Marriage of Dureno, In re

• Citation: 854 P.2d 1352
• Decision Date: 17 December 1992
• Docket Number: No. 92CA0740,92CA0740
• Parties: In re the MARRIAGE OF Mickie K. DURENO, Appellee, and John B. Dureno, Appellant. . I
• Court: Court of Appeals of Colorado

Page 1352

854 P.2d 1352

In re the MARRIAGE OF Mickie K. DURENO, Appellee,

and

John B. Dureno, Appellant.

No. 92CA0740.

Colorado Court of Appeals,

Div. I.

Dec. 17, 1992.

Rehearing Denied Jan. 28, 1993.

Certiorari Denied July 6, 1993.

Litvak and Litvak, P.C., Ronald D. Litvak, Denver, for appellee.

Jennifer A. Rivera, P.C., Jennifer A. Rivera, Denver, for appellant.

Opinion by Chief Judge STERNBERG.

This appeal concerns the authority of the trial court in a dissolution of marriage proceeding to award visitation to someone other than a natural or adoptive parent of a minor child. The trial court held there was no legal basis to award visitation under such circumstances. We disagree and therefore we vacate the trial court's order and remand for further proceedings.

This case, which originated as a dissolution of marriage action, evolved into an annulment and paternity proceeding. In September 1990, Mickie K. Dureno (wife) sought a dissolution of the marriage between her and John B. Dureno (husband). Wife's dissolution petition alleged that the parties were married in November 1987 and that a daughter, the child at issue here, had been born in May 1989, during the marriage. The parties stipulated to temporary orders granting husband visitation with the child and requiring him to pay child support.

Shortly thereafter, the wife repudiated husband's paternity and obtained a court order requiring the parties to submit to blood tests to determine paternity. The tests proved conclusively that husband was not the child's biological father.

Wife thereupon filed a motion for summary judgment declaring the husband's non-paternity. In response, husband stipulated that he was not the child's biological father, but he asserted that he had assumed responsibility for the child "emotionally, physically and financially" since her birth and alleged that he and the child share a warm and loving relationship. Husband argued that he stood in loco parentis to the child and that, as a "psychological parent," he was entitled to visitation and that it would be detrimental to the child to sever their relationship.

Based on the husband's stipulation of non-paternity, the trial court, on July 10, 1991, entered summary judgment declaring the nonexistence of a father-child relationship between the husband and the child. At the same time, on the motion of both parties, the trial court ordered a custody evaluation and reserved jurisdiction to decide visitation. Husband continued to see the child under the visitation provisions of temporary orders previously entered.

In the interim, husband had moved to amend his response to the dissolution petition. The motion requested that, instead of a dissolution decree, the court enter a Declaration of Invalidity pursuant to § 14-10-111(1)(g)(I), C.R.S. (1987 Repl.Vol. 6B). In support of his motion, husband provided documentation showing that wife was not legally divorced from her previous husband when the parties were married in 1987.

In an off-the-record hearing on March 4, 1992, the court concluded that since husband was not the child's natural or adoptive father and the parties were never validly married, there was no legal basis for awarding visitation to the husband. The court therefore terminated husband's temporary visitation rights and dismissed the action.

I.

Initially, we address the validity of the order entered on July 10, 1991, declaring the nonexistence of a father-child relationship between the husband and the child. We conclude that the judgment is subject to attack or direct appeal and therefore remand the cause for further proceedings.

This court may sua sponte consider the district court's lack of subject matter jurisdiction notwithstanding the parties' failure to raise the issue. Sullivan v. Board of County Commissioners, 692 P.2d 1106 (Colo.1985).

When a paternity issue is raised in dissolution proceedings, the adjudication of paternity must be made according to the specific provisions of the Uniform Parentage Act, § 19-4-101, et seq., C.R.S. (1992 Cum.Supp.). Under the U.P.A., the child is an indispensable party to a paternity proceeding, and, unless he or she can be made a party, the trial court is without jurisdiction to resolve any matters pertaining to paternity. Smith v. Casey, 198 Colo. 433, 601 P.2d 632 (1979); see also M.R.D. v. F.M., 805 P.2d 1200 (Colo.App.1991).

On July 10, 1991, when the order was entered, the child was not represented by a guardian ad litem and was not before the court as a proper party plaintiff. See § 13-22-101(1)(c), C.R.S. (1987 Repl.Vol. 6A); C.R.C.P. 17(c). Therefore, the cause must be remanded to the trial court to conduct the necessary proceedings pursuant to the U.P.A. See In re Marriage of Burkey, 689 P.2d 726 (Colo.App.1984).

II.

Because the matter of visitation by husband will likely arise on remand, we address, as a matter of first impression, whether visitation rights may be awarded a third-party who is neither a natural nor an adoptive parent. We conclude that such an order is permissible under some circumstances, one of which is that it will serve the best interests of the child.

The husband argues that visitation by a stepparent or surrogate parent should not be precluded as a matter of law, and he urges us to follow courts in other jurisdictions which have approved nonparent visitation when it is in the child's best interest.

It is the law in Colorado that custody may be awarded to a person other than a natural parent if such an award is in the best interest of the child. Root v. Allen, 151 Colo. 311, 377 P.2d 117 (1962); see also Abrams v. Connolly, 781 P.2d 651 (Colo.1989). Indeed, the statute governing custody specifically provides that a custody proceeding may be commenced by "a person other than a parent" in certain circumstances. Such custody may be sought:

(b) By a person other than a parent, by filing a petition seeking custody of the child in the county where the child is permanently resident or where he is found, but only if the child is not in the physical custody of one of his parents; or

(c) By a person other than a parent who has had physical custody of a child for a period of six months or more, if such action is commenced within six months of the termination of such physical custody.

Section 14-10-123(1), C.R.S. (1987 Repl.Vol. 6B).

Similarly, the Uniform Child Custody Jurisdiction Act, § 14-13-102, et seq., C.R.S. (1987 Repl.Vol. 6B), authorizes the trial court to adjudicate custody disputes involving parties other than biological or adoptive parents. See In re Marriage of Tricamo, 42 Colo.App. 493, 599 P.2d 273 (1979).

However, in contrast to the above statutes relating to custody, the statute which addresses visitation contains more restrictive language: it speaks of awards being made to natural and adoptive "parents." Section 14-10-129, C.R.S. (1987 Repl.Vol. 6B), provides in pertinent part:

A parent not granted custody of the child is entitled to reasonable visitation rights.... [T]he court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger the child's physical health or significantly impair his emotional development.

Relying on this use of the word "parent," wife asserts that the right to visitation is limited under § 14-10-129 to persons having a blood or adoptive relationship with the minor child. She argues that, in contrast to the custody statute, § 14-10-129 precludes third-party visitation as a matter of law. We disagree and hold that such a narrow interpretation of the statute would be contrary to the public policy of this state.

The various parts of the Uniform Dissolution of Marriage Act, § 14-10-101 et seq., C.R.S. (1987 Repl.Vol. 6B), must be read in pari materia and construed to effect the strong public policies underlying the Act. See Alias Smith & Jones, Inc. v. Barnes, 695 P.2d 302 (Colo.App.1984).

When statutes on the same subject are potentially conflicting, the court must reconcile them, if possible, to avoid an inconsistent or absurd result. The Colorado and Southern Railway Co., Inc. v. District Court, 177 Colo. 162, 493 P.2d 657 (1972). In interpreting a statute we must be aware of the consequences of a particular construction. Section 2-4-203(1)(e), C.R.S. (1980 Repl.Vol. 1B).

The right to visitation is derived from the right to custody and is governed by the same legal principles. See § 14-10-124, C.R.S. (1987 Repl.Vol. 6B); In re Marriage of Sepmeier, 782 P.2d 876 (Colo.App.1989); In re Marriage of Adamson, 626 P.2d 739 (Colo.App.1981). Thus, it would be inconsistent, if not absurd, to hold that a stepparent or other third-party is entitled under one section of the Act to an award of legal custody, but has no right of visitation under another section of the Act.

We note that prior to the adoption of the Uniform Dissolution of Marriage Act in 1971, see Colo.Sess.Laws 1971, ch. 130, p. 520, there was no statutory authority for the award of visitation upon divorce or annulment. See, e.g., C.R.S.1963, 46-1-1, et seq.; 46-3-1, et seq. Rather, Colorado courts prior to the dissolution of marriage act granted visitation as part of their broader authority to determine custody in the best interest of the child. See Breene v. Breene, 51 Colo. 342, 117 P. 1000 (1911); McKercher v. Green, 13 Colo.App. 270, 58 P. 406 (1899).

This court has previously ruled that adoption of the UDMA in 1971 did not alter the traditional authority of Colorado courts to award custody to third parties in dissolution actions. In re Marriage of Trouth, 631 P.2d 1183 (Colo.App.1981). Additionally, we note that the supreme court has ruled that the "affinal" relationship between stepparent and stepchild is not automatically terminated by dissolution of the marriage between the natural parent and the stepparent. In re Estate of Iacino, 189 Colo. 513, 542 P.2d 840 (1975).

Therefore, we are not persuaded that § 14-10-129 was adopted for the purpose of...