Summary
finding that "a final judgment was entered, ordering defendant to pay $35 per month child support"
Summary of this case from Nakauchi v. CowartOpinion
No. 76-181
Decided March 24, 1977.
In action under Uniform Reciprocal Enforcement of Support Act, trial court ordered plaintiff's ex-husband to pay child support for minor child that had been treated as his child during previous divorce proceedings. Defendant appealed.
Affirmed
1. PARENT AND CHILD — Divorce Action — Parentage — Impliedly Determined — Res Judicata — Between Spouses. The parentage of a child is not an issue necessarily decided in a divorce or annulment action; however, where, as part of a divorce action, the court hears evidence, makes a child support order, and, by necessary implication has determined the paternity of a child, this determination is res judicata, at least as between the spouses.
2. DIVORCE — Paternity of Child — Alleged in Complaint — Custody Granted — Support Order Entered — Issue Decided — Between Spouses. Where, in divorce action, the complaint admittedly alleged that one child had been born as a result of the marriage between the parties, and, in the divorce decree, the trial court granted custody of that child to the plaintiff and also ordered that defendant pay plaintiff monthly child support, the issue of paternity was raised at the time of original divorce action and, as between the spouses, the issue of paternity was then decided.
3. PARENT AND CHILD — Divorce Action — Issue of Child's Parentage — Not Binding — On Child — As Between Spouses — Res Judicata. Although child was not named as a party in divorce action and a guardian ad litem was not appointed for the child in that action, nevertheless, while the child could not be bound by a decision in the divorce action to which he was not a party, as between the spouses to that action, the issue of the child's parentage is res judicata.
4. APPEAL AND ERROR — Issue — Identity of Plaintiff — Not Raised at Trial — — Not Considered — On Appeal. Since allegation that plaintiff in child support proceeding was not shown to be identical to the plaintiff in the original divorce action was not an issue raised in the trial court, it will not be considered on review.
5. PLEADING — Child Support Proceeding — Affirmative Defense Asserted — Non-Paternity — No Counterclaim — Failure to Respond — Denial of Allegation — Res Judicata — Not Waived. Where defendant in child support proceeding asserted the affirmative defense of non-paternity in his answer, but asserted no counterclaim as part of that answer, plaintiff was not obliged to respond to defendant's answer, and under such circumstances, the failure to respond means that defendant's allegation of non-paternity was to be taken as denied or avoided; hence, plaintiff did not waive her defense of res judicata as to the non-paternity issue.
6. PRACTICE AND PROCEDURE — Failure to Assert — Paternity Issue — Res Judicata — Hearing on Blood Tests — Asserted Before Final Ruling — Timely — Not Waived. Where, in child support proceedings, on issue of non-paternity, the plaintiff failed to assert, at a hearing on defendant's motion for blood-grouping tests, that plaintiff's paternity of the child had been established during previous divorce proceedings and that the matter was therefore res judicata, but subsequently did assert that issue before a final ruling of the court on that matter had been made, the plaintiff's raising of this point of law was timely, and the issue of res judicata was not waived by plaintiff.
7. JUDGMENT — Alter or Amend — Appropriate Motion — Challenge to Paternity — Five Years After Divorce — Not Permitted — Rules of Procedure. Once a valid judgment is entered, the court may thereafter alter, amend, or vacate such a judgment by appropriate motion under C.R.C.P. 59 or 60, but where, defendant did not seek to reopen divorce proceedings until approximately five years after entry of judgment, none of the grounds listed in those rules was available to defendant to justify reopening of divorce proceedings to litigate the issue of paternity of the parties' child.
8. Relief Sought — Fraud Basis — Six-Month Limit — Applicable — Exception — Defeat Jurisdiction. Where party seeks motion for relief from judgment on the basis of fraud under C.R.C.P. 60, unless the fraud alleged is such as to defeat the jurisdiction of the court, defendant is subject to the six-month limit for the filing of such a motion as stated in the rule.
9. Set Aside — Independent Action — Any Time — Challenge to Paternity — — Five Years After Divorce — Equitable Relief — Properly Denied. While an independent equitable action may be brought at any time to set aside a judgment, defendant's motion seeking to reopen divorce proceedings for the purpose of challenging paternity of the parties' child was not such an action, and considering the fact that defendant became aware of the paternity issue within days of the original judgment, but waited over five years to raise the issue, it was well within the court's discretion to deny him equitable relief.
10. TRIAL — Ruling on Paternity — Equivalent — Partial Summary Judgment — Findings and Conclusions — Required — Motion to Reopen Divorce — No Findings Required. Trial court's ruling in child support proceedings that the issue of paternity could not be raised in those proceedings because it had been previously litigated was based on undisputed facts, and was tantamount to a partial judgment on the pleadings, or a partial summary judgment, and as such, findings of fact and conclusions of law were required; in contrast, defendant's motion to reopen the divorce decree was not a motion pursuant to C.R.C.P. 41(b), and therefore no findings of fact and conclusions of law were required to accompany the ruling on this motion.
Appeal from the District Court of the County of Weld, Honorable Donald A. Carpenter, Judge.
Robert N. Miller, District Attorney, William G. Pharo, Deputy District Attorney, Stanley C. Peek, Assistant District Attorney, for plaintiff-appellee.
Zane M. Pic, for defendant-appellant.
Defendant, Jackie McNeece, appeals a judgment entered pursuant to the Uniform Reciprocal Enforcement of Support Act, § 14-5-101, et seq., C.R.S. 1973, ordering him to pay child support. We affirm.
On February 9, 1970, a decree granting Lee Ann McNeece a divorce from defendant was entered by default in the District Court of Weld County, Colorado. Defendant was also ordered to pay support for their minor child, Justin J. McNeece.
In 1975 plaintiff initiated through the office of the Maricopa County Attorney, Phoenix, Arizona, an action docketed in the Weld County District Court for enforcement of the child support order under the terms of the Act. In answer to the complaint filed, defendant alleged the affirmative defense of non-paternity, see § 14-5-128, C.R.S. 1973, and presented affidavits purporting to show that two days after entry of the divorce decree, plaintiff had admitted that defendant was not the father of Justin McNeece. The court held that the issue of paternity had been decided in the original divorce action, and defendant was therefore barred by either the doctrine of res judicata or estoppel of judgments from raising the issue in the present proceeding. The court also refused to reopen the original divorce proceeding to allow re-litigation of the paternity issue.
Defendant appealed these rulings; however, we found that no final judgment had been entered and remanded the cause for further proceedings. Subsequently, a final judgment was entered, ordering defendant to pay $35 per month child support. Pursuant to our remand the cause has now been recertified to this court for determination of the issues.
Defendant claims that he is not barred by either res judicata or estoppel of judgments from raising the issue of paternity as a defense in the support action. We disagree.
[1] The parentage of a child is not an issue necessarily decided in a divorce or annulment action. See Devereaux v. Devereaux, 144 Colo. 31, 354 P.2d 1015. However, where, as a part of a divorce action, the court hears evidence, makes a child support order, and by necessary implication has determined the paternity of the child, this determination is res judicata at least between the spouses. Peercy v. Peercy, 154 Colo. 575, 392 P.2d 609. The question is whether the issue of paternity was raised and decided in the original divorce action. We hold that it was.
The record does not contain the complaint in the divorce action, but by defendant's own admission in his brief, the complaint alleged that "one child had been born as a result of said marriage, to wit: Justin J. McNeece, born September 26, 1969." In its divorce decree, the trial court ordered that "the sole care, custody, and control of the minor child, Justin J. McNeece . . . be awarded to the plaintiff, subject to reasonable visitation by the defendant." The court also ordered that defendant pay to plaintiff $50 per month for "child support."
[2] From these facts, we conclude that the issue of paternity was raised at the time of the original divorce action, and that as between the spouses, the issue of paternity was decided. Defendant's denial of paternity should have been made at the time of the original divorce action, and he is bound by that determination in the present action. See Peercy v. Peercy, supra.
Defendant attempts to distinguish Peercy from the present case on the basis that the defendant in Peercy had tacitly acknowledged paternity by entering into a written custody and support agreement which was incorporated in the divorce decree, and that Peercy was a contempt proceeding rather than an action for enforcement of a support decree. We find these distinctions immaterial. Although there was no written agreement here, the issue of paternity was necessarily raised and decided. Once decided, the issue was res judicata in any subsequent action between the spouses, see Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396, without regard to the specific nature of the second action.
[3] Citing Graham v. Graham, 38 Colo. 453, 88 P. 852, and Devereaux v. Devereaux, supra, defendant contends that the paternity of the child could not have been determined since the child was not named as a party in the original action and a guardian ad litem was not appointed. While the child could not be bound by a decision in an action to which he was not a party, nevertheless, as between spouses to the action, the issue is res judicata. See Peercy, supra.
[4] Defendant also argues that there was an insufficient showing of the identity of the parties in the two actions to make the doctrine of res judicata applicable. Specifically, he asserts that there was no showing that Lee Ann Jinx McNeece, named as plaintiff in the support proceeding, is the same person as Jinx L. McNeece, the named plaintiff in the original divorce action. This issue was not raised in the trial court, however, and we decline to consider it on review. In re the Petition of Karkanen v. Valdesuso, 33 Colo. App. 47, 515 P.2d 128.
[5] Defendant next argues that plaintiff waived the defense of res judicata by failing to plead it affirmatively in response to defendant's answer in which defendant asserted the affirmative defense of non-paternity. Inasmuch as defendant asserted no counterclaim as a part of his answer to plaintiff's complaint, plaintiff was not obliged to respond to defendant's answer. Therefore, since a reply to an affirmative defense is merely permissive, C.R.C.P. 7(a), the failure to respond means that defendant's averment is to be taken as denied or avoided. C.R.C.P. 8(d); Davis v. Bonebrake, 135 Colo. 506, 313 P.2d 982.
[6] Defendant further contends that the issue of res judicata was waived when plaintiff failed to raise it at a hearing on April 2, 1975, on defendant's motion for blood-grouping tests. After that hearing, the court ordered the action stayed, and ordered the cause certified back to Arizona from a deposition by plaintiff and for blood-grouping tests on plaintiff and the child. At the instance of plaintiff's Arizona attorney, plaintiff's Colorado attorney then raised the issue of res judicata. The court ruled in favor of plaintiff on this issue on October 1, 1975. In view of the fact that the court had not yet considered any additional evidence of paternity as a result of the April 2 order, and since further steps beyond that order had not been taken, plaintiff's raising of this point of law was timely, and the issue of res judicata was not waived by plaintiff. In ruling for plaintiff, the court was merely correcting an erroneous interlocutory ruling of law prior to entry of judgment.
Defendant next argues that because of his showing of newly-discovered evidence, the court erred in refusing to reopen the divorce proceeding to litigate the issue of paternity. We do not agree.
[7] Once a valid judgment is entered, the court may thereafter alter, amend or vacate such judgment by appropriate motion under C.R.C.P. 59 or 60. Cortvriendt v. Cortvriendt, 146 Colo. 387, 361 P.2d 767. But, a motion for new trial on the grounds of newly-discovered evidence must be made within six months after entry of the judgment. C.R.C.P. 59(b). Similarly, a motion for relief from judgment on the grounds of mistake, inadvertence, surprise, excusable neglect, or fraud (intrinsic or extrinsic), must be made within six months of the entry of the judgment. C.R.C.P. 60(b). Here, defendant did not seek to reopen the divorce proceeding until approximately five years after entry of judgment. Therefore, none of the above grounds are available to defendant to reopen the divorce proceeding.
[8] Defendant alleges there was fraud, extrinsic to the record, perpetrated by plaintiff. However, unless the fraud alleged is such as to defeat the jurisdiction of the court, defendant is subject to the six-month limitation of C.R.C.P. 60(b). See In re Estate of Bonfils, 190 Colo. 70, 543 P.2d 701.
[9] While an independent equitable action may be brought at any time to set aside a judgment, Dudley v. Keller, 33 Colo. App. 320, 521 P.2d 175, defendant's motion here was not such an action. Furthermore, considering the fact that defendant became aware of the paternity issue within days of the original judgment, but waited over five years to raise the issue, it was well within the court's discretion to deny him equitable relief. See Duncan v. Colorado Investment Realty Co., 116 Colo. 12, 178 P.2d 428.
[10] Also, there is no merit to defendant's contention that the judgment in the support action is without effect because the court did not make specific findings of fact and conclusions of law. While such findings generally are required for a judgment entered after a trial to the court, they are unnecessary for decisions on motions under C.R.C.P. 12 or 56, or any other motion except as provided in C.R.C.P. 41(b). C.R.C.P. 52(a). The court's ruling that the issue of paternity could not be raised in the support proceeding because it had been previously litigated was based on undisputed facts, and was tantamount to a partial judgment on the pleadings, C.R.C.P. 12(c), or a partial summary judgment, C.R.C.P. 56. As such, no findings of fact and conclusions of law were required. Similarly, the defendant's motion to reopen the divorce decree was not a motion pursuant to C.R.C.P. 41(b), and therefore no findings of fact and conclusions of law were required to accompany the ruling on this motion.
Judgment affirmed.
JUDGE COYTE and JUDGE STERNBERG concur.