Opinion
No. 88SC28
Decided October 2, 1989. Rehearing Denied October 23, 1989.
Certiorari to the Colorado Court of Appeals
Robert R. Gallagher, Jr., District Attorney, Catherine P. Adkisson, Chief Deputy District Attorney, for Petitioner.
Lozow, Lozow and Elliott, Jon P. Lozow, David M. Gibans, for Respondent.
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 no genuine issue of material fact on that question. The court of appeals affirmed, and the Department petitioned this court for certiorari review. We now affirm the judgment of the court of appeals, although for reasons other than those set forth in the court of appeals' opinion.
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 decree 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, §§ 19-6-101 to -106, 8B C.R.S. (1988 Supp.), against R.L. in the Arapahoe County District Court. The petition sought recovery of child support in reimbursement for public assistance funds the Department had paid from March 1980 to February 1986 to benefit R.T.L. R.L. responded by moving for dismissal of the action or alternatively for summary judgment on the ground that he was not the biological father of R.T.L. and therefore owed no duty to contribute to the child's support. In support of his motion, R.L. filed three documents. These consisted of an affidavit in which he stated that he had not had sexual relations with C.L. since the parties separated in September or October of 1977; a partial transcript of a deposition of C.L. taken in June of 1985 in which she stated that R.L. was not the father of R.T.L.; and a copy of the amended dissolution decree issued by the Denver District Court stating that R.L. was not the father of R.T.L. In its response to R.L.'s motion, the Department argued that R.L.'s defense of nonpaternity was barred by the five-year statute of limitations contained in section 19-4-107(1)(b), 8B C.R.S.(1988 Supp.). The trial court granted R.L.'s motion, reasoning that the issue of whether R.L., as R.T.L.'s presumptive father, could deny paternity in an Article 6 support action had been resolved in the case of B.G. v. S.G., 199 Colo. 403, 609 P.2d 121 (1980).
At the time this action was initiated, the pertinent statutory provisions were found in Articles 6 (Uniform Parentage Act) and 7 (Support Proceedings) of the Colorado Children's Code, §§ 19-1-101 to 19-11-110, 8 C.R.S.(1978). In 1987, Article 6 was repealed and reenacted as Article 4 of the Colorado Children's Code. Ch. 138, sec. 1, §§ 19-4-101 to -127, 1987 Colo. Sess. Laws 695, 793-800. By the same legislative bill, Article 7 was repealed and reenacted as Article 6 of the Code. Ch. 138, sec. 1, §§ 19-6-101 to -105, 1987 Colo. Sess. Laws 695, 811-12. For purposes of resolving this controversy, the substance of the provisions contained in the most recent versions of Articles 4 and 6 are the same as the versions in effect when this action began. Consequently, we refer throughout this opinion to the most recent versions of Articles 4 and 6 (formerly Articles 6 and 7), which are found in the Colorado Children's Code, §§ 19-1-101 to 19-6-106, 8B C.R.S. (1988 Supp.).
The parties state that in 1985 the Department filed a paternity action in the Arapahoe County District Court on behalf of R.T.L. and against R.L. and two other named respondents. The district court apparently dismissed this action with prejudice as to all three respondents. However, no record of this proceeding was ever transmitted to this court. We therefore cannot determine what effect, if any, the Arapahoe County proceeding had on the instant action.
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 therefore 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 section 19-4-107(1)(b), 8B C.R.S. (1988 Supp.). Id. We granted certiorari to review this conclusion.
II. A.
The issue before us is whether the statute of limitations found in section 19-4-107(1)(b), of the Uniform Parentage Act (U.P.A.), §§ 19-4-101 to -129, 8B C.R.S. (1988 Supp.), precludes a presumed father from asserting nonpaternity as a defense in a child support proceeding brought under Article 6 of the Colorado Children's Code (Children's Code), §§ 19-6-101 to -106, 8B C.R.S. (1988 Supp.), more than five years after the birth of the child. A review of the statutory framework governing paternity and support actions will provide the background necessary for an understanding of this issue.
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 parent-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., which is now found in Article 4 of the Children's Code, §§ 19-4-101 to -129, 8B C.R.S. (1988 Supp.). The U.P.A. was designed to provide "substantive legal equality for all children regardless of the marital status of their parents" and to identify "the person against whom [the children's] rights may be asserted." Unif. Parentage Act, 9B U.L.A. 289 (1987) (Commissioners' Prefatory Note). In order to identify the father of a child whose paternity has not been established, the U.P.A. "sets up a network of presumptions which cover cases in which proof of external circumstances (in the simplest case, marriage between the mother and a man) indicate a particular man to be the probable father." Id. These statutory presumptions find their source in the common and statutory law existing at the time the U.P.A. was promulgated, and "[a]ll . . . are rebuttable in appropriate circumstances." Id.
Ch. 245, sec. 1, §§ 19-6-101 to -129, 1977 Colo. Sess. Law. 1010, 1010-18.
The U.P.A. presumption of particular importance to the instant case is found in section 19-4-105(1)(a). That section provides:
"(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[.]"
§ 19-4-105(1)(a). Any presumption of paternity established under section 19-4-105 may be rebutted in an appropriate action by clear and convincing evidence or by a court decree establishing paternity of the child by another man. § 19-4-105(2).
A man is also presumed to be the natural father of a child if 1) the child was born after he and the child's mother attempted to marry in apparent compliance with the law, § 19-4-105(1)(b); 2) the child was born before he and the child's mother have married or attempted to marry in apparent compliance with the law and he has filed an acknowledgment of his paternity with the appropriate authority or is named as the child's father on the birth certificate with his consent, § 19-4-105(1)(c)(I) (II); 3) the child was born before he and the child's mother have married or attempted to marry in apparent compliance with the law and he is obligated to support the child under either a written voluntary promise or by court order, § 19-4-105(1)(c)(III); 4) he received the child into his home and openly held the child out as his natural child while the child was a minor, § 19-4-105(1)(d); 5) he filed a written acknowledgment of his paternity of the child with the appropriate authority and the mother did not dispute the acknowledgment within a reasonable time, § 19-4-105(1)(e); 6) as the result of properly administered blood tests he is shown with ninety-seven percent probability or higher to be the probable father, § 19-4-105(1)(f). In summarizing these statutory presumptions, some detail and certain qualifications have been omitted.
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. Section 19-4-107(1) provides:
"(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 section 19-4-107(1)(a) states that an action 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) may be brought at any time, section 19-4-108 makes clear that such an action initiated by the mother or father of a child or the "delegate child support enforcement agency" must be brought before the child's eighteenth birthday. If a child whose paternity has not been established initiates an action to declare the existence of the father and child relationship, the action may be brought at any time prior to the child's twenty-first birthday. § 19-4-108.
B.
It is clear from sections 19-4-105(1)(a) and 19-4-107(1)(b) that a man presumed to be a child's father by reason of his marriage to the child's mother at the time of conception is precluded from initiating an action to declare the nonexistence of the presumed father and child relationship after the child reaches the age of five. See People in the Interest of S.L.H., 736 P.2d 1226 (Colo.App. 1986) (notwithstanding a mother's acknowledgment that her ex-husband is not the child's father, an ex-husband is barred from seeking declaration of nonpaternity when child is over five years old). However, the Department urges us to take the time limitation contained in section 19-4-107(1)(b) one step further. The Department contends that "the legislative intent behind the U.P.A. and the best interests of the child" further preclude a presumed father from asserting his nonpaternity as a defense in a paternity or support action brought against him after the child's fifth birthday. R.L. opposes the Department's proposed construction of section 19-4-107(1)(b) on two grounds. First, he argues that by its terms, section 19-4-107(1)(b) applies only to actions brought to establish nonpaternity and not to the raising of the defense of nonpaternity in support actions. Therefore, he argues, under settled principles of statutory construction, section 19-4-107(1)(b) is inapplicable to the instant case. R.L.'s second argument, adopted by the court of appeals, is that the holding in B.G. v. S.G., 199 Colo. 403, 609 P.2d 121 (1980), controls the outcome in this case.
R.L. also contends that if § 19-4-107(1)(b) is construed to preclude his right to assert the defense of nonpaternity in this action, that section violates the equal protection clauses of the United States and Colorado Constitutions, and the due process clauses of the United States and Colorado Constitutions. Because we resolve the issue presented here in favor of R.L. on statutory construction grounds, we need not address these other arguments.
1.
Although we agree with R.L. that section 19-4-107(1)(b) by its terms does not preclude the assertion of nonpaternity as a defense to a support action brought more than five years after the child's birth, we do not regard B.G. v. S.G. as mandating this result. In B.G., the mother of two children born in wedlock brought a support action under what was at that time Article 7 of the Children's Code, §§ 19-7-101 to -104, 8 C.R.S.(1973), against the man to whom she was married when the children were born. The ex-husband denied paternity. The issue in the case was whether an action for support of a child who is born in wedlock and whose paternity is disputed could be maintained under Article 7 of the Children's Code in the absence of a prior determination of paternity under what was then Article 6 of the Code, §§ 19-6-101 to -107, 8 C.R.S. (1973). The issue was crucial because the children for whom support was sought were over five years of age and at that time, absent special circumstances, an Article 6 paternity action could not be initiated after the child's fifth birthday. § 19-6-101(2), 8 C.R.S. (1973). The juvenile court found for the mother and ordered that the ex-husband pay child support. The court of appeals in an unreported opinion reversed, reasoning that the mother could not maintain an Article 7 support action without first seeking a determination of paternity pursuant to Article 6.
Article 7 was the statutory predecessor to the current Article 6. See note 1, above.
Article 6 was the pre-U.P.A. statutory scheme governing paternity proceedings.
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, 410 U.S. 976 (1973). However, we concluded that a child born in wedlock has the benefit of a strong presumption of legitimacy upon which he should reasonably be able to rely in an Article 7 support proceeding, even absent a prior Article 6 determination of paternity. Thus, the Article 6 time limitation contained in section 19-6-101(2), 8 C.R.S.(1973), was inapplicable to and did not bar the mother's Article 7 support action. We also noted that the presumed father in an Article 7 support proceeding must be permitted to deny an obligation to support the child by denying paternity and that the paternity issue must be resolved in the support proceeding.
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 contained no presumption of legitimacy similar to that found in the present section 19-4-105(1)(a). Rather, the presumption we applied in B.G. had its source and definition in the common law. B.G., 199 Colo. at 406-07, 609 P.2d at 123. By applying the common-law presumption, a paternity determination could be made within the confines of an Article 7 support proceeding without resort to the statutory provisions of Article 6.
In addition, the five-year limitation in the paternity statutes under consideration in B.G. applied only to proceedings to establish paternity, for the Article 6 paternity statutes then in effect contained no provisions for proceedings to declare the nonexistence of a presumed father and child relationship. Therefore, there was no basis for an argument such as the one advanced by the People in the instant case that an inference can be drawn from a statutory limitation on the time within which an action to declare the nonexistence of a presumed father and child relationship may be brought that a nonpaternity defense to a support action can be asserted only within that same limited time.
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 because 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 § 19-6-101(1) and 104(1), 8B C.R.S. (1988 Supp.).
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 (Colo. 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 action in which paternity was contested because procedures of U.P.A. were not followed in that action); 1 S. Shatkin, 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 framework provided by the U.P.A.
The Department brought this action on behalf of the child, R.T.L. None of the parties questions the sufficiency of this procedure to make the child "a party to the action" in order to enable the court to make a determination of nonpaternity for the purpose of this support proceeding. See § 19-4-110, 8B C.R.S. (1988 Supp.) (child must be made party to paternity action under U.P.A.); Smith v. Casey, 198 Colo. at 435-36, 601 P.2d at 634 (child is indispensable party to paternity action).
2.
Having concluded that the U.P.A., including its five-year limitation on actions contained in section 19-4-107(1)(b), applies in an Article 6 proceeding in which paternity is contested, we turn now to the construction of section 19-4-107(1)(b). We conclude that the interpretation of that statute urged by the Department is unsound as a matter of statutory construction.
It is a well-established principle of statutory construction that statutes are 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). Section 19-4-107(1)(b), by its plain language, states that certain parties "may bring an action . . . [f]or the purpose of declaring the nonexistence of the father and child relationship . . . 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." Nowhere does the statute limit the time within which a presumed father may assert as a defense the nonexistence of the father and child relationship. Consequently, this case falls squarely within the general rule "that a statute of limitations, although barring the use of a claim for affirmative relief after the limitations period has run, is not a bar to asserting that claim as a defense." Dawe v. Merchants Mortgage and Trust Corp., 683 P.2d 796, 800 (Colo. 1984) (three-year statute of limitations on recoupment claims contained in 15 U.S.C. § 1635(f) does not bar a defensive plea of recoupment based on right to rescind a land transaction under Federal Truth In Lending Act); see also Ackmann v. Merchants Mortgage Trust Corp., 645 P.2d 7, 20 (Colo. 1982) (general rule applies where an allegedly untimely claim of violation of disclosure provisions of Interstate Land Sales Full Disclosure Act is raised as a defense to a suit on a promissory note).
A construction of section 19-4-107(1)(b) under which a nonpaternity defense is precluded after the child reaches five years of age would require a strained and awkward reading of the statute. Moreover, it would effectively convert the rebuttable presumption of paternity in the husband of the child's natural mother into a conclusive presumption. Were such a conclusive presumption to operate, a presumed father would be required to bring an Article 4 proceeding to declare the nonexistence of the father and child relationship before the child's fifth birthday or forever lose his right to deny paternity. Such a procedure would foster needless litigation in circumstances in which no contention is being advanced that a father and child relationship exists. Moreover, a conclusive presumption would provide a party seeking to hold the presumed father responsible for support of the child with incentive to delay bringing a support action until the child reaches five years of age, thus depriving the presumed father of any opportunity to contest paternity. We decline to impute to the General Assembly an intent to enact a statute that would encourage litigation, promote delay and uncertainty, and increase the possibility of an erroneous determination of the question of paternity. Such untoward results could hardly be considered consistent with the purposes of the Children's Code to serve the welfare of children and the best interests of society. See § 19-1-102(1) and (2), 8B C.R.S. (1988 Supp.).
We have previously declined to convert the presumption embodied in § 19-4-105(1)(a) into a conclusive presumption against a natural father claiming parental rights to a child born during the mother's marriage to another man. R.McG. v. J.W., 200 Colo. 345, 615 P.2d 666 (1980) (construing § 19-6-105(1)(a), 8 C.R.S. (1978), which is the statutory predecessor to the present version of § 19-4-105(1)(a)). In R.McG., we held that so long as the U.P.A. grants a natural mother judicial access for a period of years to seek a determination of paternity against the natural father of a child born during the marriage of the mother to another, equal protection of the laws under the United States and Colorado Constitutions mandates that the natural father be granted judicial access and standing to establish his paternity during that same time period. R.McG., 200 Colo. at 352-53, 615 P.2d at 671. In so holding, we stated that a "[p]rocedure by presumption is permissible, but when that procedure `forecloses the determinative issues . . . [and] explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child.'" R.McG. v. J.W., 200 Colo. 345, 352, 615 P.2d 666, 671 (1980) (quoting Stanley v. Illinois, 405 U.S. 645, 657 (1972)).
We acknowledge that the presumption that a child born during wedlock is the legitimate child of the marriage was one of the strongest presumptions known to the common law. B.G. v. S.G., 199 Colo. at 407, 609 P.2d at 123; Lanford v. Lanford, 151 Colo. 211, 214, 377 P.2d 115, 116 (1962). The common-law presumption was not irrebuttable, however, and could be overcome with proof that the husband was impotent or that he had no access to the wife at the time of conception. B.G. v. S.G., 199 Colo. at 407, 609 P.2d at 123; Lanford, 151 Colo. at 214, 377 P.2d at 116. Likewise, the statutory presumption is specifically provided to be rebuttable in an appropriate action by clear and convincing evidence. § 19-4-105(2).
§ 19-1-102, 8B C.R.S. (1988 Supp.), of the Children's Code provides in pertinent part: "(1) The general assembly declares that the purposes of this title are: "(a) To secure for each child subject to these provisions such care and guidance, preferably in his own home, as will best serve his welfare and the interests of society; "(b) To preserve and strengthen family ties whenever possible, including improvement of home environment; . . . "(2) To carry out these purposes, the provisions of this title shall be liberally construed to serve the welfare of children and the best interests of society."
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 stipulated 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 section 19-4-107(1)(b) that would deny the right of a presumptive father to defend against a child support action by asserting the nonexistence of a father and child relationship runs counter to principles of statutory construction and would produce results not consistent with the welfare of the affected children and the best interests of society. Accordingly, we hold that in an Article 6 child support action the defense of nonpaternity may be asserted by a man presumed to be the father pursuant to section 19-4-105(1)(a) notwithstanding that the man would have been precluded by section 19-4-107(1)(b) from bringing an action under Article 4 to declare the nonexistence of the father and child relationship because of the passage of time.
Contrary to the Department's assertions, construing the five-year statute of limitations as barring only the bringing of actions to declare the nonexistence of the father and child relationship does not foreclose the Department from recovering against another man in the event that the presumed father successfully rebuts paternity. Rather, once the presumption has been rebutted, paternity of the child by another man may be determined in the same action if the man has been made a party, § 19-4-107(1)(b), or in a separate action brought at any time up to the child's eighteenth or twenty-first birthday, depending upon the person or entity by which the proceeding is brought, § 19-4-108. Consequently, the ultimate financial burden will fall on the child's biological father, or if he cannot be located, on the taxpayers. However, the burden will not fall on a presumed father who can rebut the presumption by clear and convincing evidence.
JUSTICE MULLARKEY dissents.