Munn v. Munn

• Decision Date: 03 February 1969
• Docket Number: No. 23035,23035
• Citation: 450 P.2d 68,168 Colo. 76
• Parties: James F. MUNN, Plaintiff in Error, v. Joan J. MUNN, formerly Joan Edge, Defendant in Error.
• Court: Colorado Supreme Court

Page 68

450 P.2d 68

168 Colo. 76

James F. MUNN, Plaintiff in Error, v. Joan J. MUNN, formerly Joan Edge, Defendant in Error.

No. 23035.

Supreme Court of Colorado, En Banc.

Feb. 3, 1969.

Ira Chrisman, Douglas G. McKinnon, Denver, for plaintiff in error.

No appearance for defendant in error.

PRINGLE, Justice.

This is a paternity action brought under Chapter 22, Article 6 of the 1953 Colorado Revised Statutes, now repealed. A jury found James F. Munn to be the father of a child born in February of 1964 to Joan Edge; accordingly it assessed damages of $150 per month for fifteen years as child support, and $1800 damages to Joan. James seeks review of the judgment entered on the verdict. Although she has never been married to James, in 1964 Joan changed her last name to Munn. To eliminate confusion, the parties will be referred to by first name only.

James alleges numerous errors in the trial court, but most of them may be consolidated into the contentions that (a) C.R.S. '53, Chapter 22, Article 6, denies equal protection of the law in that it places upon the father of an illegitimate child a measure of support more onerous than that placed on the father of a legitimate child; (b) that there was insufficient evidence to support the award of damages by the jury; and (c) that certain erroneous rulings on evidence and instructions prejudiced the defendant's case.

In a recently decided case, the United States Supreme Court held that the denial to five illegitimate children of a right of action for the wrongful death of their mother constituted 'invidious discrimination' which denied them the equal protection of the laws as guaranteed by the fourteenth amendment to the United States Constitution. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436. In a companion case, the Court held that where the claimant was plainly the mother the state denied her equal protection by withholding a right of action for the wrongful death of her son merely because he was illegitimate. Glona v. American Guarantee & Liability Insurance Company, 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441. See King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (concurring opinion).

Other jurisdictions have begun to apply the rationale of the two cases. See Hebert v. Petroleum Pipe Inspectors, Inc., 5 Cir., 396 F.2d 237; Storm v. None, 57 Misc.2d 342, 291 N.Y.S.2d 515. See R_ _ v. R_ _, Mo., 431 S.W.2d 152, in which it was held that illegitimate children are entitled to support on the same basis as legitimate children by reason of the equal protection clause of the United States Constitution.

This case presents the reverse side of the argument. Although he cited neither Levy nor Glona James contends here, in essence, that the father of an illegitimate child is denied equal protection when the nature of his support obligation differs substantially from the obligation owed by the father of a legitimate child. In particular, he points out that C.R.S. '53, 22--6--3 provided that a jury may assess such damages as it may think proper for the support of the child, and that the court shall render judgment accordingly. Since a jury verdict is final and cannot be modified as the years progress, James cannot successfully petition the court at a later date to reduce the support payments set forth in the verdict to reflect changed financial conditions or to relieve himself of support should the child be adopted. The striking...