In Re People in Interest of LB

498 P.2d 1157, 179 Colo. 11
CourtSupreme Court of Colorado
DecidedJune 19, 1972
DocketC-75
StatusPublished
Cited by24 cases

This text of 498 P.2d 1157 (In Re People in Interest of LB) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re People in Interest of LB, 498 P.2d 1157, 179 Colo. 11 (Colo. 1972).

Opinions

[14]*14MR. JUSTICE KELLEY

delivered the opinion of the Court.

In its Petition for Writ of Certiorari the petitioner alleged that the Court of Appeals in its opinion, 29 Colo. App. 101, 482 P.2d 1010, had (1) decided a question of substance in a way probably not in accord with applicable decisions of this court, and further, that the Court of Appeals had (2) interpreted the Children’s Code in a manner which results in the denial of equal protection of the law to illegitimate children, in violation of the constitution, citing Munn v. Munn, 168 Colo. 76, 450 P.2d 68. We granted certiorari.

The resolution of both issues involves the construction of two articles of the Children’s Code, namely 1967 Perm. Supp., C.R.S. 1963, 22-6-1, et seq. (“Paternity Proceedings”) and 1967 Perm. Supp., C.R.S. 1963, 22-7-1, et seq. (“Support Proceedings”), referred to herein respectively _as Article 6 and Article 7. The question is whether the Court of Appeals was correct when it held that the exclusive means of adjudicating contested paternity is under Article 6, or whether the issue of paternity may be adjudicated also under Article 7, as an adjunct of support proceedings. Our examination of the Children’s Code and the authorities cited by the petitioner in support of its position lead us to the conclusion that the Court of Appeals correctly decided the issues.

A brief statement of the facts is necessary to a discussion of the applicable law. In January, 1967, a “Petition in Contributing to Dependency” was filed by the petitioner against the respondent under a previous statute. In that petition respondent was alleged to be the father of petitioner’s two children, aged 8 and 9 years. Service of process was quashed August, 1967, and the petitioner filed an amended petition under the present Article 6. The Juvenile Court dismissed the amended petition on the basis of 22-6-1(2), a limitation statute which reads:

“No proceeding under this article shall be initiated after the child is five years old, unless paternity has been acknowl[15]*15edged by the father in writing or by furnishing support.”

In May, 1968, a new “Petition in Support Proceedings” under Article 7 was filed. Respondent answered that contested paternity could not be adjudicated under Article 7 and demanded a jury trial. The Juvenile Court denied the request for a jury trial, proceeded to hear the evidence in support of the petition, determined that the respondent was the father of petitioner’s children, and entered an order for their support. As indicated above, the Court of Appeals reversed.

As noted by the Court of Appeals, the adoption of the Children’s Code followed an in-depth study by the Colorado Legislative Council (Research Publication No. Ill, December, 1966). The text of the report indicates that it was the intention of the General Assembly that Articles 6 and 7 were to perform separate and distinct functions. The title of Article 6 is “Paternity Proceedings.” The title of Article 7 is “Support Proceedings.” The text of the report states that the purpose of a paternity proceeding is to establish accurately the identity of the father of a child. It states that “it is not intended to be a general support statute.” The text in reference to Article 7 indicates that it is designed to be a simple proceeding to require parents to support their children. As we read 22-7-1(1), the inclusion of fathers of illegitimate children presupposes the prior establishment of the filial relationship. It is a general statute to compel support by any “legally responsible person.” The comment in the Legislative Council report on 22-6-1(2) is significant. It reads:

“Subsection (2) limits action to establish identity of the father to within three years after the birth of the child, [amended to five years] If identity has been voluntarily established previously, an order of support may be issued under this article after the three year limitation, [amended to five years] Present limit is one year, with no provision for subsequent orders of support. Argument is offered that paternity proceedings should be possible until the child is eighteen as a means of protecting the child’s right to support. Arguments against a long statute of limitations on paternity [16]*16rest on the increasing difficulty of proving paternity or nonpaternity with the passage of time.”

Although this court in Ortega v. Portales, 134 Colo. 537, 307 P.2d 193, held that there was a continuing liability upon the father of a legitimate or illegitimate child to provide support and that the failure on the part of any person to act within a period of limitation could not deprive an infant of its right to continuing parental care and support, we have concluded that that decision is no longer applicable since the enactment of the Children’s Code. It is clear from the above quoted comment as to 22-6-1(2) that the General Assembly intended to place a time limit within which proceedings could be brought to determine paternity where the putative father contests the mother’s allegation of paternity. It should be noted that the predecessor statute (C.R.S. ‘53, 22-6-1) restricted the right to file a complaint against the putative father exclusively to the mother, whereas the Children’s Code (1967 Perm. Supp., C.R.S. 1963, 22-6-1) grants the right “to establish the paternity of a child and to compel support under this article [to] the mother. . ., the child’s guardian of the person, or, if the mother or the child is a public charge, [to] the county department of welfare.”

We also note that in Ortega the Juvenile Court held that the claim was barred by the general three-year statute of limitations. No mention was made of the one-year limitation in Article 6. This court in determining whether the statute of limitations barred the prosecution of the act relied on the then existing statute relating to dependent and neglected children which imposed a continuing liability upon the father of a legitimate or illegitimate child to provide support until the child attained the age of 18 years. What conclusion the court might have come to had the one-year statute of limitations in C.R.S. ‘53, 22-6-6 been raised is not clear, but we assume that it would have relied on Wamsley v. People, 64 Colo. 521, 173 P. 425. In that case this court held that although a prosecution under one statute is barred because not brought in time, an action could be maintained under another statute for failure to support the illegitimate child. [17]*17Neither Ortega nor Wamsley indicates that the statute of limitations with which they were dealing was the one within the same article in which the right being pursued was created. This, in our opinion, has some significance in our disposition of this issue.

In the statutory scheme adopted in the Children’s Code it is abundantly clear that the General Assembly intended Article 6 as the only vehicle for establishing paternity. For instance, 22-l-6(4)(a)(i) and (iii) grant the right to trial by jury in paternity proceedings under Article 6; this is not available to the putative father under Article 7. Also, under Section 4 of Article 6(22-6-4), upon the motion of the father, blood grouping tests may be ordered by the court and received in evidence, as provided in 1967 Perm. Supp., C.R.S. 1963, 52-1-27; this is not permissible under Article 7.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People Ex Rel. R.L.H.
942 P.2d 1386 (Colorado Court of Appeals, 1997)
People v. Wiedemer
852 P.2d 424 (Supreme Court of Colorado, 1993)
People in Interest of RTL
780 P.2d 508 (Supreme Court of Colorado, 1989)
People Ex Rel. S.L.H. v. J.M.H.
736 P.2d 1226 (Colorado Court of Appeals, 1986)
Pickett v. Brown
638 S.W.2d 369 (Tennessee Supreme Court, 1982)
McFetridge v. Chiado
323 N.W.2d 470 (Michigan Court of Appeals, 1982)
R.Mcg. v. J.W.
615 P.2d 666 (Supreme Court of Colorado, 1980)
Ag v. Sg
609 P.2d 121 (Supreme Court of Colorado, 1980)
B. G. v. S. G.
609 P.2d 121 (Supreme Court of Colorado, 1980)
B.G. v. S.G.
609 P.2d 121 (Supreme Court of Colorado, 1980)
Jefferson County Department of Social Services v. D.A.G.
607 P.2d 1004 (Supreme Court of Colorado, 1980)
Dzm v. Dag
592 P.2d 1 (Colorado Court of Appeals, 1979)
Texas Department of Human Resources v. Chapman
570 S.W.2d 46 (Court of Appeals of Texas, 1978)
State Ex Rel. Krupke v. Witkowski
256 N.W.2d 216 (Supreme Court of Iowa, 1977)
People in the Interest of AAT
554 P.2d 302 (Supreme Court of Colorado, 1976)
Cessna v. Montgomery
344 N.E.2d 447 (Illinois Supreme Court, 1976)
People in Interest of Rm & Wm
548 P.2d 1282 (Colorado Court of Appeals, 1975)
In Re People in Interest of LB
498 P.2d 1157 (Supreme Court of Colorado, 1972)

Cite This Page — Counsel Stack

Bluebook (online)
498 P.2d 1157, 179 Colo. 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-people-in-interest-of-lb-colo-1972.