264 P.3d 637
Colo. Ct. App.2011Background
- Mother and father are natural parents of child G.E.R. born out of wedlock.
- November 2009: mother filed for allocation of parental responsibilities (UDMA) and sought child support.
- June 2010: mother moved to modify support and filed a petition for paternity under the UPA for birth-related costs, court costs, and attorney fees.
- Magistrate dismissed the paternity petition, citing prior establishment of paternity in the APR and distinguishing UDMA from UPA remedies.
- District court adopted the magistrate’s order, holding mother must elect between UDMA and UPA actions and that paternity had been resolved.
- This appeal argues the UPA action could proceed alongside UDMA to obtain birth-related costs; the court remands.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May UPA birth-cost claims be brought after UDMA APR action? | Rooks can pursue UPA for birth costs despite UDMA action. | Terrell must choose between UDMA or UPA remedies; paternity resolved. | Remand to determine birth costs under UPA; not barred by prior APR. |
| Can UPA and UDMA actions be joined without election? | Actions could be joined under §19-4-109(1). | Mother elected APR action; joining not permitted. | Actions may be joined; no election required. |
| Whether birth-related costs may be awarded under UPA when paternity is established in UDMA | Birth costs can be awarded under UPA irrespective of prior establishment. | Once paternity is established in APR, no further birth-cost award. | Magistrate erred; court should consider birth-related costs under UPA on remand. |
| Entitlement to appellate attorney fees on remand | Fees should be awarded under §19-4-117. | Fees to be determined anew on remand. | Court to determine appropriate appellate fees and costs on remand. |
Key Cases Cited
- In re Custody of Garcia, 695 P.2d 774 (Colo.App.1984) (UDMA cannot award birth costs; exclusive UPA jurisdiction for such costs)
- McNeece v. McNeece, 39 Colo.App. 160, 562 P.2d 767 (Colo.App.1977) (paternity/child-support contexts imply related issues may arise)
- State ex rel. Daniels v. Daniels, 817 P.2d 632 (Colo.App.1991) (paternity-related actions and support linkage)
- In re Marriage of De La Cruz, 791 P.2d 1254 (Colo.App.1990) (§19-4-109(1) allows joining UPA with actions in other courts)
- In re Marriage of Burkey, 689 P.2d 726 (Colo.App.1984) (paternity actions may be consolidated with other proceedings)
- People in Interest of L.W., 756 P.2d 392 (Colo.App.1988) (liberally construe paternity vs. child-support remedies)