Missouri Division of Child Support Enforcement and, J.D.J., Individually and as Next Friend of C.J., Petitioners/Appellants, v. T.J. and G.L.T., Respondents.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Missouri Division of Child Support Enforcement and, J.D.J., Individually and as Next Friend of C.J., Petitioners/Appellants, v. T.J. and G.L.T., Respondents. Case Number: 73176 Handdown Date: 06/30/1998 Appeal From: Circuit Court of the City of St. Louis, Hon. Iris Ferguson Counsel for Appellant: Jane M. Boardman and John P. Dockery, Jr. Counsel for Respondent: Michael A. Gross Opinion Summary: Petitioners in suit against presumed father to declare his paternity, or in the alternative, declare co-defendant, the putative father, the father of child appeal the dismissal of their petition. REVERSED AND REMANDED. Division Three holds: (1) The cause of action against presumed father to declare his paternity may be brought at any time. Former section 210.826.1(2) applied to a suit brought for the purpose of declaring non-paternity. (2)Petitioners may fail to prove presumed father's paternity or he may defend and prevail. For this reason, putative father is not protected by the proposition the alternative cause of action against him could never be tried because presumed father's paternity must be disestablished before his alleged paternity be adjudged. Citation: Opinion Author: Kent E. Karohl, Judge Opinion Vote: REVERSED AND REMANDED. Ahrens, P.J. and Crandall, Jr., J., concur. Opinion: Petitioners-appellants appeal dismissal of their two-count petition. Petitioner, J.D.J., is mother of C.J. [child] and wife of respondent T.J. Count I is a paternity suit brought under the provisions of the Uniform Parentage Act, sections

210.817 to 210.852 RSMo Cum. Supp. 1992. Count I sought a declaration identifying the father of child. Count II requested an order for child support from the father. Respondent, T.J., [presumed father], was served with petition and summons, but defaulted. Accordingly, he has not denied paternity and has not filed a motion to dismiss because of the time limitations in section 210.826.1(2).(FN1) G.L.T. [putative father] filed a motion to dismiss arguing the action against presumed father was barred by the statute of limitations contained in section 516.120 RSMo and pursuant to the authority in P.L.K. vs. D.R.K., 852 S.W.2d 366 (Mo. App. E.D.1993). The motion did not contain a reference to section 210.826.1(2). The court sustained putative father's motion without specifying a reason. Thereafter, the court, sua sponte, dismissed the petition against presumed father. Petitioners appeal. We review on the basis of allegations of fact in the petition and undisputed facts presented by the parties. Mother married presumed father in August of 1982. Child was born on August 6, 1986. They were never divorced. J.D.J. [mother] filed the petition in this case on January 31, 1996, when child was nine years old. The respondents are presumed father and putative father. The original petition was ineffective because presumed father was not a party and the issue of presumed father's paternity was not presented. It merely requested a declaration that putative father was the father and, in Count II, an order for child support. On April 15, 1996, plaintiffs amended the petition to add presumed father as a respondent. The amended petition alleged in Count I that "either Respondent, [putative father], or Respondent, [presumed father], is the father of [said child] and, to protect the interest of said child, it is necessary to have the relationship of parent and child declared to exist between either Respondent, [putative father], or Respondent, [presumed father], and said child." The petitioners alleged in Count II that mother is in need of financial assistance to support child and that presumed father or putative father have the financial ability to pay a reasonable sum each week for child support. They prayed the court "order either Respondent, [putative father], or Respondent, [presumed father], to pay to [mother] as and for the support of the minor child." Petitioners' points on appeal are directed at trial court error in dismissing their petition against putative father, and thereafter dismissing their petition against presumed father, after finding petitioners were prohibited from bringing their action pursuant to the Uniform Parentage Act. Putative father contends "the action was barred by former section 210.826.1(2)." Accordingly, we consider the allegation in the motion referring to section 516.120 abandoned and section 210.826.1(2) substituted therefore. Prior to July 15, 1993, section 210.826 permitted a child, his natural mother, a presumed father, or the Division of Child Support Enforcement to bring an action: "(2) [f]or the purpose of declaring the nonexistence of the father and child relationship presumed under [section 210.822] 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."

(emphasis added). That section also provided, "[a]fter the presumption [of husband's paternity] 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). The statute of limitations in section 210.826 does not apply to a cause of action for a declaration of paternity of a putative father. Therefore, the only effect of the five-year limitation on suits against a putative father would be indirect or derivative. We first consider petitioners' point that the court erred in dismissing the action against presumed father. Section 210.826.1(2) has no application to the cause of action against presumed father to declare his paternity and order child support. That section applies only to a suit filed for the purpose of declaring the non-existence of the father-child relationship between a presumed father and child. The form of the petition filed in this case includes a request to declare a father-child relationship between presumed father and child. The petition also requests in Count II an appropriate judgment for child support. There is no time limitation on a petition to declare presumed father the father of child. Accordingly, the judgment of dismissal of the petition against presumed father is reversed and that cause of action remanded. Petitioners also argue trial court error in dismissing their action against putative father. In three points they argue that section 210.826.1(2) RSMo Cum. Supp. 1992 and P.L.K. v. D.R.K., 852 S.W.2d 366 (Mo. App. E.D. 1993) offer no authority for dismissal of their alternative cause of action against putative father. They argue the Uniform Parentage Act offered a child, a natural mother, a presumed father or the Division of Child Support Enforcement a period of five years from the date of birth to file an action to disestablish the presumed father's father-child relationship. They also argue section 210.826.1(2) applies only to a petition to sever the relationship, not one to confirm it. Their petition was to establish the relationship. Thus, the petition was timely. If the evidence fails to prove presumed father is the father, and the court so rules, then the alternative pleading against putative father can proceed. The five-year limitation does not foreclose a defense of non-paternity by presumed father. A Colorado court, interpreting a similar Uniform Parentage Act provision, decided a presumed father could not initiate any action to declare the non-existence of paternity more than five years after the birth of the child, but that statute did not limit the time within which presumed father may assert non- paternity as a defense. People in Interest of R.T.K., 780 P.2d 508, 512-514 (Colo. 1989). We agree. The provisions of section 210.826(2) relate only to the bringing of an action to determine non-existence of the father-child relationship, not the defense of an action to determine paternity. Petitioners also argue that P.L.K. offers no authority for dismissal of their petition against putative father. In P.L.K., a child filed a petition to declare the non-existence of a father-child relationship between her and her mother's husband at

the time of her birth. The child was born in 1985. The petition was filed in 1991, more than five years after birth. Mother moved to dismiss child's petition filed for that purpose. The trial court denied the motion. On appeal, we reversed and ordered dismissal. Obviously, the petition of the child was brought to do exactly what section 210.826.1(2) allowed, but only if it was filed within five years of the child's birth. The natural mother, one of the parties authorized to file such suit and who had an interest in opposing a declaration of non-paternity, filed a motion to dismiss and asserted the five-year limitation. P.L.K. considered a petition filed for the sole purpose of obtaining a judgment of the non-existence of a father- child relationship between a presumed father and his child. In the present case, petitioners presented the court with a petition requesting a judgment establishing the legal existence of a father-child relationship, not its non-existence. The true defense offered by putative father's motion to dismiss was not a time limit on the petition to declare presumed father the father of child. His defense is based on the requirement that a court "disestablish the presumed father and child relationship" before it can establish another one. P.L.K., 852 S.W.2d at 368. Re-phrased, putative father alleged in his motion and now argues the expiration of five years deprives any court of the authority to: (1) declare a husband and presumed father a non-father; and, therefore, (2) reach the question of paternity of any other person because the child is more than five years old and has a presumed father. Putative father relies on the legal conclusion that a child cannot have two fathers. He does not directly rely on section 210.826.1(2) or our holding in P.L.K. The trial court sustained his motion which alleged the paternity suit against presumed father was time barred on child's fifth birthday, August 6, 1991. However, the statute does not foreclose a defense by presumed father that he is not child's father or the failure of petitioners to prove his paternity. Additionally, the Uniform Parentage Act does not bar an action against a putative father if brought within eighteen years of the child's birth. Section 210.828.1. We conclude the court erred in prematurely sustaining the motion to dismiss while the petition remains pending against presumed father. We reverse and remand. On remand, the court shall first consider petitioners' cause of action against presumed father. Petitioners bear the burden of establishing paternity. Paternity of putative father can be found to exist only if, and after, the court determines presumed father is not the father of child. Such a determination is not time barred.(FN2) Footnotes: FN1.The amendment of this section, effective July 15, 1993, has no application to this appeal because C.J. was five years old before that date. W.B. v. M.G. R., 955 S.W.2d 935, 937 (Mo. banc 1997). FN2.Section 210.828 allows an action to determine the existence of a father-child relationship for a child with no presumed father under section 210.822. The action cannot be brought later than eighteen years after the child's birth.

Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.