NIELSEN, STATE DEPT. OF SS v. Hansen

564 P.2d 1113, 1977 Utah LEXIS 1143

• Court: Utah Supreme Court
• Decided: May 16, 1977
• Docket: 14628
• Status: Published

Opinions

ELLETT, Chief Justice:

The appellants sued respondent to establish paternity and to require him to pay $40 per month for the support of his alleged illegitimate child. The complaint alleges that on February 2, 1965, the respondent signed and swore to a document entitled “Acknowledgment of Paternity and Support Agreement” wherein he acknowledged that the infant child was his issue and wherein he prayed “that a judgment be entered decreeing said child as a legitimate child of your petitioner, . .; and that it be his legitimate child by acknowledgment; and that your petitioner be decreed, therefore, the right to visit said child at reasonable times and places; and that your petitioner be ordered to pay the amount of forty dollars ($40.00) per month for the support of said child until it reaches the age of majority.”

The complaint further alleges that the State of Utah is now furnishing assistance to the child in the amount of $40 per month and has done so for the past four months.

The trial court dismissed the complaint upon the ground that the statute of limitations ¹ prevented a recovery. That section, so far as material, provides that an action to enforce any liability due or to become due, for failure to provide support or maintenance for dependent children, must be brought within eight years. The meaning of the phrase “to become due” is that when an amount is to become due in the future, suit must be begun within eight years after it accrues. The statute of limitations thus applies equally to a liability which will accrue in the future as it does to one which is now due.

This suit is not an action to recover on a contract nor is it one to collect for failure to furnish support to one’s minor child. It is a suit to have the court declare the respondent to be the father of an illegitimate child and to obtain support for said child. Neither is this a case under the Bastardy Act wherein a prosecution must be brought within four years after the birth of the child.²

Under the Uniform Paternity Act³ the father’s liability for past education and necessary support are limited to a period of four years next preceding the commencement of the action. Here, appellants only seek support for four months past.

The State Department of Social Services may bring suit against the father either in the name of the obligee or in its own name.⁴

The document alleged to be signed by the respondent is not now a valid contract for the reason that it does not comply with the provisions of our statute⁵ which provides that an agreement of settlement with the alleged father is binding only when approved by the court.

We are unable to find any time limitation as to when a suit may be instituted to determine paternity. The child has an interest in the matter and courts should be reluctant to invent limitations not set out in the statute, especially where minor children may be adversely affected thereby.

Ordinarily a statute limiting the time for bringing an action is considered to be in the public interest in that it prevents groundless actions from being won because of defendant’s inability to present evidence. In cases of establishing paternity, there are other public policy considerations such as the need of a minor child for support and the requirement that the man who actually sired the child be required to furnish its support.

In this case, the possibility of a false claim being perpetrated is remote because of the acknowledgment of paternity which was signed and sworn to, should it be established as genuine. If the document of acknowledgment is established as genuine, the respondent is in a poor position to complain because of delay in its presentment to a court. Each month of delay saved the respondent $40 and that seems to be to his advantage. If he has any defenses to raise because of laches, etc., he can do so by answer. He cannot prevail by having the complaint dismissed.

The case of Martinez v. Romero⁶ decided December 21, 1976, was brought by the Department of Social Services and the mother of an illegitimate child to recover money expended by the State of Utah for confinement at birth, for child support furnished by the state, and to compel the defendant to furnish future support for the child. Certain language used in that decision seems to be in conflict with our decision herein. Insofar as the language of that case is at variance with the present decision, it is disapproved and overruled.

The judgment of the court below is reversed, and this matter is remanded for such further proceedings not inconsistent with this decision as may be proper. No costs are awarded.

CROCKETT, J., concurs in the main opinion and also in Justice HALL’s concurring opinion.

1 . 78-12-22, U.C.A.1953 (1975 Pocket Supp.).

2 . 77-60-15, U.C.A.1953.

3 . 78-45a-3, U.C.A.1953 (1975 Pocket Supp.).

4 . 78-45a-2, U.C.A.1953 (1975 Pocket Supp.).

5 . 78-45a-13, U.C.A.1953 (1975 Pocket Supp.).

6 . Utah, 558 P.2d 510 (1976).