State ex rel. Dwight v. Justice

THORNTON, J.

This is a paternity proceeding in which plaintiff was seeking to establish that defendant, rather than her then lawful husband, was the father of her child. She also sought child support payments. Prior to trial the parties entered into the following stipulation as to the facts:

“1. June E. Dwight was married to and was cohabiting with her husband, Douglas W. Dwight at the time of the conception of the child in question.

“2. The child in question was conceived in June, 1967.

“3. Douglas W. Dwight was not impotent at the time of conception of said child.”

Based on the above stipulated facts the trial judge dismissed the proceedings, finding that under the statutes in effect at the time of conception the child is conclusively presumed to be the child of the husband. The mother appeals from this decision, alleging that it was error for the trial judge not to allow her to present evidence to contradict the statutory conelussive presumption.

At the time plaintiff’s child was conceived (1967), ORS 41.350 (6) then provided:

“The issue of a wife cohabiting with her husband, who is not impotent, is legitimate.”

ORS 109.070 (1) then provided:

“The child of a wife cohabiting with her husband who is not impotent, shall be conclusively presumed to be the child of her husband, whether or not the marriage of the husband and wife may be void.”

However, in 1971 the legislature amended OKS 41.350 (6) and OES 109.070 (1). Oregon Laws 1971, eh 127, §§ 1 and 2, pp 161-62.

OES 41.350 (6) now provides:

“The issue of a wife cohabiting with her husband who was not impotent or sterÜe at the; time of conception of the child is legitimate.” (Emphasis supplied.)

OES 109.070 (1) now provides:

“The child of a wife cohabiting with her husband who was not impotent or sterile at the time of conception of the child, shall be conclusively presumed to be the child of her husband, whether or not the marriage of the husband and wife may be void.” (Emphasis supplied.)

From a comparison of the above statutes it will be noted that the 1971 amendment added another fact which must exist before the presumption can arise —the husband must not be sterile at the time of conception.

It appears from the record that all the parties proceeded in the lower court on the assumption that the law in effect at the time of conception is controlling. For the reasons we shall now state we cannot agree with this assumption and conclude that the 1971 amendments, rather than the prior law, are applicable in this cáse.

While as a general rule statutes do not operate retrospectively, retrospective operation will be given to a particular statute or amendment where the intent of the legislature that it should so operate clearly appears from the terms thereof. A reading of the 1971 amendments set forth above shows that the legislature intended that such amendments should apply retrospeetively because of the use of the past instead of the present tense of the verb in the phrase “was not impotent or sterile at the time of conception of the child * * *” (Emphasis supplied.) Ei other words, had the legislature intended that these amendments should apply only prospectively, it would have used the present tense of the verb and said “is not impotent or sterile at the time of conception of the child * * (Emphasis supplied.)

The conclusion that the legislature intended that the 1971 amendments should operate retrospectively is further indicated by the fact that in 1957, when OHS 109.070 (1) was originally enacted, the legislature also provided that the statute “shall apply to all persons, irrespective of whether they are bom before or after the Act takes effect.” Oregon Laws 1957, ch 411, § 5, p 573. See, OHS 109.090 (1).

Also, we note that retrospective interpretation of statutes has frequently been approved by the courts in cases such as here where the statute is remedial in character. For example, in Wadsworth v. Brigham et al, 125 Or 428, 259 P 299, 266 P 875 (1928), our Supreme Court held that a remedial statute legitimatizing the issue of void marriages would be given retrospective operation to carry out legislative intent to cover children born prior to the enactment of the statute. We believe that the principles recognized and applied in Wadsworth v. Brigham et al, supra, apply with equal force to the case at bar. A similar result was reached in Corley v. Moore, 236 Md 241, 243, 203 A2d 697 (1963), where the Maryland Court of Appeals gave retrospective application to a similar paternity statute. The court said, inter alia:

“* * * That the Act was intended to be remedial is abundantly shown by the recitals in sée. 66A. Its purpose was not to punish the parents, but to enforce the ‘basic obligations and responsibilities of .parenthood.’ * * *”

For the reasons stated above we conclude that OES 41.350 (6) and 109.070 (1), as amended in 1971, apply in this ease, irrespective of the fact this child was conceived and bom prior to the enactment of the 1971 amendments. Inasmuch as the stipulation did not refer to the sterility or nonsterility of the husband at the time of conception, and there was no evidence of such sterility or nonsterility introduced at the trial below, the statutory conclusive presumption could not arise.

Eeversed and remanded.