State of Minn. Ex Rel. Hove v. Doese ( 1993 )

HENDERSON, Justice (on reassignment).

PROCEDURAL HISTORY/ISSUES

This paternity action commenced on December 28, 1991, when the State of Minnesota, on behalf of Brenda J. Hove (Hove), served a summons, Order for Hearing, and various other papers upon Donald C. Doese (Doese) of Sioux Falls. Doese promptly responded and requested that a copy of the complaint be served. On January 27, 1992, said complaint was served, with Doese filing his answer and a Motion to Dismiss the following day.

After the trial court denied the motion, Doese filed a Petition for Intermediate Appeal on February 14, 1992, which was granted by this Court on March 6, 1992, raising the following issues:

I. Do the aims and purposes of a statute of limitations involving paternity proceedings protect defendants such as Doese?

II. Does an amendment enlarging a statute of limitations apply to causes of action which were previously time-barred by the prior statute?

III. Was Doese denied due process and equal protection by the revival of a cause of action previously time- • barred?

We reverse the trial court and hold that the cause of action, herein alleged, which was previously barred by the statute of limitations, cannot be retroactively applied by subsequent legislation.

FACTS

On March 15, 1976, Brenda Johnson Hove gave birth to M.A.W. and designated the child as “illegitimate” on the Minnesota birth record. Over eight years later, in August of 1984, the Child Support Office of Morrison County, Minnesota sent a letter to Doese naming him as a putative father of M.A.W. and seeking child support. Doese promptly denied paternity and asserted that the action had been barred by the six-year statute of limitations under SDCL 25-8-9 as of March 15, 1982.

Neither Minnesota nor Hove ever replied, reacted or responded to Doese's denial. Some seven years later — nearly sixteen years after M.A.W. was born — Minnesota served various documents on Doese, including an Order for Hearing. (No complaint was served.) Claiming that the 1989 amendment to SDCL 25-8-9 revived the previously barred paternity action, these December 1991 documents sought determination of paternity, child support arrearag-es, future support, attorney’s fees, and expenses.

On January 19,1992, nine days before he received the formal complaint, Doese filed an answer setting forth several defenses and an accompanying affidavit. He also filed a Motion to Dismiss claiming that the paternity action was barred by the statute of limitations. After the trial court denied the motion, he requested and was granted this intermediate appeal.

DECISION

A man should live up to his responsibilities by caring for and supporting his offspring. However, when a man denies paternity, this Court must look to the law to determine the paternity claim. Doese may, in fact, be the biological father. That, however, is not the issue before this Court. As questions of law are fully reviewable by this Court, Matter of SDDS, Inc., 472 N.W.2d 502, 507 (S.D.1991), our main concern is whether new legislation may revive a cause of action previously barred by the statute of limitations.

When Minnesota contacted Doese in 1984, he denied paternity and asserted that the paternity action was barred because over six years had passed since M.A.W.’s birth. SDCL 25-8-9 then provided:

Proceedings to enforce the obligation of the father may not be brought after the lapse of more than six years from the birth of the child, unless paternity has been judicially established, or has been acknowledged by the father in writing or by furnishing of support.

With the action time-barred, Minnesota abandoned its legal efforts. However, in 1986, the statute was amended as follows:

Proceedings to establish paternity and enforce the obligations of the father may be brought at any time prior to the eighteenth birthday of the child. The provisions of this section apply to all children who have been born since July 1, 1968.

Another amendment to SDCL 25-8-9 was passed in 1989:

Proceedings to establish paternity and enforce the obligations of the father may be brought at any time before the eighteenth birthday of the child.

Nearly three years after the current statute was amended, Minnesota re-entered the picture claiming the cause of action had been resurrected by this subsequent legislation. SDCL 2-14-21 addresses the issue of retroactive application of statutes as follows:

No part of the code of laws enacted by § 2-16-13 shall be construed as retroactive unless such intention plainly appears.

In 1986, such intention did plainly appear as: “[t]he provisions of this section apply to all children who have been born since July 1, 1968.” Yet, this language was removed from the 1989 version of SDCL 25-8-9, and with it any plain intention of re-troactivity. Minnesota’s cause of action was barred in 1984 and remains so today.

This train of thought is hardly novel. In 1975, Wisconsin law stated that a paternity action must be brought within five (5) years of the date of a child’s birth. In re Paternity of D.L.T., 137 Wis.2d 57, 403 N.W.2d 434 (1987), involved a paternity action that had expired under the statute of limitations in 1981, however an amended statute supposedly revived the action in 1984. Under the new legislation, a cause of action was permitted up to 19 years from the date of birth. Wisconsin’s highest court held that the legislature could not revive a cause of action which had previously been barred by the statute of limitations. Thus, the retroactive paternity claim was forbidden. In 1990, Wisconsin reinforced this holding with In re Paternity of D.S.L., 159 Wis.2d 747, 465 N.W.2d 242 (App.1990). We submit to the same rationale.

This Court was exposed to the issue of reviving time-barred actions in West v. John Morrell & Co., 460 N.W.2d 745 (S.D.1990), where a 1980 amendment to a tort law changed the triggering date for a cause of action and enlarged the limitations period. Essentially, on July 1, 1980, John Morrell became a defendant in a worker’s compensation claim that had previously expired under the statutes. This Court held that the amendment to SDCL 62-7-35 had a “definite effect upon John Morrell’s substantive rights in this case and cannot be retroactively applied under these facts." Id. at 747. Statutes which affect substantive rights are not given retroactive effect. Id. We should continue to follow this same logic. Other jurisdictions do.

Where a statute limits the time during which a cause of action can arise, it abolishes the cause of action after the passage of time even though the cause of action may not have yet accrued. It is substantive. Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 831 P.2d 958 (1992).

We seemingly held contrary in Lyons v. Lederle Laboratories, 440 N.W.2d 769 (S.D.1989), when we cited authority from other jurisdictions for the proposition that statutes of limitation are remedial, not substantive. However, this Court has not abandoned the rule cited earlier in this writing that laws will have a retroactive effect only when such intention plainly appears. SDCL 2-14-21. Furthermore, the end result in Lyons was this Court refused to revive a cause of action which had been barred by the passage of time.

The great preponderance of authority favors the view that one who has become released from a demand by the operation of the statute of limitations is protected against its revival by a change in the limitation law. 51 Am.Jur.2d, Limitation of Actions, § 44 (1970). In every case of doubt, the doubt must be resolved against the retrospective effect and in favor of prospective construction only. First Nat. Bank of Minneapolis v. Kehn Ranch, 394 N.W.2d 709, 717 (S.D.1986); State v. Westling, 81 S.D. 34, 130 N.W.2d 109 (1964).

Most state courts addressing the issue of the retroactivity of statutes have held that legislation which attempts to revive claims which have been previously time-barred im-permissibly interferes with vested rights of the defendant, and thus violates due process. These courts have taken the position that the passing of the limitations period creates a vested right of defense in the defendant, which cannot be removed by subsequent legislative action expanding the' limitations period. See Waller v. Pittsburgh Corning Corp., 742 F.Supp. 581 (D.Kan.1990), aff'd, 946 F.2d 1514 (10th Cir.1991); Lundquist v. Coddington Bros., Inc., 202 F.Supp. 19 (W.D.Wis.1962); Wasson v. State ex rel. Jackson, 187 Ark. 537, 60 S.W.2d 1020 (1933); Cheswold Volunteer Fire Co. v. Lambertson Const. Co., 489 A.2d 413 (Del.1984); Mazda Motors of America v. S.C. Henderson & Sons, 364 So.2d 107 (Fla.Dist.Ct.App.1978), cert. denied, 378 So.2d 348 (1979); Sanchez v. Access Associates, 179 Ill.App.3d 961, 128 Ill.Dec. 813, 535 N.E.2d 27 (1989); Jackson v. Evans, 284 Ky. 748, 145 S.W.2d 1061 (1940); Ayo v. Control Insulation Corp., 477 So.2d 1258 (La.Ct.App.1985), cert. denied, 481 So.2d 1349 (1986); Dobson v. Quinn Freight Lines, Inc., 415 A.2d 814 (Me.1980); Zitomer v. Slate, 21 Md.App. 709, 321 A.2d 328 (1974), rev’d on other grounds, 275 Md. 534, 341 A.2d 789 (1975), cert. denied, 423 U.S. 1076, 96 S.Ct. 862, 47 L.Ed.2d 87 (1976); Lohrstorfer v. Lohrstorfer, 140 Mich. 551, 104 N.W. 142 (1905); Cole v. National Life Ins. Co., 549 So.2d 1301 (Miss.1989); State ex rel. Research Medical Center v. Peters, 631 S.W.2d 938 (Mo.App.1982); Williams v. Wellman-Power Gas, Inc., 174 Mont. 387, 571 P.2d 90 (1977); Gould v. Concord Hospital, 126 N.H. 405, 493 A.2d 1193 (1985); Givens v. Anchor Packing, Inc., 237 Neb. 565, 466 N.W.2d 771 (1991); Grand Island School Dist. v. Celotex Corp., 203 Neb. 559, 279 N.W.2d 603 (1979); Colony Hill Condominium I Ass’n v. Colony Co., 70 N.C.App. 390, 320 S.E.2d 273 (1984), cert. denied, 312 N.C. 796, 325 S.E.2d 485 (1985); Overmiller v. D.E. Horn & Co., 191 Pa.Super. 562, 159 A.2d 245 (1960); Mann v. Jack Roach Bissonnet, Inc., 623 S.W.2d 716 (Tex.App.1981); Del Monte Corp. v. Moore, 580 P.2d 224 (Utah 1978); School Bd. of Norfolk v. U.S. Gypsum Co., 234 Va. 32, 360 S.E.2d 325 (1987); Haase v. Sawicki, 20 Wis.2d 308, 121 N.W.2d 876 (1963).

Even the state legislature which creates a statute of limitations may not enact a statute that retroactively revives a cause of action already barred by the statute of limitations. Sutherland Stat. Const. § 41.09 at 396 (4th Ed.1986). When a right to sue has expired under the applicable statute of limitations prior to the effective date of a new and longer statute, the new limitations period cannot revive the expired cause of action. Amendments extending the time of a filing of a lawsuit will not be applied retroactively to revive causes of action previously barred. See People v. Holleron, 797 P.2d 806 (Colo.App.1990); Sanchez v. Access Associates, 179 Ill.App.3d 961, 128 Ill.Dec. 813, 535 N.E.2d 27 (1989); Green v. Karol, 168 Ind.App. 467, 344 N.E.2d 106 (1976); LeBlanc v. City of Lafayette, 558 So.2d 259 (La.App.1990); Sessa v. State, 88 Misc.2d 454, 388 N.Y.S.2d 513 (1976); Maycock v. Gravely Corp., 352 Pa.Super. 421, 508 A.2d 330 (1986); Twomey v. Carlton House of Providence, Inc., 113 R.I. 264, 320 A.2d 98 (1974); Goff v. Mills, 279 S.C. 382, 308 S.E.2d 778 (1983) (An enlargement of the limitations period would govern the claim because it had not been time-barred under the pre-existing statute); United States Rubber Co. v. McManus, 211 S.C. 342, 45 S.E.2d 335 (1947); Continental Southern Lines, Inc. v. Hilland, 528 S.W.2d 828 (Tex.1975); Greenhalgh v. Payson City, 530 P.2d 799 (Utah 1975); Haase v. Sawicki, 20 Wis.2d 308, 121 N.W.2d 876 (1963).

In addition, several state courts have found revival legislation invalid under specific provisions in their state constitutions which prohibit retroactive legislation. See Tyson v. Johns-Manville Sales Corp., 399 So.2d 263 (Ala.1981); Jefferson County Dept. of Social Services v. D.A.G., 199 Colo. 315, 607 P.2d 1004 (1980); Uber v. Missouri Pacific Railroad Co., 441 S.W.2d 682 (Mo.1969); Gould v. Concord Hosp., 126 N.H. 405, 493 A.2d 1193 (1985); Wright v. Keiser, 568 P.2d 1262 (Okla.1977); Commonwealth v. Thek, 376 Pa.Super. 390, 546 A.2d 83 (1988); Ford Motor Co. v. Moulton, 511 S.W.2d 690 (Tenn.1974), cert. denied, 419 U.S. 870, 95 S.Ct. 129, 42 L.Ed.2d 109 (1974).

Overall, the states logically hold that once the statute of limitations period has expired, the respective action is barred or non-existent. Generally, one does not contemplate the consequences of their actions under the applicable statute of limitations. Nonetheless, through legislative grace, people can be freed from the consequences of their actions after a statutory period of time resulting in peace of mind for the individual, less docket congestion, fewer administrative problems for the courts, and less work for law enforcement agencies. Stale cases are eliminated. To hold otherwise, would allow for a dangerous precedent where any limitation period can be rewritten retroactively, thus making the purpose of statutes of limitations meaningless. The purpose of a statute of limitations is speedy and fair adjudication of the respective rights of the parties. Merkwan v. Leckey, 376 N.W.2d 52 (S.D.1985); Burke v. Foss, 334 N.W.2d 861 (S.D.1983). This Court has said that a defense based on a statute of limitations is meritorious and should not be regarded with disfavor. It should be treated like any other defense. We held so in Chipperfield v. Woessner, 84 S.D. 13, 14, 166 N.W.2d 727, 728 (1969), and reaffirmed this thinking in 1983. Burke at 864. As recently as 1985, we faced a statute of limitations issue and held so again. Merkwan at 54.

In Clark v. Jeter, 486 U.S. 456, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988), the United States Supreme Court dealt with the issue of paternity claims barred by the statute of limitations. Although Pennsylvania law placed a six-year limit on paternity actions, the mother of the child did not file until almost ten years after the birth. Subsequently, the trial court found the action to be barred by the statute of limitations. While the case was on appeal, the legislature increased the statute to eighteen years. However, the Pennsylvania Supreme Court held that the amendment could not revive the cause of action.

The U.S. Supreme Court outlined equal protection challenges to statutes of limitations concerning the establishment of paternity.

First, the period for obtaining support ... must be sufficiently long in duration to present a reasonable opportunity for those with an interest in such children to assert claims on their behalf. Second, any time limitation placed on that opportunity must be substantially related to the State’s interest in avoiding the litigation of stale or fraudulent claims.

Id. at 1914; Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982). The Supreme Court concluded that “Pennsylvania’s 6-year statute of limitations violates the Equal Protection Clause. Even six years does not necessarily provide a reasonable opportunity to assert a claim on behalf of an illegitimate child.” Clark, 486 U.S. at 463, 108 S.Ct. at 1915. Nevertheless, Clark was not decided upon that conclusion.

We do not rest our decision on this ground, however, for it is not entirely evident that six years would necessarily be an unreasonable limitations period for child support actions.

Id. at 464, 108 S.Ct. at 1915. Instead, the Supreme Court held that the Pennsylvania statute could not withstand the heightened scrutiny of the Equal Protection Clause.^*

It is undisputed that Minnesota and Hove were ready to proceed with a paternity claim at least since 1984, seven years prior to this cause of action. Minnesota and Hove did not allege that they were deprived of a reasonable amount of time to assert a claim nor do they claim the statute infringes upon Hove’s constitutional rights. Rather, they only allege that the 1989 statute can be applied retroactively. Clark does not stand for such a broad proposition.

Under precedent and logic, this Court acknowledges that statutes of limitations do, in fact, have limitations and that Hove’s cause of action is barred. The trial court has erred as a matter of law. Matter of Dependency and Neglect of A.L., 442 N.W.2d 233, 235 (S.D.1989). Had this action come before this Court under the 1986 law, it also would have been barred under the 1984 version for the same reasons cited herein.

Reversed.

MILLER, C.J., and AMUNDSON, J., concur. WUEST and SABERS, JJ., dissent.

* Under 42 U.S.C. §§ 601, 666 (1988), South Dakota must permit the establishment of paternity any time prior to such child’s eighteenth birthday in order to receive funding from Title IV, Aid to Families with Dependent Children. Neither side briefed nor presented the issue. Fullmer v. State Farm Ins. Co., 498 N.W.2d 357 (1993); Weaver v. Boortz, 301 N.W.2d 673 (S.D.1981). It is waived. Furthermore, there are no federal or state court interpretations of this statute. Although this law had been in effect approximately three years, we note that it was not applied in Clark. For these reasons, this Court shall not apply it either.