specially. concur ed on the merits and there is no need to AMUNDSON, (concurring special- Justice address the constitutional issue. Sheehan v. ly)- Co., United Ins. 439 N.W.2d Pacific case, tolling the this the issue of statute (S.D.1989); Baldwin First Bank of adjudication paternity of dur- limitations Hills, (S.D.1985); Black 362 N.W.2d 85 minority ing the child’s has been raised for Co., Seagram Drug House Inc. v. Assam of majority acknowledges the first time. The 83 S.D. 159 N.W.2d 210 tolling during that of limitations the statute minority agree. correct. I is KONENKAMP, (concurring spe- Justice cially). wedlock, out it When a child is born of right

should not and does not lose its wholeheartedly agree majority’s I with the support parents. receive SDCL 25-8- majori I reasoning and result. Yet fear the tolling issue was addressed in 50. This ty’s holding may approv be misconstrued as Serv., Dept. Payne v. Co. Social P.G. ing six-year of enacted limitations of (1986), Md.App. (SDCL 1986) amended or wherein the court stated: void, by declaring that (SDCL is, fundamentally, general ten-year right support “The our civil statute 15- 2-8) supplant right may ... inter- be understood to it. Ac [the child’s] of the child Limitation Actions est in the determination of his father is of cord 51 Am.Jur.2d concern, and, expressed, §

primary respect, in this he is As Justice O’Connor deciding “A the factors that beneficiary the ultimate of the action.” Id. review of used (citations omitted). Thus, year the one statute of limitation cannot 507 A.2d at 646 equal protection challenge withstand an indi when a action is ob- longer periods tain for a minor child born out of cates that of limitation for wedlock, applica- paternity of limitations suits also be unconstitutional.” the statute Habluetzel, 91, 106, three-year by analogy equity is the Mills v. ble 1549, 1558, Article, § provision of 5-201 of the Courts (O’Connor, J., concurring). pursuant provisions to the Whether we ever but is tolled 5-201, § to decide if the limita as is the case with other causes of have occasion to be that accrue to benefit of minors. tion is unconstitutional remains (Citations omitted.) however, out, majority points seen.* * Legislature eigh- ch. enacted an in 1986. 1986 S.D.Sess.L. The South Dakota year teen statute of limitations for cases two, five, three, found Bakeburg argues adding

other decisions have this Casie to six, year periods suit and ten unconsti- was a “tactic” to “circumvent” tutional. statute of limitations and avoid Minnesota, holdings Court’s in State ex vein, agree In this I cannot to declare Doese, (S.D. rel. Hove v. hold, I Casie’s would case moot. as the 1993), Dakota, South rel. ex majority acknowledges, that Casie has (S.D.1993). Serr, Dotson claim, through guardian, to her own rights puta Those cases dealt with the of a conservator, litem, guardian or ad which against tive father as state and the moth governed by claim statute of limita rights er. Now we focus of a child. Carty tions set forth in 15-2-22. See if Even the statute of Martin, 233 Kan. by actions bars an action the mother Spada Mich.App. Pauley, state, or the (1986), question certification for it does not bar an action or on behalf declined, 425 Mich. 389 N.W.2d 85. Here, the child.... the Social Services Casie, fifteen, sought who is now the advice Department, People, in- other attorney joined of an this suit person request ap- terested is free to request. grandmother own chose her She pointment guardian of a ad litem for the act litem. ad child; child, minor or the permits The better rule behalf of the can suit the’ action though even the child’s name because the outcome has [a limitations] “directly expired ... affects the status and financial claims of child.” H. Homer People F.P.V., T.L.H. Interest 4.4, Jr., at 180 Domestic Relations (Colo.App.1984). P.2d 88-89 Accord Net- (2d Torrence, Lucey ed. See also Beckley, Wash.App. tles v. P.2d (1970); Misc.2d 309 N.Y.S.2d 755 Lee R. Milbauer, Doak v. 216 Neb. Russ, Annotation, Illegitimate Right Child DeMott, Huss v. Paternity, Maintain Action to Determine Kan. Perez (1983). 19 A.L.R.4th Casie right has a Singh, Cal.App.3d Cal.Rptr. every know supported does child to and be Womack, 230 So.2d Sandifer parents. both See 25-7-6.1 and (Miss.1970); Anderson, see also Weber v. (repealed former SDCL 25-7-7 (Minn.1978). principle first actions should By allowing to maintain Casie her case we forgotten: never be uphold independent identify right child’s It child’s interests that are at stake. father, supported and be her and more— duty The father’s is owed to the encourage opportunity for her to child, not to the mother. [Citation omit- join siblings, family, know her an extended Moreover, is the ted.] child who an has heritage. and to claim Many juris- other establishing interest a relationship to recognize important dictions father.... [the] right. South children no Dakota’s deserve less. Brown, Pickett v. 16 n. 2208 n.

Indeed, Washington Court has

declared that a child has constitutional party types to be made a these Santos,

cases. State v. 104 Wash.2d

P.2d 1179

Case Details

Case Name: Weegar v. Bakeberg

Court Name: South Dakota Supreme Court

Date Published: Feb 8, 1995

Citation: 527 N.W.2d 676

Docket Number: 18647

Court Abbreviation: S.D.