J.G. v. State

439 N.W.2d 615, 149 Wis. 2d 624, 1989 Wisc. App. LEXIS 241
CourtCourt of Appeals of Wisconsin
DecidedMarch 15, 1989
DocketNo 88-0983
StatusPublished
Cited by1 cases

This text of 439 N.W.2d 615 (J.G. v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J.G. v. State, 439 N.W.2d 615, 149 Wis. 2d 624, 1989 Wisc. App. LEXIS 241 (Wis. Ct. App. 1989).

Opinion

NETTESHEIM, J.

This is a paternity case in which the minor father and his parents (collectively, grandparents) appeal from a trial court order directing the grandparents to contribute to the support of C.J.H., the minor child who is the subject of these proceedings.1 The order was made pursuant to the grandparent liability law, sec. 49.90(l)(a)2, Stats.2 Because C.J.H. was conceived and born3 prior to the effective date of the [627]*627statute, we conclude that the grandparents cannot be held liable for C.J.H.’s support. Accordingly, we reverse.

The material facts are undisputed. C.J.H. was born on August 20, 1985. The grandparent liability law, sec. 49.90(1)(a)2, Stats., became effective three months later on November 20, 1985. Secs. 15, 45, 1985 Wis. Act 56. Thereafter, on June 13,1986, the minor father admitted paternity of C.J.H. The trial court then ruled that the paternal grandparents were liable for C.J.H.’s support under sec. 49.90(l)(a)2. The father and paternal grandparents appeal the judgment. Additionally, the American Civil Liberties Union of Wisconsin Foundation, Inc. (ACLU) submitted an amicus curiae brief.

On appeal, the grandparents raise statutory, constitutional, and procedural objections to the trial court’s judgment. However, we need only address the grandparents’ statutory construction argument, as it is dispositive of this appeal.4

The issues we address are: (1) whether the grandparent liability law, sec. 49.90(1)(a)2, Stats., is a remedial or substantive law; (2) whether the legislature has indicated its intent that the law be applied retroactively; and (3) whether the trial court’s application of the grandparent liability law was, in fact, retroactive.

[628]*628STANDARD OF REVIEW AND TEST FOR RETROACTIVE/PROSPECTIVE ANALYSIS

The application of a statute to a set of facts presents a question of law which we review independently of the trial court’s conclusion. In re K.N.K., 139 Wis. 2d 190, 198, 407 N.W.2d 281, 285 (Ct. App. 1987). Similarly, whether a statute is prospective or retroactive presents a question of statutory construction to which we also apply an independent standard of review. See Behnke v. Behnke, 103 Wis. 2d 449, 452, 309 N.W.2d 21, 22 (Ct. App. 1981).

Legislation is presumed to operate prospectively “unless the statutory language clearly reveals by express language or necessary implication an intent that it apply retroactively.” Chappy v. LIRC, 136 Wis. 2d 172, 180, 401 N.W.2d 568, 572 (1987). This presumption applies even where the statute is ambiguous as to its retroactive effect. Shaurette v. Capitol Erecting Co., 23 Wis. 2d 538, 544, 128 N.W.2d 34, 37 (1964). The only exception to this general rule is if a statute is procedural or remedial, rather than substantive, then the statute is generally given retroactive application. Gutter v. Seamandel, 103 Wis. 2d 1, 17, 308 N.W.2d 403, 411 (1981). Procedural or remedial statutes merely confirm already-existing rights and promote remedies by curing defects and adding to the means of enforcing existing obligations. Id. at 17-18, 308 N.W.2d at 411.

REMEDIAL/SUBSTANTIVE ANALYSIS

We first address whether the statute is remedial or substantive. The state contends that the grandparent liability statute is remedial and, thus, may be applied [629]*629retroactively. At the same time, the state concedes that the statute creates new rights to those entitled to bring a paternity action against a class of persons not previously responsible for the support of illegitimate children. We conclude that the state’s concession on this latter point is correct and compels the conclusion that the statute is substantive.

Grandparents had no obligation to support the children of their dependents before the enactment of sec. 49.90(1) (a)2, Stats. Under the law at the time of C.J.H.’s conception and birth, those entitled to bring paternity actions (see sec. 767.45(1), Stats.) could look only to a natural parent for support. Sec. 52.01(1), Stats. (1983-84). The grandparent liability statute created a new right for those entitled to bring paternity actions. Such persons and entities may now assert support claims against grandparents. Sec. 49.90(1)(a)2. Similarly, the statute also imposed new legal obligations. Grandparents became liable under the new law to support the children of their dependent children. Id.

This new law did far more than merely “confirm rights already existing” or operate “in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations.” Gutter, 103 Wis. 2d at 17, 308 N.W.2d at 411. In fact, the law accomplished quite the opposite by creating: (1) new and expanded rights to those entitled to bring paternity actions; and (2) new liability to a class of persons not previously responsible for the support of illegitimate children.

We therefore conclude that sec. 49.90(1)(a)2, Stats., is a substantive statute carrying a presumption of prospective application only.

[630]*630LEGISLATIVE INTENT

Because we conclude that sec. 49.90(l)(a)2, Stats., is a substantive statute, the presumption of prospective operation applies unless the legislature clearly, by express language or necessary implication, provided for the retroactive application of the statute. Chappy, 136 Wis. 2d at 180, 401 N.W.2d at 572.

The statute carries no express language stating that it is to be applied retroactively. Nor are we satisfied that any implied indication of retroactivity is present. In fact, just the opposite is indicated.

The state legislative policy which is embodied in the enactment of sec. 49.90(1)(a)2, Stats., recites as follows:

SECTION 2. Legislative findings. (1) The legislature finds that the high number of unintended or unwanted pregnancies and the resultant high number of abortions is a tragic and undesirable consequence of complex societal problems .... The legislature finds that a multifaceted approach to reducing abortions is necessary and desirable and must involve not only private and public institutions and agencies but, more important, families
(3) The legislature believes that adolescents should be encouraged to take responsibility for the consequences of their actions. It is clear that among adolescents the burden of unwanted pregnancies presently is borne by the adolescent mothers and that ways must be found for adolescent fathers, as well as the parents of adolescents, to share in this responsibility. [Emphasis added.]

Sec. 2, 1985 Wis. Act 56.

[631]*631Laudable as these concerns and goals are on a personal and private basis between parent and child, they did not become the pronounced public policy of this state until November 20, 1985.

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Related

In Re Paternity of CJH
439 N.W.2d 615 (Court of Appeals of Wisconsin, 1989)

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Bluebook (online)
439 N.W.2d 615, 149 Wis. 2d 624, 1989 Wisc. App. LEXIS 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jg-v-state-wisctapp-1989.