(600 P.2d 114)
No. 79CA0016Colorado Court of Appeals.
Decided July 5, 1979. Rehearing denied July 19, 1979. Certiorari granted September 24, 1979.
Seeking support for two children born more than five years previously, wife brought action against husband under Article 7 of Children’s Code. From finding of paternity and award of support, husband appealed.
Reversed
1. PARENT AND CHILD — Contested Paternity — Children’s Code — Article 7 — Article 6 — Proceedings — Five Year Statute of Limitations. Where paternity has not been established prior to the commencement of support proceedings under Article 7 of Children’s Code, the presumption of paternity as to children born during wedlock does not substitute for establishing paternity by an Article 6 proceeding, by written acknowledgment, or by the furnishing of support; therefore, in situation where paternity was disputed and could not be adjudicated under Article 7, and where an Article 6 proceeding was barred by the five year statute of limitations, support proceedings initiated under Article 7 should have been dismissed.
Appeal from the District Court of the City and County of Denver, Honorable Jon L. Lawritson, Judge.
Max P. Zall, City Attorney, Frank A. Elzi, Assistant City Attorney, for petitioner-appellee.
Robert C. Floyd, for respondent-appellant.
Division I.
Opinion by JUDGE VAN CISE.
This action was brought under Article 7 of the Children’s Code, § 19-7-101
et seq., C.R.S. 1973, against S.G. (the husband) for the support of two
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children, B.G. and J.G., born to A.G. (the wife) more than five years prior to the commencement of this proceeding. The husband denied paternity. After an evidentiary hearing the court concluded that S.G. was the father and entered an order for support. The husband appeals, and we reverse.
The parties were married in 1946. In December 1962, the husband left the wife. In December 1964, the child B.G. was born. In 1966, the wife obtained a decree of separation and an order restraining the husband from seeing the wife or entering her home. In June 1968, the child J.G. was born. In January 1971, the parties were divorced.
In September 1976, a petition for support was filed pursuant to Article 7 of the Children’s Code, § 19-7-101, et seq., C.R.S. 1973, alleging that the husband was the father of B.G. and J.G. and seeking support from the husband. Husband answered and denied that he fathered either of the children. Relying on People in the Interest of L.B., 179 Colo. 11, 498 P.2d 1157 (1972), he then moved to dismiss the action and for a summary judgment. Based on People in the Interest of R.M., 37 Colo. App. 209, 548 P.2d 1282 (1975), both motions were denied.
Thereafter an evidentiary hearing on the paternity issue was held before a referee. He found that the presumption of legitimacy had been overcome by the husband’s evidence, that the action had not been properly brought as an Article 6 paternity action, and recommended that the Article 7 support petition be dismissed.
The wife then requested judicial review of the referee’s findings and recommendation, and the matter was assigned to a juvenile judge. The judge concluded that under R.M. the wife could proceed under Article 7 until the husband presented clear and convincing evidence sufficient to overcome the presumption. Accordingly, he conducted a de novo evidentiary hearing. The wife testified that she and the husband had lived together on and off until 1969. The husband stated that he had not seen the wife since 1962. No blood test results were presented. The trial court resolved the credibility issue against the husband. It found that there was a marriage between the parties, that both children were conceived and born during the marriage, that there was no evidence as to impotency, and that the husband had access to the wife during the time when the children would have been conceived. It concluded that the presumption of legitimacy had not been overcome by clear and convincing evidence, that the husband was obligated to support both children, and that the matter was to proceed to determine the amount of support.
That order was appealed to this court, but the appeal was dismissed without prejudice as prematurely brought. On remand, the court ordered the husband to pay $100 per month for support of the two children. The orders are now final for purposes of appeal.
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Relying on People in the Interest of L.B., supra, the husband contends that the trial court erred in adjudicating the disputed paternity issue and in permitting this Article 7 support action to proceed as to either of the children.
In L.B., the child for whom support was sought was over the age of five years, and therefore Article 6[1] proceedings were barred by the five-year statute of limitations contained in § 19-6-101(2), C.R.S. 1973. The court in L.B. held that the exclusive method of establishing paternity is by an Article 6 paternity proceeding, and that paternity may not also be adjudicated under Article 7 as an adjunct to support proceedings. It further held that when, as here, an Article 7 support proceeding is instituted, paternity must have already been established either by an Article 6 proceeding, by written acknowledgment of paternity by the father, or by his furnishing support. Since an Article 6 proceeding was barred by the five-year statute, the Court in L.B. affirmed the dismissal of the Article 7 support petition.
People in the Interest of R.M., supra, involved an Article 7 proceeding for the support of a child over the age of five who was conceived and born, as in the instant case, during the marriage of the mother and the respondent. This court held that the child was presumed legitimate, and that the respondent’s bare denial of paternity could not deprive the mother of the right to proceed under Article 7, because such a denial does not rebut the presumption of legitimacy. The court in R.M. distinguished L.B.
on the ground that it concerned a child conceived and born out of wedlock, whereas in R.M. the child was conceived and born during the marriage of the parties and was therefore entitled to the presumption of legitimacy. R.M.
held that the wife could proceed with her Article 7 support proceedings until the husband presented proof sufficient to overcome the presumption.
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7 support proceedings, either by an Article 6 proceeding, by written acknowledgment of paternity, or by furnishing of support. Inasmuch as paternity is disputed, and may not be adjudicated under Article 7, and since an Article 6 proceeding is barred by the five year statute of limitations, the Article 7 proceedings should have been dismissed. L.B., supra.
In view of this disposition of the case, we do not address the issue of whether the presumption of legitimacy continues when the parties are separated under a court decree or during the pendency of a restraining order against the husband.
The judgment is reversed, and the cause is remanded with directions to dismiss the complaint.
JUDGE STERNBERG concurs.
JUDGE COYTE dissents.
JUDGE COYTE dissenting:
I view People in the Interest of R.M., 37 Colo. App. 209, 548 P.2d 1282, as controlling. The trial court took evidence and found that both children were the children of S.G. born in wedlock. The majority has totally disregarded the findings of the trial court. This it cannot do. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979). By failing to give credence to the findings of the trial court it has improperly illegitimized both children. I would, therefore, affirm the judgment of the trial court.