IN RE MARRIAGE OF OHR, No. 03CA0726.

• Docket Nº: No. 03CA0726.
• Citation: 97 P.3d 354
• Case Date: July 01, 2004
• Court: Court of Appeals of Colorado

97 P.3d 354

In re the MARRIAGE OF Juliane R. OHR, Petitioner and Cross-Appellee, and
Gerry Ohr, Appellee and Cross-Appellant, and
Concerning Roger Bruch, Intervenor-Appellant and Cross-Appellee

No. 03CA0726.

Colorado Court of Appeals, Div. V.

July 1, 2004.

97 P.3d 355

Jacqueline St. Joan, Denver, Colorado, for Petitioner and Cross-Appellee and Intervenor-Appellant and Cross-Appellee

Gutterman Griffiths & Powell, PC, Marie Avery Moses, Lone Tree, Colorado, for Appellee and Cross-Appellant.

Opinion by Judge DAILEY.

Juliane R. Ohr (wife) and Roger Bruch (intervenor) appeal from the judgment determining that Gerry Ohr (husband) is the legal father of the child born during husband's marriage to wife. Husband cross-appeals from that part of the judgment allocating parenting time to intervenor. We affirm in part, reverse in part, and remand for correction of the judgment.

Husband and wife had been married for twenty-two years when wife filed a petition for dissolution of marriage. The child had been conceived and born approximately three years before wife filed for dissolution of the marriage. Two months after the petition for dissolution was filed, intervenor filed a petition to establish his paternity based on the results of genetic testing, which showed more than a ninety-nine percent probability that he was the father of the child. The dissolution and paternity actions were consolidated.

After a three-day hearing, the trial court found that husband enjoyed the presumption of legitimacy because the child was born during the marriage and the parties held her out as their child. The court also found that intervenor enjoyed the presumption of being the biological father as a result of the genetic testing. The court further found that all the adults knew or should have known that the child was intervenor's biological child prior to her birth in June 1999. Nevertheless, husband received the child into the family as his

97 P.3d 356

own, and intervenor did not assert parentage until May 2002

The court also found that husband exercised parental involvement in the child's life for thirty-three of the initial months of her life. In contrast, intervenor had only limited casual contact once a week, but dramatically increased his involvement in the child's life during the eleven months prior to the hearing.

The court considered the parties' values, time commitments, and parenting skills. It concluded that husband had good parenting skills and interaction with the child, while intervenor interacted poorly with her and was learning to be a parent. The court also noted that intervenor had a history of alcoholism, drug abuse, and spousal abuse that had persisted over his lifetime, and concluded that his prognosis was guarded. It found that intervenor's history, as well as his issues concerning anger management with children, could negatively affect the child.

The court further found that husband also had significant mental health problems, had been highly unstable since the separation, and alienated his older children, and there was credible evidence of spousal abuse. The court concluded, however, that husband's deficits were primarily related to the dissolution and that he had a better chance of recovery than intervenor. The court also found that the child was more attached to husband.

The trial court determined that husband was the child's legal father. However, the court also found that the child knew that she had two fathers and had internalized that information and, therefore, concluded that she needed to have long-term relationships with both husband and intervenor. Consequently, both husband and intervenor were granted separate supervised parenting time with the child, and all parties were ordered to participate in therapy.

I. Wife's and Intervenor's Appeal

A.

Wife and intervenor contend that, as a matter of law, husband's spousal abuse of wife disqualified him from being named the child's legal father. We disagree.

Where paternity is raised during a dissolution of marriage action, the provisions of the Uniform Parentage Act (UPA), § 19-4-101, et seq., C.R.S.2003, must be applied. In re Marriage of Burkey, 689 P.2d 726, 727 (Colo.App.1984).

Under the UPA, the best interests of the child are determinative of paternity in cases involving, as here, two conflicting presumptions of paternity. N.A.H. v. S.L.S., 9 P.3d 354, 364-65 (Colo.2000); see also People in Interest of J.A.U. v. R.L.C., 47 P.3d 327, 334 (Colo.2002)("[A] legal finding of paternity entails more than simply an analysis of DNA test results. Instead ... paternity determinations are made based on the best interests of the child." (citations omitted)).

One factor considered in determining the best interests of the child under the Uniform Dissolution of Marriage Act (UDMA) is the existence of credible evidence of spousal abuse. See § 14-10-124(1.5)(a)(X), C.R.S.2003 (denoting such as a factor to be considered in allocating parental responsibilities). This factor is not, however, necessarily determinative of the best interests of the child. See In re Marriage of Bertsch, 97 P.3d 219, 2004 WL 63459 (Colo.App. No. 02CA0888, Jan. 15, 2004).

Here, the trial court specifically found that there was credible evidence of spousal abuse by husband and that intervenor had a history of alcoholism, drug abuse, and domestic violence that had persisted over his lifetime. The court also found, however, that intervenor's issues concerning anger control arose in his dealing with the child and could negatively affect his ability to parent her.

Thus, the court explicitly considered the evidence of past spousal abuse by both presumed fathers in resolving the parentage issue in the best interests of...