In re Marriage of Smith

• Decision Date: 28 October 1999
• Docket Number: No. 97CA2202.,97CA2202.
• Citation: 7 P.3d 1012
• Parties: In re the MARRIAGE OF Donald R. SMITH, Petitioner-Appellee, and Loretta Ruth Smith, Respondent, and Concerning Charles Ames, Third-Party Respondent-Appellant.
• Court: Colorado Court of Appeals

7 P.3d 1012

In re the MARRIAGE OF Donald R. SMITH, Petitioner-Appellee, and

Loretta Ruth Smith, Respondent,

and Concerning

Charles Ames, Third-Party Respondent-Appellant.

No. 97CA2202.

Colorado Court of Appeals, Div. V.

October 28, 1999.

As Modified on Denial of Rehearing February 3, 2000.¹ Certiorari Denied August 7, 2000.²

Drummond, Dougherty & Schwartz, P.C., Donald G. Drummond, Larry C. Schwartz, Pueblo, Colorado, for Appellee.

No Appearance for Respondent.

Law Offices of J.E. Losavio, J.E. Losavio, Jr., Pueblo, Colorado, for Third-Party Respondent-Appellant.

Opinion by Judge TAUBMAN.

In this action for retroactive payment of child support, third-party respondent, Charles Ames (father), appeals the order of the trial court awarding money damages to Donald Robert Smith (husband) as reimbursement for his past support of the children of father and Loretta Ruth Smith (wife). We affirm.

This third-party proceeding arose under the Uniform Parentage Act (UPA), § 19-4-101, et seq., C.R.S.1999, in connection with the dissolution of the marriage of husband and wife. Husband petitioned the court for a declaration as to his paternity of the three minor children born during the marriage. As grounds, husband claimed to be the children's natural father, but averred that wife had informed him that all three of the children were fathered by another man. Thereafter, wife named respondent as the putative father and requested that he be joined as a party. The court granted the wife's request.

Shortly after wife filed her motion to join father, husband filed a motion seeking reimbursement of past child support from the father or any other individual ultimately determined to be the children's biological father. Husband sought to be reimbursed for child support in an amount equal to his contributions toward the cost of raising the children since their birth. Husband's motion remained pending while the parties and the children received genetic testing. The test results established the biological paternity of father.

The trial court then considered the merits of husband's motion for reimbursement and determined that he could recover the support he had previously provided to father's children. After an evidentiary hearing, the court entered an additional order finding that husband's claim of reimbursement was timely under the general two-year statute of limitations set forth in § 13-80-102(1)(i), C.R.S. 1999, and that he was entitled to receive an award for $19,929.40 as damages. That amount was determined based on application of the child support guidelines and husband's testimony concerning his actual expenses in raising the children. The court also awarded attorney fees to husband in the amount of $3,436, as well as his costs for the genetic testing.

I. Statute of Limitations

In challenging the court's rulings, father first contends that husband failed to file his claim within the two-year limitations period provided by § 13-80-102(1)(i). We conclude that husband's claim was timely.

Father maintains that husband's claim is subject to the general two-year limitations provision which applies to actions not governed by a specific limitations period. Inasmuch as the parties have not raised the applicability of any other statutes of limitations, such as those provided in the UPA, we consider only whether husband's action survives the application of the two-year limitations provisions. See D'Amico v. Smith, 42 Colo.App. 369, 600 P.2d 84 (1979) (application of a statute of limitations that is not pled is waived).

The commencement of the statutory period for filing the claim at issue here depends upon when the action accrued pursuant to § 13-80-108(8), C.R.S.1999, which provides that:

A cause of action for losses or damages not otherwise enumerated in this article shall be deemed to accrue when the injury, loss, damage, or conduct giving rise to the cause of action is discovered or should have been discovered by the exercise of reasonable diligence.

The rule of discovery, as this test is generally known, involves an inquiry into when the party bringing the action acquired knowledge of or should have reasonably discovered the essential facts, rather than the applicable legal theory. See Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993); Winkler v. Rocky Mountain Conference of United Methodist Church, 923 P.2d 152 (Colo.App. 1995).

Only when the evidence clearly shows that a party's discovery of the pertinent facts occurred or should have occurred upon a particular date can the issue be decided as a matter of law. Gavend v. Malman, 946 P.2d 558 (Colo.App.1997). Otherwise, such issue presents a question of fact. Winkler v. Rocky Mountain Conference of United Methodist Church, supra.

Here, the court found that wife had informed husband he was not the natural father of the children in October 1993 and that, prior to that time, he believed he was their biological father and had no reason to think otherwise. The court also found that husband initially attributed wife's claim to her anger concerning the dissolution of marriage. The testimony in the record supports these findings.

Further, it is undisputed that husband did not know of father's identity until wife named him in her motion to join father as a third party. The trial court relied upon that fact to determine that husband's cause of action did not accrue until that motion was filed in April 1994.

Although father contends that husband did not bring this action until he submitted his trial brief on July 22, 1997, the record shows that his initial motion requesting reimbursement of paid child support was filed on May 3, 1994, well within the asserted two-year period. Therefore, we conclude that the trial court properly determined that husband's claim was not barred under the general two-year statute of limitations.

II. Retroactive Child Support

Father next contends that the UPA does not permit the collection of child support retroactively. We disagree.

Although proceedings to establish and enforce child support obligations operate only prospectively under the Uniform Dissolution of Marriage Act, § 14-10-101, et seq., C.R.S. 1999, the UPA vests authority and jurisdiction in the trial court to permit the recovery of past child support. In re Custody of Garcia, 695 P.2d 774 (Colo.App.1984). See also People in Interest of L.W., 756 P.2d 392 (Colo.App.1988)(the question of child support in a paternity proceeding involves both past and future support).

As § 19-4-116(3)(a), C.R.S.1999, provides, a judgment or order determining paternity "may contain any other provision directed against the appropriate party to the proceeding concerning the duty of support, the recovery of child support debt pursuant to section 14-14-104 ... or any other matter in the best interest of the child." Section 19-4-116(4), C.R.S.1999, further provides, in pertinent part:

The court ... may enter an order directing the father to pay for support of the child, in an amount as may be determined by the court ... to be reasonable under the circumstances, for a time period which occurred prior to the entry of the order establishing paternity. The court may limit the father's liability for past support of the child to the proportion of the expenses already incurred that the court deems just. (emphasis added)

Father argues that the reference in § 19-4-116(3) to § 14-14-104, C.R.S.1999, which concerns child support debt based upon prior payments of public assistance, restricts the right to obtain reimbursement for past child support to county departments of social services. We are not so persuaded.

Statutes must be given effect according to their plain and ordinary meaning. People in Interest of R.T.L., 780 P.2d 508 (Colo.1989).

No reference to § 14-14-104 appears in § 19-4-116(4), and that provision does not contain any language that limits the right of reimbursement to governmental entities. In fact, the supreme court has recognized that the right to obtain past support may be asserted by the mother of the child. See People in Interest of A.A.T, 191 Colo. 494, 554 P.2d 302 (1976). Moreover, this court has previously determined that the discretion to reduce a father's liability applies only to the reimbursement of past support provided by a child's custodian and not to an award under § 14-14-104, which, pursuant to the dictates of the version of that statute, as it existed before 1993, could equal or exceed the amount of public assistance paid. See People in Interest of A.A.V., 815 P.2d 997 (Colo.App.1991). Consequently, the interpretation urged by father would render superfluous the specific power granted the court in § 19-4-116(4) to limit a father's liability for past support.

Also, a plain reading of the clauses of § 19-4-116, C.R.S.1999 quoted above indicates that the statute was intended to give trial courts broad discretion in enforcing it. These clauses vest the trial court with broad discretion concerning the establishment of liability for and the amount of retroactive child support.

Our conclusion that a father may be required to pay child support retroactive to the birth of the child under the UPA is consistent with the result reached by courts in other jurisdictions.

Interpreting the Wyoming equivalent of § 19-4-116(3)(a), the Wyoming Supreme Court held in Ellison v. Walter ex rel. Walter, 834 P.2d 680 (Wyo.1992) that a trial court possesses the authority to issue support orders retroactive to the date of a child's birth in paternity/support actions initiated by a state social services agency for the reimbursement of public assistance. The Ellison court also determined that retroactive child support orders should be the rule, rather than the exception. Nothing in the analysis by the Ellison court limits its holding to circumstances in which a state is seeking reimbursement of public assistance.

The Ellison court reasoned that, because the...