Opinion
No. 78-101
Decided January 25, 1979. Rehearing denied February 22, 1979. Certiorari denied April 23, 1979.
In action to compel support for child born during parties' marriage, respondent denied paternity asserting defense of non-access. Trial court dismissed petition, and petitioner appealed.
Reversed
1. PARENT AND CHILD — Article 7 Proceeding — Compel Support — Denial of Paternity — Non-Access Defense — Becomes — Article 6 Proceeding — Respondent — Accorded All Rights. Where there is a proceeding for support begun under Article 7 of the Children's Code within the statutory period allowed by § 19-6-101(2), C.R.S. 1973, and the respondent denies paternity and asserts the affirmative defense of non-access, the proceeding becomes one under Article 6 of the Children's Code to establish paternity and pay support, and thereafter the respondent is entitled to the full panoply of rights accorded by the Code.
Appeal from the District Court of Jefferson County, Honorable Robert K. Willison, Judge.
Nolan L. Brown, District Attorney, Patricia Muller, Deputy District Attorney, John L. Livingston, Deputy District Attorney, for petitioner-appellant.
Bettenberg, Stipech, Miller Makkai, Patrick D. Dowdle, for respondent-appellee.
In June 1977, C.S.H., the mother of S.K.H., brought an action under § 19-7-101, C.R.S. 1973, against W.L.H., her former husband, to compel him to pay child support. It is undisputed that the child was born in April 1976, during the marriage of the parties. The respondent denied the material allegations of the petition, and moved to dismiss the petition, alleging non-access at the time of conception. The trial court granted the respondent's motion. We reverse and remand for further proceedings.
The dispute between the parties revolves around the holdings in two cases. The respondent argues that the trial court correctly relied on People in the Interest of L.B., 179 Colo. 11, 498 P.2d 1157 (1972), in dismissing the mother's Article 7 support proceeding. The mother, on the other hand, asserts her right to the strong presumption of legitimacy, which was the focal point of the holding in People in the Interest of R.M. and W.M., 37 Colo. App. 209, 548 P.2d 1282 (1975), and contends that this case allows her to proceed under Article 7. We conclude that neither case is dispositive.
In L.B., the child for whom support was sought was over the age of five years. Accordingly, proceedings under Article 6 to establish paternity were barred by the five-year statute of limitations. See § 19-6-101(2), C.R.S. 1973; 1967 Perm. Supp,. C.R.S. 1963, § 22-6-1(2). The Supreme Court held that no issue other than support could be tried in an Article 7 proceeding under the Children's Code, and because an Article 6 proceeding was barred, the judgment of this court in People in the Interest of L.B., 29 Colo. App. 101, 482 P.2d 1010 (1971), directing that the petition for support be dismissed with prejudice, was affirmed.
The Supreme Court did not purport to hold, in L.B., that support may not be ordered in an Article 6 paternity proceeding. See §§ 19-6-101, 105, C.R.S. 1973. Indeed, the Court explicitly stated that "Article 7 is not the only article authorizing the court to issue support order."
In R.M. W.M., this court distinguished L.B. on the ground that W.M., having been born in wedlock, was entitled to the presumption of legitimacy. It was held that, since the respondent had neither alleged nor proved an affirmative defense of sterility or non-access, his bald denial of paternity did not overcome the presumption. Thus, the court concluded that the Article 7 proceedings for child support should not have been dismissed by the trial court. In R.M. W.M. as in L.B., the child for whom support was sought was over the age of five years, and Article 6 paternity proceedings were barred. R.M. W.M. does not hold that where an Article 6 paternity proceeding is available, an Article 7 support proceeding may be pursued.
Thus, neither L.B. or R.M. W.M. treats the precise question presented here, namely, whether the trial court must dismiss an Article 7 proceeding for support, brought within the five-year limitation period for commencing a paternity proceeding, after the respondent has denied paternity and has interposed the affirmative defense of non-access. We conclude that dismissal, under such circumstances, is neither mandated nor warranted.
Under either Article 6 or Article 7, the proceedings must be initiated by verified petition. An allegation of paternity is required in an action under Article 7 to compel a father to support his child, as it also is in a proceeding under § 19-6-102, C.R.S. 1973, to establish paternity. Given a finding of paternity, support may be as effectively ordered in an Article 6 proceeding as in an Article 7 proceeding. See § 19-6-105, C.R.S. 1973. Under the circumstances here, the two articles of the Code are entirely compatible, and the interests of judicial economy are served by treating them so.
[1] Accordingly, we hold that where, as here, a proceeding for support is commenced under Article 7 of the Children's Code, within the statutory period allowed by § 19-6-101(2), C.R.S. 1973, and the respondent denies paternity and asserts the affirmative defense of non-access, the proceeding then becomes one under Article 6 of the Children's Code, to establish paternity and to compel support. The respondent is thereafter entitled to the full panoply of rights accorded by the Code, including the right to a jury trial and to blood grouping tests, and, upon a finding of paternity, the petitioner is entitled to recover support as provided in Article 6.
The judgment is reversed and the cause is remanded to the trial court with directions to reinstate the petition and for further proceedings under the Children's Code, § 19-1-101 et seq., C.R.S. 1973, as if this action had been commenced under Article 6 thereof.
JUDGE ENOCH and JUDGE STERNBERG concur.