199 Colo. 403 609 P.2d 121

No. 79SC243

B.G. and J.G., Children, Upon the Petition of A.G. v. S.G.

(609 P.2d 121)

Decided April 7, 1980.

Opinion modified and as modified rehearing denied April 28, 1980.

*404Max P. Zall, City Attorney, Frank A. Elzi, Assistant, for petitioner.

Robert C. Floyd, for respondent.

En Banc.

JUSTICE LOHR

delivered the opinion of the Court.

The wife, A.G. (petitioner), filed a petition for child support against the husband, S.G. (respondent), under section 19-7-101, C.R.S. 1973 (now in 1978 Repl. Vol. 8). The juvenile court found for the wife and entered an order for support. The court of appeals reversed and ordered that the support petition be dismissed. We granted certiorari, and now reverse the court of appeals and direct that the support order entered by the juvenile court be reinstated.

Petitioner and respondent were married in 1946. The parties separated in December 1962 or 1963.1 B.G., one of the children for whom support was sought, was born in 1964. In 1966 the petitioner obtained a *405decree of separation and an order restraining respondent from entering the house. J.G., the other child for whom support was sought, was born in 1968.2 The parties were divorced in 19713 and in 1976 the petition for child support was filed.

The issue in this case is whether an action for support of a child who is born in wedlock and whose paternity is disputed can be maintained by the mother under Art. 7 of the Colorado Children’s Code (Art. 7) in absence of a prior determination of paternity under Art. 6 of the Colorado Children’s Code (Art. 6).4 The issue may be crucial in the instant case because the statute of limitations may have run on proceedings under Art. 6.5

Arts. 6 and 7 were enacted in 1967 as part of the Colorado Children’s Code, which extensively revised and codified certain of the laws applicable to juveniles. Colo. Sess. Laws 1967, ch. 443, 22-1-1 at 933 et seq. In 1977, Art. 6 was replaced by the Uniform Parentage Act. Colo. Sess. Laws 1977, ch. 245, 19-6-101 at 1010 et seq. Art. 7 remains unchanged. The events relevant to the present case occurred prior to adoption of the Uniform Parentage Act.

Art. 6 creates a procedure to establish paternity of a child and to compel support by the father. Art. 7 creates a procedure to compel parents, “including fathers of illegitimate children or other legally responsible persons, to support a child or children.” Section 19-7-101(1), C.R.S. 1973. Art. 7 contains no express provisions for determination of paternity except to require that the court find “that the respondent has an obligation to support the child or children” (section 19-7-103(1), C.R.S. 1973 (now in 1978 Repl. Vol. 8)) before any order for support may be entered.

The interrelation of Arts. 6 and 7 has received the attention of this court and of the court of appeals in People in the Interest of L.B., 179 Colo. 11, 498 P.2d 1157 (1972), and People in the Interest of R.M., 37 Colo. App. 209, 548 P.2d 1282 (1975). The juvenile court applied R.M. in permitting the Art. 7 action to proceed in absence of a prior determination of paternity. The court of appeals construed our decision in L.B. to re*406quire dismissal of the Art. 7 action in absence of a prior determination of paternity. We now turn to consideration of those two cases.

In People in the Interest of L.B., supra, an action for support was brought for children over the age of five who were conceived and born out of wedlock.6 The putative father denied paternity. No proceeding to determine paternity had preceded the support action. We held that Art. 6 is the only vehicle for establishing paternity and that Art. 7 is designed to be a simple proceeding to require parents to support their children. We stated:

“Although Article 7 is not the only article authorizing the court to issue support orders, it seems clear to us that it was not contemplated that any issue other than support was contemplated in a proceeding under Article 7. It presupposes that paternity has been established either by an Article 6 proceeding or by acknowledgement of paternity by the father in writing or by furnishing support. 22-6-1.”

179 Colo. at 17, 498 P.2d at 1160. Although the breadth of the language would extend to Art. 7 proceedings relating to children born in wedlock, the only children involved in L.B. were illegitimate children.

In People in the Interest of R.M., supra, the court of appeals considered the question now before us and held that an Art. 7 action with respect to children born in wedlock can be maintained in absence of a prior determination of paternity under Art. 6, notwithstanding a bare denial of paternity. The court of appeals held that the action could proceed until the putative father presented proof sufficient to overcome the presumption of legitimacy. In reaching this result the court of appeals carefully considered L.B. and distinguished it on the basis that only illegitimate children were involved in that case. We conclude that the court of appeals correctly decided R.M. and that the holding of L.B. is not applicable to children born in wedlock.7

Our review of L.B., R.M., and Arts. 6 and 7 convinces us that the fact that the children were born out of wedlock was essential to the holding in L.B. Neither the legislature in Arts. 6 and 7 nor the court in L.B. envisioned the problem of contested paternity of a child born in wedlock.8 Such a child is presumed to be legitimate because that child was born *407of a lawful marriage. Lanford v. Lanford, 151 Colo. 211, 377 P.2d 115 (1962).9 That presumption, while one of the strongest presumptions known to the law, is not irrebuttable and may be overcome by proof that the husband was impotent or that he had no access to the wife at the time of conception. Lanford v. Lanford, supra.

A child who has the benefit of the strong presumption of legitimacy should reasonably be able to rely on that presumption absent a judicial action by the presumed father, challenging paternity. If L.B. were to be applied to children born in wedlock, it would be advisable for representatives of such a child to bring an Art. 6 proceeding before a child’s fifth birthday in every case where paternity might be questioned and where any doubt might exist as to proof that the presumed father had acknowledged paternity or had provided support. See section 19-6-101(2), C.R.S. 1973. Such a rule would promote unnecessary litigation. It would be disruptive of family relationships contrary to the basic purposes of the Colorado Children’s Code10 and contrary to the public policy underlying the presumption of legitimacy.11 We do not believe the legislature intended such result, and the statutory language does not compel it.

We conclude that the fact that an Art. 6 proceeding was not brought within the time permitted by section 19-6-101(2), C.R.S. 1973, does not bar an Art. 7 proceeding with respect to children born in wedlock. In such a case the presumed father must be permitted to deny an obligation to support the child (see section 19-7-103, C.R.S. 1973) by denying paternity, and that issue must be resolved in the Art. 7 proceeding. This result is not inconsistent with the holding in L.B., supra. To the extent that the reach of the language in L.B., supra, can be understood to be contrary to our holding in the instant case, we hereby limit the applicability of that language.

The reasoning of the court of appeals in R.M. is compelling. The Colorado Children’s Code is to be construed “favorably to the best interests of the child and society.” Denver v. Juvenile Court, 182 Colo. 157, 511 P.2d 898 (1973). It would certainly not be in the best interests of the child or society to dismiss an action for support of a child over the age of five born in wedlock simply because the father denied paternity.

B.G. v. S.G.
199 Colo. 403 609 P.2d 121

Case Details

Name
B.G. v. S.G.
Decision Date
Apr 7, 1980
Citations

199 Colo. 403

609 P.2d 121

Jurisdiction
Colorado

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