Thе PEOPLE of the State of Colorado In the Interest of R.T.L., Child-Petitioner. Upon the Petition of ARAPAHOE COUNTY DEPARTMENT OF SOCIAL SERVICES, and Concerning: R.L., Respondent.
No. 88SC28
Supreme Court of Colorado, En Banc.
Oct. 2, 1989
Rehearing Denied Oct. 23, 1989
780 P.2d 508
Lozow, Lozow and Elliott, Jon P. Lozow, and David M. Gibans, Denver, for respondent.
Justice LOHR delivered the Opinion of the Court.
We granted certiorari to review the decision of the Colorado Court of Appeals in People in the Interest of R.T.L., 756 P.2d 383 (Colo.App.1987), affirming the entry of summary judgment in a child support proceeding in favor of R.L., the presumed father of a minor child, and against the People, acting through the Arapahoe County Department of Social Services (Department). The Department initiated this action to obtain a court order that R.L. provide support for the minor child and reimburse the Department for public assistance funds previously expended for the benefit of the child. R.L. filed a motion to dismiss, or in the alternative for summary judgment, asserting that he was not the father of the child and therefore had no obligation for support. The trial court granted R.L.‘s motion for summary judgment and dismissed the Department‘s petition for support on the ground that the materials submitted in support of the motion established that R.L. was not the father and presented
I.
On December 12, 1978, the Denver District Court entered a decree dissolving the marriage of C.L. and R.L. The wife, C.L., was granted custody of the couple‘s two minor children. At the time of the dissolution of their marriage, C.L. was unaware that she was pregnant. On September 2, 1979, some 264 days after the dissolution decree was entered, C.L. gave birth to R.T.L., the child for whose benefit this case was brought. R.L. was named as the father on the child‘s birth certificate.
Sometime in late 1979, C.L. advised R.L. that she had recently given birth to a child. She further advised him that she had named the child after him but that he was not the child‘s father. On March 2, 1986, R.L. and C.L. stipulated to an amended decree of dissolution of their marriage “to indicate that [C.L.] was pregnant at the time of the entry of the Decree of Dissolution, but not with issue of the marriage between [R.L. and C.L.].” Neither R.T.L. nor the Arapahoe County Department of Social Services, the petitioner in the instant case, was joined as a party to the action in which the amended dissolution dеcree was entered.
On April 4, 1986, more than six years after R.T.L.‘s birth, the Department filed this support proceeding pursuant to Article 6 of the Colorado Children‘s Code,
The court of appeals affirmed the trial court‘s dismissal of the Department‘s action, concluding that although B.G. v. S.G. was decided under a previous version of the applicable statutory scheme, the rationale of that case still supported the outcome reached by the trial court. R.T.L., 756 P.2d at 384. The court of appeals therefоre held that the defense of nonpaternity asserted in an Article 6 support action is not barred by the Article 4 statute of limitations contained in
II.
A.
The issue before us is whether the statute of limitations found in
The Children‘s Code contains two articles of potential applicability to the issues raised in this case: Article 6, regarding proceedings for enforcement of child support obligations, and Article 4, the U.P.A., regarding the legal establishment of pаrent-child relationships. Our principal focus in the present case is upon the construction and interaction of relevant provisions of the U.P.A.
In 1977, the General Assembly adopted the U.P.A.,3 which is now found in Article 4 of the Children‘s Code,
The U.P.A. presumption of particular importance to the instant case is found in
(1) A man is presumed to be the natural father of a child if:
(a) He and the child‘s natural mother are or have been married to each other and the child is born during the marriage, within three hundred days after the marriage is terminated by death, annulment, declaration of invalidity of marriage, dissolution of marriage, or divorce, or after a decree of legal separation is entered by a court[.]
In addition to presumptions of paternity, the U.P.A. contains provisions governing who may bring actions to determine the father and child relationship and when such actions may be brought.
(1) A child, his natural mother, or a man presumed to be his father under section 19-4-105(1)(a), (1)(b), or (1)(c) or the state, the state department of social services, or a county department of social services ... may bring an action:
(a) At any time for the purpose of declaring the existence of the father and child relationship presumed under section 19-4-105(1)(a), (1)(b), or (1)(c); or
(b) For the purpose of declaring the nonexistence of the father and child relationship presumed under section 19-4-105(1)(a), (1)(b), or (1)(c) only if the action is brought within a reasonable time after obtaining knowledge of relevant facts, but in no event later than five years after the child‘s birth. After the presumption has been rebutted, paternity of the child by another man may be determined in the same action, if he has been made a party.
(Emphasis added.) Under this section, “[a]ttack on the presumptions based on marriage or on a relationship between the parents that resembles marriage is restricted to a limited circle of potential contestants and in point of time. Presumptions created in other circumstances may be attacked more freely.” Unif. Parentage Act § 6, 9B U.L.A. 302 (1987) (Commissioners’ Comment).
Although
B.
It is clear from
1.
Although we agree with R.L. that
We accepted certiorari and reversed the court of appeals. We first acknowledged that with respect to children born out of wedlock whose paternity is disputed, an Article 7 support action cannot be maintained in the absence of a prior determination of paternity under Article 6. People in the Interest of L.B., 179 Colo. 11, 498 P.2d 1157 (1972), appeal dismissed,
B.G. established that under the former statutory scheme it was unnecessary to adjudicate paternity in an Article 6 proceeding before seeking child support in an Article 7 proceeding in circumstances where a presumption of paternity exists based upon birth of the child during a marriage between the mother and the presumed father. We do not regard this holding to be dispositive of the present case. The statutory scheme at issue in B.G. preceded the adoption of the U.P.A. and cоntained no presumption of legitimacy similar to that found in the present
The rationale underlying B.G. is inapplicable in this case. Since B.G. was decided, the legislature has codified and refined the presumption of legitimacy at issue in B.G., and has set forth many other presumptions of paternity within the U.P.A. See note 4, above, and accompanying text. Under the present statutory scheme, the U.P.A. provides the procedures by which a paternity determination is to be made when paternity is disputed. In the absence of a paternity determination, no child support order can be made against a putative father pursuant to Article 6 unless paternity is uncontested. This is so bеcause before any support order can be entered under Article 6, the court must find that the person from whom support is sought is a parent or other person legally obligated to support the child. See
This is not to say that an independent action under the U.P.A. must precede an Article 6 support proceeding. Rather, in cases in which paternity is disputed, whether in an Article 4 or Article 6 proceeding, paternity must be determined according to the procedures outlined under the U.P.A. before the legal obligation for support can be imposed. Smith v. Casey, 198 Colo. 433, 435, 601 P.2d 632, 634 (1979) (when paternity issue is raised in dissolution action, court must first determine, using procedures outlined under U.P.A., whether party to be charged owes duty of support to child); see also In re Marriage of Burkey, 689 P.2d 726, 728 (Colo. App.1984) (res judicata does not apply to paternity finding in dissolution actiоn in which paternity was contested because procedures of U.P.A. were not followed in that action); 1 S. Schatkin, Disputed Paternity Proceedings, § 15.01, at 15-3 (rev. 4th ed. 1988) (“Establishment of paternity is the essential prerequisite to imposing any obligation for child support.“). Given the present statutory scheme, it can no longer be said where paternity is contested that an Article 6 support order can be entered absent a paternity determination made within the
2.
Having concluded that the U.P.A., including its five-year limitation on actions contained in
It is a well-established principle of statutory construction that statutes аre to be given effect according to their plain and ordinary meaning. Parrish v. Lamm, 758 P.2d 1356, 1368 (Colo.1988); Charnes v. Lobato, 743 P.2d 27, 30 (Colo.1987).
A construction of
The case at bar amply demonstrates how a conclusive presumption would engender inequitable results. Here, the child was born almost nine months after the parties’ marriage had been dissolved and almost two years after the parties had separated. There was no evidence that C.L. ever indicated to R.L. that he had fathered R.T.L. or that he would one day be held responsible for the child‘s support. On the contrary, C.L. told R.L. that he was not the father, made a similar denial of R.L.‘s paternity in a deposition, and voluntarily entered into a stipulatеd amended dissolution decree to disavow R.L.‘s paternity of the child. Given these actions and representations, R.L. had no reason to believe that he would have to act quickly to disavow paternity of the child or be conclusively presumed to be the child‘s father.
We conclude that an interpretation of
MULLARKEY, J., dissents.
MULLARKEY, Justice, dissenting:
I respectfully dissent.
The majority concludes that the five year statute of limitations on nonpaternity claims does not bar a presumed father from asserting nonpaternity as a defense in a child support action instituted against him more than five years after the child‘s birth. Under its analysis, the statute of limitations applies only to an action for nonpaternity brought by the presumed father. I do not find that construction consistent with the Uniform Parentage Act (U.P.A.),
Another U.P.A. state, Minnesota, emphasized this point in construing its three year nonpaternity statute of limitations as follows:
The obvious intent of the three-year statute of limitations is to make the pre-
sumption of legitimacy conclusive once a child reаches three years of age. The three-year statute of limitations is absolute in that it bars action even if the presumed father obtains knowledge of illegitimacy after the running of the statute.
Pierce v. Pierce, 374 N.W.2d 450, 452 (Minn.Ct.App.1985) (emphasis in original). In a subsequent case, the same court in Clay v. Clay, 397 N.W.2d 571, 577 n. 3 (Minn.Ct.App.1986), appeal dismissed, 484 U.S. 804, 108 S.Ct. 49, 98 L.Ed.2d 14 (1987), explained why the U.P.A. treats declarations of paternity differently from nonpaternity actions:
Public policy is served when a party has 19 years to seek adjudication of parentage, which adjudication establishes a parent/child relationship with all its attendant legal and social benefits for the child. Conversely, that same public policy is served when a party must within three years after a child‘s birth bring an action to declare non-parentage, when parentage has been presumed by law because of marriage or attempted mаrriage, and such declaration of non-parentage would deprive a child of legal and social benefits previously enjoyed.
The Clay case involved facts similar to the case now before us. Clay was the presumed father of the child T.C. because T.C. was born in 1981 while Clay was married to T.C.‘s mother. The parents were divorced in 1982 and T.C.‘s paternity was not contested in that proceeding. In 1985, Clay brought a nonpaternity action and the county brought a separate action against Clay seeking child support for T.C. The Minnesota Court of Appeals held that Clay was barred from asserting that he was not T.C.‘s father because the three year statute of limitations had run. The court concluded that “[p]ermitting a challenge to the legitimacy of a child more than three years after its birth would defeat the statutory purpose of promoting legitimacy.” Id. at 577 (footnote omitted). The court went on to uphold the constitutionality of its application of the statute of limitations.
These Minnesota cases are particularly important in analyzing the issue presented by this case because of
The substantive nature of patеrnity presumptions was addressed in a recent United States Supreme Court decision, Michael H. v. Gerald D., — U.S. —, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989). In Michael H., the petitioner sought to have himself declared to be the father of a child, Victoria. It was undisputed that Michael H. was Victoria‘s natural father and that Victoria‘s mother was married to another man at all relevant times. California has adopted the U.P.A. in modified form. Unlike Colorado, California, through § 621 of its evidence code, has made certain of the U.P.A. § 4 presumptions (e.g., the California equivalent of our
(a) Except as provided in subdivision (b), the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.
(b) Notwithstanding the provisions of subdivision (a), if the court finds that the conclusions of all the experts, аs disclosed by the evidence based upon blood tests performed pursuant to Chapter 2 (commencing with Section 890) of Division 7 are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly.
When the conclusive presumption established by § 621 does not apply, such as
Petitioner Michael H. asserted before the Supreme Court that, because § 621 made the presumed father‘s paternity “conclusive” and thereby precluded him as Victoria‘s natural father from challenging the parental status of the husband of Victoria‘s mother, his substantive and procedural due process rights were violated. The court rejected these arguments. Michael H., 109 S.Ct. at 2342. The plurаlity refused to characterize the “presumed father” status created by California law as a mere procedural device:
We believe this claim derives from a fundamental misconception of the nature of the California statute. While § 621 is phrased in terms of a presumption, that rule of evidence is the implementation of a substantive rule of law. California declares it to be, except in limited circumstances, irrelevant for paternity purposes whether a child conceived during and born into an existing marriage was begotten by someone other than the husband and had a prior relationship with him.
(Emphasis in original.) Michael H., 109 S.Ct. at 2340. The plurality found that the “conclusive presumption” in reality reflected a substantive policy choice of the state “that given a certain relationship between husband and wife, the husbаnd is to be held responsible for the child, and that the integrity of the family unit should not be impugned.” Michael H., 109 S.Ct. at 2340 (quoting Vincent B. v. Joan R., 126 Cal.App.3d 619, 623, 179 Cal.Rptr. 9, 10 (1981)). See also Michelle W. v. Ronald W., 39 Cal.3d 354, 362-63, 216 Cal.Rptr. 748, 752, 703 P.2d 88, 92 (1985) (“Thus, section 621 does not purport to factually determine the biological paternity of a child.... Here, [plaintiff‘s] private interest in establishing a biological relationship in a court of law is overridden by the substantial state interests in familial stability and the welfare of the child.“).
In my view, the Colorado U.P.A. presumptions should also be recognized as substantive rules of law adopted by the legislature, not as mere evidentiary presumptions. The section 19-4-107 five-year limitation to bring an action to assert nonpaternity reflects a legislature decision that, if the presumed father fails to bring such an action, the presumed father is precluded from challenging his legal obligations of parenthood. It is legally irrelevant after that time whether or not the presumed father is in fact the biological father.
My interpretation of the substantive purpose of
This section consists of two major parts. Subsections (a) and (b) deal with the action to declare or dispute the existence of the father and child relationship presumed under Section 4(a) [
19-4-105(1) ]. Attack on the presumptions based on marriage or on a relationship between the parents that resembles marriage is restricted to a limited circle of potential contestants and in point of time. Presumptions created in other circumstances may be attacked more freely.
(Emphasis added.)
Construing the five year statute of limitations as not applicable to a defense based on nonpaternity defeats the purposes of the U.P.A. In seeking to avoid what the majority sees as one injustice—the asserted potential for plaintiff mothers or governmental agencies to wait five years before asserting claims against presumed fathers who then are precluded from offering a defense—the majority would open the door to a far greater injustice to the child by subjecting his legitimacy to such a belated challenge. See generally, Notes, Human Leukocyte Antigen Testing: Technology Versus Policy in Cases of Disputed Parentage, 36 Vand.L.Rev. 1587, 1607 (1983) (urging a 3-year stаtute of limitations to disprove paternity in order to protect the economic and emotional interests of the child).
I note initially that the majority‘s concern that a mother or other representative of the child purposely would wait five years before bringing an action to enforce paternity obligations on an unsuspecting presumed father is speculative at best. In any case, the existing doctrine of equitable estoppel would protect against such abuses. See Strader v. Beneficial Finance Co. of Aurora, 191 Colo. 206, 551 P.2d 720, 724 (1976) (where a party by its acts or omissions contributes to the running of a statute of limitations, the doctrine of equitable estoppel will prevent its raising that defense). This respondent has presented no facts which would indicate that the doctrine is applicable. To the contrary, the facts indicate thаt he was told of the child‘s birth shortly after it occurred, that he knew he was listed as the baby‘s father on the birth certificate and that he knew he was not the natural father. Had he wished to contest the child‘s paternity, he should have done so within the five year statute of limitations. Again, these facts are similar to those in Clay where the presumed father knew he was not T.C.‘s father but failed to bring a timely action for nonpaternity because he “couldn‘t afford it” and
Like the Minnesota Court of Appeals, we too should reject this attempt to circumvent the statute of limitations. Under the holding of the majority, the passing of the statute of limitations becomes irrelevant. Years after the child is born, the presumed father will be free to ignore parental obligatiоns previously unquestioned and to await the bringing of a lawsuit by the mother where he can challenge the child‘s paternity. There would be little or no incentive for a presumed father to bear the expense of bringing a nonpaternity action if, as the majority holds, he can assert nonpaternity as a defense at any time. With this loophole, the statute of limitations on nonpaternity actions will have no real effect.
While I recognize the common law rule allowing a defendant to assert as a defense what the statute of limitations would preclude him from raising as an affirmative claim, its application is inappropriate here when it would so clearly defeat the legislative purpose of this statute. Following the reasoning of Michael H. and Clay, I would hold that the presumption of paternity becomеs a rule of law after five years have passed. The presumed father is the legal father after that time and must bear the legal obligations that follow from such status.
With respect to the respondent‘s assertion that denying him the right to raise nonpaternity as a defense in this action would violate the Equal Protection and Due Process Clauses of the state and federal constitutions, those arguments need not be considered because they were not raised at either the district court or at the court of appeals. This court will not consider constitutional issues raised for the first time on appeal. Colgan v. Dept. of Revenue, 623 P.2d 871 (Colo.1981). In any event, the challenges seem doubtful in light of the United States Supreme Court‘s decision upholding California‘s denial of any right in the natural father to challenge the presumed parental status of thе husband of the child‘s mother. Michael H., 109 S.Ct. at 2340. See also Clay, 397 N.W.2d at 576-77 (upholding, on due process grounds, constitutionality of U.P.A. nonpaternity statute of limitations as applied).
For these reasons, I dissent.
LOHR, J.
JUSTICE OF THE SUPREME COURT OF COLORADO