2013 COA 107
Colo. Ct. App.2013Background
- I.M. was born in 1992; mother and Russo were not married and never attempted to marry.
- On March 11, 2011, mother, as next friend, sought to establish paternity under § 19-4-105(1)(d).
- Russo argued the action was barred by the statute of limitations under § 19-4-108 because I.M. was over 18.
- Mother conceded lack of capacity to sue as next friend and proposed joining I.M. as an indispensable party under C.R.C.P. 19(a).
- The trial court granted judgment on the pleadings, holding § 19-4-108 barred the action and denying joinder.
- The court also ruled I.M. was not indispensable, and the case was time-barred for purposes of § 19-4-108; appellate fees were denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Application of § 19-4-108 to § 19-4-107(2) actions | McKenzie contends § 19-4-107(2) allows action any time. | Russo argues § 19-4-108 governs and limits timing before 18. | § 19-4-108 governs; 107(2) does not override 108 |
| Applicability of § 19-4-107(1) to this action | McKenzie argues 107(1) allows action at any time for presumed fathers. | Russo contends 107(1) does not apply because no marriage presumption here. | 107(1) inapplicable; action under 107(2) governs instead |
| Whether I.M. must be joined as an indispensable party | McKenzie seeks I.M. as indispensable party under Rule 19. | Russo argues I.M. may be left out; 19-4-108 allows his own action later. | I.M. not indispensable; his rights can be pursued separately |
Key Cases Cited
- People in Interest of R.T.L., 780 P.2d 508 (Colo. 1989) (even with 'at any time' language for some presumptions, § 19-4-108 requires timely filing)
- In re A.D., 240 P.3d 488 (Colo. App. 2010) (child may be joined; outlines standing and indispensable party notions)
- D.S.P. v. R.L.K., 677 P.2d 959 (Colo. App. 1983) (section 19-4-107(1) did not apply to presumed father under 19-4-105(1)(d))