D.S.P. v. R.L.K., 83CA0224
Decision Date | 08 December 1983 |
Docket Number | No. 83CA0224,83CA0224 |
Citation | 677 P.2d 959 |
Parties | D.S.P., Plaintiff-Appellant, v. R.L.K. a/k/a R.L.W., Defendant-Appellee, and in the Interest of A.L.R.P. . II |
Court | Colorado Court of Appeals |
James R. Collins, William H. Short, Denver, for plaintiff-appellant.
Howard M. Tuttle, III, Michael V. Makaroff, Englewood, for defendant-appellee.
In July 1981, plaintiff, D.S.P., a resident of the state of Washington, commenced this action under the Uniform Parentage Act, § 19-6-101, et seq., and specifically § 19-6-105(1)(d) and (1)(e), C.R.S.1973 (1978 Repl.Vol. 8) against defendant, R.L.K. (mother) "in the interest of A.L.R.P., a minor child." The mother and the child are residents of Colorado. In his complaint, plaintiff sought a determination that he is the father of the child, and asked for the entry of appropriate orders for custody, visitation, and child support.
The trial court granted the mother's motion for summary judgment and dismissed the action on the grounds that plaintiff was not a presumed father under the statute and that the action was barred by the statute of limitations which the mother had pled as an affirmative defense. Plaintiff appeals. We reverse.
From the depositions, transcripts, affidavits, exhibits, and the admissions and denials of the parties' pleadings and trial data certificates, the following facts appear without substantial controversy. The mother and one K.K. (the husband) were married in December 1969, separated in November 1973, and were divorced in October 1974. The child was conceived in May or June 1974 and was born in February 1975. At the divorce hearing the mother testified that there were no children of the marriage; at no time has she asked for or received child support from the husband.
The mother and plaintiff lived together for portions of 1974 before and during the conception period and for at least the major portion of the period of the pregnancy. They had frequent sexual relations during the conception period. Together they attended pre-natal natural birth classes. Plaintiff was present and assisted at the birth. Based on information furnished by the mother, the child's initial birth certificate, issued in the state of Washington in March 1975, listed plaintiff's last name as the child's last name; however, on the same certificate there was a blank in the section for the name of the father.
Plaintiff and the mother lived together with the child for 15 or 16 months or more following the birth. During this period, plaintiff held himself out as the father of the child. During their relationship, they contemplated marriage but were never married.
They separated in the summer of 1976. In September, the mother had the child's birth certificate changed to reflect the child's last name as being the same as hers instead of that of plaintiff.
In early 1977, the mother moved with the child to the Denver area, and they have lived there ever since. She is now married to another man, and the child lives with them.
The ultimate issue of whether plaintiff is the natural father of the child is disputed in the record. Blood tests which might resolve the ultimate issue have not been performed. See Colo.Sess.Laws 1983, ch. 167, § 13-25-126 and § 19-6-105(1)(f). However, the trial court's dismissal was not based on this factual issue, but rather on its conclusion that the action was barred by the statute of limitations it found applicable.
The trial court's ruling was based on its construction of several provisions of the Uniform Parentage Act. These include:
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The trial court held, as a matter of law, that the husband is presumed to be the natural father under § 19-6-105(1)(a), that the plaintiff is not presumed to be the natural father under § 19-6-105(1)(d) or (e), and that, therefore, the applicable statute of limitations is § 19-6-107(1)(b) and not § 19-6-107(2). From this, the court concluded that, since plaintiff's...
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People in Interest of S.L.H.
...which provides that "any interested party" may bring an action to determine nonexistence of paternity "at any time." See D.S.P. v. R.L.K., 677 P.2d 959 (Colo.App.1983). However, § 19-6-105(2), C.R.S. (1986 Repl.Vol. 8B) states that: "If two or more presumptions arise which conflict with eac......
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K.H.R. By and Through D.S.J. v. R.L.S.
...evidentiary basis and the legal grounds for entry of judgment. C.R.C.P. 56; Southard v. Miles, 714 P.2d 891 (Colo.1986); D.S.P. v. R.L.K., 677 P.2d 959 (Colo.App.1983). An affidavit in support of a motion for summary judgment must be premised upon the personal knowledge of the affiant, must......
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In re I.M.
...allege such facts. Thus, section 19–4–107(1) is inapplicable, and the trial court did not have to consider it. See D.S.P. v. R.L.K., 677 P.2d 959, 961 (Colo. App. 1983) ( section 19–4–107(1) did not apply where the presumed father brought an action under section 19–4–105(1)(d) ).¶ 8 We conc......
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ARTICLE 4
...natural child, he is presumed to be the father, and it is an error for court to dismiss in summary judgment proceedings. D.S.P. v. R.L.K., 677 P.2d 959 (Colo. App. 1983). A juvenile court has subject matter jurisdiction to enter a judgment of paternity in a dependency or neglect case. The c......
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ARTICLE 4 UNIFORM PARENTAGE ACT
...natural child, he is presumed to be the father, and it is an error for court to dismiss in summary judgment proceedings. D.S.P. v. R.L.K., 677 P.2d 959 (Colo. App. 1983). A juvenile court has subject matter jurisdiction to enter a judgment of paternity in a dependency or neglect case. The c......
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UNIFORM PARENTAGE ACT
...natural child, he is presumed to be the father, and it is an error for court to dismiss in summary judgment proceedings. D.S.P. v. R.L.K., 677 P.2d 959 (Colo. App. 1983). A juvenile court has subject matter jurisdiction to enter a judgment of paternity in a dependency or neglect case. The c......
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ARTICLE 4 UNIFORM PARENTAGE ACT
...natural child, he is presumed to be the father, and it is an error for court to dismiss in summary judgment proceedings. D.S.P. v. R.L.K., 677 P.2d 959 (Colo. App. 1983). A juvenile court has subject matter jurisdiction to enter a judgment of paternity in a dependency or neglect case. The c......