264 P.3d 637
Colo. Ct. App.2011Background
- Mother and natural father of G.E.R. born out of wedlock; mother sought allocation of parental responsibilities (UDMA) in 2009 and child support; in June 2010 mother filed a UPA paternity petition seeking birth-related costs, costs, and attorney fees; magistrate dismissed paternity due to pending APR and no paternity issue; district court adopted the magistrate’s order, concluding election between UDMA and UPA was required and paternity had been resolved; majority vacates and remands to consider birth-related costs under UPA despite prior UDMA proceedings; appellate fees to be determined on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May the magistrate consider birth-related costs under the UPA after UDMA allocation? | Terrell could seek birth costs under UPA; no election required. | Rooks/appointed court required election between UDMA and UPA; paternity resolved in APR. | Yes; magistrate error; birth costs may be pursued under UPA. |
| Can a paternity action be joined with an existing APR action without electing between forums? | Section 19-4-109(1) allows joining for paternity and support. | Actions are mutually exclusive; election required. | Joinable; no election required. |
| Was the district court’s dismissal proper for failure to address birth-related costs after paternity was established? | Birth costs should be addressed under UPA even if paternity is uncontested. | Paternity established; no further action needed in paternity case. | Dismissal was error; remand to determine birth-related costs and fees. |
Key Cases Cited
- In re Custody of Garcia, 695 P.2d 774 (Colo. App. 1984) (UDMA costs unavailable; UPA has exclusive jurisdiction for birth costs)
- McNeece v. McNeece, 562 P.2d 767 (Colo. App. 1977) (paternity-related issues in child support context)
- State ex rel. Daniels v. Daniels, 817 P.2d 632 (Colo. App. 1991) (paternity considerations tied to support proceedings)
- In re Marriage of De La Cruz, 1254 (Colo. App. 1990) (UPA action may be joined with other court actions for support)
- In re Marriage of Burkey, 689 P.2d 726 (Colo. App. 1984) (paternity actions consolidated with dissolution actions)
- People in Interest of L.W., 756 P.2d 392 (Colo. App. 1988) (liberally construe paternity and child support provisions)