K.B. v. G.M.

490 N.W.2d 715, 1992 N.D. LEXIS 191
CourtNorth Dakota Supreme Court
DecidedOctober 1, 1992
DocketCiv. No. 920049
StatusPublished
Cited by6 cases

This text of 490 N.W.2d 715 (K.B. v. G.M.) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
K.B. v. G.M., 490 N.W.2d 715, 1992 N.D. LEXIS 191 (N.D. 1992).

Opinions

ERICKSTAD, Chief Justice.

K.B. [ “Kim” ], A.B. [ “Ann“ ], the Walsh County Social Service Board, and Richard Stewart as Kim’s guardian ad litem appeal from a district court summary judgment dismissing their paternity action against G.M. [ “Gary” ]. We reverse and remand for further proceedings.1

In 1972 Ann married R.B. [ “Robert” ]. Kim was born in 1976. Ann and Robert divorced in 1981, and Ann was awarded custody of Kim.

In 1989 the director of the Social Service Board, as assignee of Ann’s right to collect support, brought an action against Robert, presumably to collect child support,2 in which the issue of paternity was raised. Genetic testing established that Robert is not Kim’s biological father. On June 30, 1989, the district court entered findings of fact, conclusions of law, and an order determining that Robert is not Kim’s father. On July 11, 1989, an amended divorce judgment was entered canceling Robert’s support obligation. No appeal was taken from the order or judgment.

After learning that Robert was not Kim’s biological father, Ann, in an interview with the regional child support unit, identified Gary as Kim’s father. Kim, Ann, the Social Service Board, and Kim’s guardian ad litem commenced this action, alleging that Gary is Kim’s biological father. Gary responded with a motion for summary judgment, asserting that, by statute, Robert is Kim’s presumed father and that the time limitations under Chapter 14-17, N.D.C.C., precluded the court from declaring Robert’s non-paternity in the 1989 action. The district court, concluding that it had erred in decreeing that Robert is not Kim’s father, entered summary judgment dismissing the action against Gary. Kim, Ann, the Social Service Board, and Kim’s guardian ad litem appealed.

Under Section 14-17-04(l)(a), N.D.C.C., a man is presumed to be the natural father [717]*717of a child if he is married to the child’s mother at the time of the child’s birth. Section 14-17-05(l)(b), N.D.C.C., prescribes time limits for bringing an action to challenge the presumption of paternity:

“Determination of father and child relationship — Who may bring action— When action may be brought.
“1. A child, his natural mother, or a man presumed to be his father under subdivision a, b, or c of subsection 1 of section 14-17-04, may bring an action:
* * ‡ * * *
“b. For the purpose of declaring the nonexistence of the father and child relationship presumed under subdivision a, b, or c of subsection 1 of section 14-17-04 only if the action is brought within a reasonable time after obtaining knowledge of relevant facts, but in no event later than five years after the child’s birth. After the presumption has been rebutted, paternity of the child by another man may be determined in the same action, if he has been made a party.” [Emphasis added].

Section 14-17-05(l)(b), which is our codification of Section 6(a)(2) of the Uniform Parentage Act [U.P.A.], is a statute of limitations. See, e.g., People in Interest of L.J., 835 P.2d 1265, 1267 (Colo.Ct.App. 1992); Reynolds v. Reynolds, 458 N.W.2d 103, 104-105 (Minn.1990); Clay v. Clay, 397 N.W.2d 571, 576 (Minn.Ct.App.1986). A statute of limitations acts only to bar the bringing of the specified action, and does not extinguish the claim or affect remedies other than the one to which it applies. Guthmiller v. North Dakota Department of Human Services, 421 N.W.2d 469, 471, 473 (N.D.1988); Larson v. Quanrud, Brink & Reibold, 78 N.D. 70, 47 N.W.2d 743, 750 (1950).

Under similar circumstances, the Colorado Court of Appeals has held that its codification of U.P.A. § 6(a)(2) [Colo.Rev.Stat. § 19-4-107(l)(b) ] does not prevent a presumed father from challenging the presumption of paternity in a child support collection action brought more than five years after the child’s birth. People in Interest of L.J., supra, 835 P.2d at 1266. The court relied upon People in Interest of R.T.L., 780 P.2d 508, 514 (Colo.1989), in which the Supreme Court of Colorado construed the same statute:

“Nowhere does the statute limit the time within which a presumed father may assert as a defense the nonexistence of the father and child relationship. Consequently, this case falls squarely within the general rule ‘that a statute of limitations, although barring the use of a claim for affirmative relief after the limitations period has run, is not a bar to asserting that claim as a defense.’ Dawe v. Merchants Mortgage and Trust Corp., 683 P.2d 796, 800 (Colo.1984)....”

The Supreme Court of Minnesota has similarly construed its codification of U.P.A. § 6 [Minn.Stat.Ann. § 257.57]:

“[T]he right to deny paternity defensively, whether asserted to rebut a presumption of paternity or simply to defend against an allegation of paternity where there is no presumed father, is not subject to time limitations and may be exercised by the defendant in any action in which it is alleged that he is the child’s father.”

State of Georgia ex rel. Brooks v. Braswell, 474 N.W.2d 346, 350 (Minn.1991); see also Reynolds v. Reynolds, supra, 458 N.W.2d at 105; State ex rel. Ward v. Carlson, 409 N.W.2d 490, 493 (Minn.1987).

Section 14-17-05(l)(b), N.D.C.C., creates a statutory cause of action to rebut the presumption of paternity. The five-year limitation period for bringing such an action does not, however, limit the defenses available to the presumed father in other actions. Consequently, the five-year statute of limitations of Section 14 — 17—05(l)(b), N.D.C.C., did not preclude Robert’s assertion of non-paternity as a defense in the 1989 proceeding.

Furthermore, a statute of limitations in a civil proceeding is an affirmative defense. McCarter v. Pomeroy, 466 N.W.2d 562, 566 (N.D.1991); Rule 8(c), N.D.R.Civ.P. Affirmative defenses are waived if not pleaded. Northwestern Fed[718]*718eral Savings and Loan Association of Fargo v. Biby, 418 N.W.2d 786, 787 (N.D. 1988); Shirley v. State, 103 N.W.2d 103, 108 (N.D.1960). In this case, no party raised the five-year statute of limitations under Section 14-17-05(l)(b), N.D.C.C., as a defense in the 1989 proceeding. Accordingly, the defense was waived, and the district court did not err in holding that Robert is not Kim’s father.

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Bluebook (online)
490 N.W.2d 715, 1992 N.D. LEXIS 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kb-v-gm-nd-1992.