Opinion
Feb. 29, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Ronald Cohen, Asst. County Atty., Commerce City, for appellee.
Robert E. Johnson, Denver, Robert H. Sonheim, Arvada, for respondent-appellant.
DWYER, Judge.
This is an appeal by respondent, M.H., from the paternity judgment entered against him in proceedings under the Colorado Children's Code.
On September 17, 1969, the petitioner, P.G., initiated these proceedings by filing a petition in which she alleged that respondent was the father of her then unborn child. The respondent denied paternity and demanded a jury trial which was held on October 26 and 27, 1970, after the child was born. The jury returned a verdict finding that respondent was the father of petitioner's child, and the court entered an appropriate judgment on the verdict. At a subsequent hearing, the court ordered respondent to pay $75 per month to the Adams County Welfare Department in partial reimbursement for the $177 per month allowance which the welfare department was paying petitioner. On this appeal respondent asserts that there was error in the trial and that he is entitled to a new trial.
Respondent's principal claim of error is that the child was 'exhibited' to the jury. The record reveals that at the time petitioner was testifying on direct examination, her attorney requested permission to have the child brought into the courtroom and identified by petitioner. Respondent objected, and the court overruled the objection. The child was then brought into the courtroom, and the petitioner identified the child as hers and stated that the respondent was the father of the child. The child was then taken from the courtroom.
Respondent argues that since the child was only eight and one-half months old, it was not of sufficient age to have a resemblance to any person and that it was therefore improper to 'exhibit' the child to the jury. The child was brought into the courtroom not for the purpose of showing that it resembled respondent but to prove that it existed. This was not improper.
Respondent also argues that the court improperly permitted petitioner to reopen her case after she had rested. The court allowed petitioner to present the testimony of one witness on rebuttal. Allowing petitioner to reopen the case was discretionary with the court. In the circumstances of this case, there was no abuse of discretion.
Respondent also contends that the trial court improperly commented on the evidence in the jury's presence. Respondent contends that the court should have granted a mistrial. This matter was not presented to the trial court in respondent's motion for new trial and will not be considered on appeal. Platte Valley Elevators Co. v. Gebauer, 127 Colo. 356, 256 P.2d 903.
Finally, respondent argues that the order requiring him to pay the sum of $75 per month for the support of the child was not based upon competent evidence and was not supported by the evidence. The trial court found that $177 was a minimum subsistence grant for one child. On the basis of respondent's testimony, the trial court found that respondent had the ability to pay $75 per month towards the support of his child. There was sufficient evidence to support the court's finding, and it did not abuse its discretion in entering the order.
Judgment affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.