State ex rel. Department of Human Services ex rel. Bowens v. Poor
State ex rel. Department of Human Services ex rel. Bowens v. Poor
Opinion of the Court
MEMORANDUM OPINION
The Department of Human Services (DHS) appeals trial court orders dismissing paternity complaints filed on behalf of Trendon Todd Bowens, born March 23, 1980, and Tikisha May Bowens, born December 10, 1981. DHS filed the complaints against William Poor, Jr. on March 18, 1987, alleging he was the natural father of these children, and seeking a declaration of paternity and past and future child support. Ruling on Poor’s Motion to Dismiss, the trial court concluded the children’s claims were barred by 12 O.S.1981 § 95(sixth), a general provision setting a five-year statute of limitations for actions “not hereinbefore provided for”.
On appeal, DHS contends the trial court erred because: (1) Poor did not affirmatively plead the statute of limitations as a defense in his answer; (2) the applicable statute of limitations is 10 O.S.Supp.1985 § 83, which was effective October 1, 1985; and (3) a five-year statute of limitations in paternity cases is unconstitutional. Since we conclude the trial court erred in not applying 10 O.S.Supp.1985 § 83, resulting in reversal of the trial court orders, we do not address the constitutional question.
I
DHS complains that Poor never filed any pleading denominated an answer, and thus he did not properly raise a statute
II
Until ruled unconstitutional in Callison v. Callison, 687 P.2d 106 (Okla. 1984), 10 O.S.1981 § 83 was the statute of limitations applicable to paternity claims of children born out of wedlock. Under its provisions, a paternity claim was barred unless brought within three years of the birth of the child. In Callison, the Oklahoma Supreme Court held the three-year limitation to be an unconstitutional denial of equal protection to children born out of wedlock. Following the reasoning of the United States Supreme Court in Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983), our high court stated:
The imposition of a three-year period within which a paternity suit must be brought restricts the right of some illegitimate children to paternal support in a way that the identical right of legitimate children is not restricted. 687 P.2d at 109.
Poor argues Callison removed from our law any specific statute of limitations for paternity actions, and therefore they became governed by 12 O.S.1981 § OSlsixth).
In Theis, the Court ruled the adoption of a statute prohibiting the statute of limitations from barring a counterclaim or setoff until the claim of the plaintiff was so barred did not revive setoffs or counterclaims which were barred prior to the adoption of the statute. In contrast, Trinity Broadcasting Corp. v. Leeco Oil Co., 692 P.2d 1364 (Okla. 1984) treated an amendment extending the statute of limitations for securities violations from two years to three years as a procedural change which may be applied retroactively. The Court specifically held the change “serves to extend the limitations period for a cause of action not barred before the effective date of the amendment.” 692 P.2d at 1366. The distinguishing feature is that the Theis setoff was time-barred at the time the new statute was adopted. Therefore, we must conclude that unless the legislature has specifically indicated otherwise, changes in a statute of limitations do not revive claims which are already time-barred, but do extend the limitation period for claims in existence but not time-barred on the effective date of the amendment.
Applying this principle here, 10 O.S. Supp.1985 § 83 extends the limitation period for paternity claims which were not barred prior to October 1, 1985.
Trendon was born March 23, 1980, and, based upon 12 O.S.1981 § 95(sixth) alone, his claim was barred after March 23, 1985. However, 12 O.S.1981 § 96 tolls a general statute of limitations for claims of minors, giving them one year after majority in which to file. For purposes of statute of limitations, Callison treated paternity claims as claims of the child born out of wedlock. Similar treatment here leads us to conclude the general five-year limitation urged by Poor was tolled during Trendon's minority, and the limitation had not expired prior to October 1, 1985. Trendon is entitled to the extended period provided by § 83 as amended, and the trial court erred in dismissing his claim.
The claims of both children, being filed prior to their eighteenth birthday, are timely under 10 O.S.Supp.1985 § 83. The trial court’s dismissal is reversed, and the case is remanded with instructions to proceed in accordance with the views expressed.
REVERSED AND REMANDED WITH INSTRUCTIONS.
. Although the Callison majority specifically declined to consider the question, Justice Simms, dissenting, opined that 12 O.S.1981 § 95(sixth) applies to paternity claims after Callison.
. The Legislature has amended § 83 three times since 1985. See 12 O.S.Supp. 1987, 1989, and 1990. None of the amendments affect our ultimate conclusion, and the parties did not address
Reference
- Full Case Name
- STATE of Oklahoma, ex rel. DEPARTMENT OF HUMAN SERVICES, on Behalf of Charlotte BOWENS, natural mother of Takody Lane Bowens, Trendon Todd Bowens, and Tikisha May Bowens, minor children v. William Lee POOR, Jr.
- Cited By
- 7 cases
- Status
- Published