People in Interest of E.E.A. v. J.M.

• Citation: 854 P.2d 1346
• Decision Date: 17 December 1992
• Docket Number: No. 91CA0865,91CA0865
• Parties: The PEOPLE of the State of Colorado, In the Interest of E.E.A., a Child, and Concerning K.A., Petitioner-Appellee, v. J.M., Respondent-Appellant. . II
• Court: Court of Appeals of Colorado

Page 1346

854 P.2d 1346

The PEOPLE of the State of Colorado, In the Interest of E.E.A., a Child, and Concerning K.A., Petitioner-Appellee, v. J.M., Respondent-Appellant.

No. 91CA0865.

Colorado Court of Appeals Div. II.

Dec. 17, 1992.

Rehearing Denied Jan. 28, 1993.

Certiorari Granted July 6, 1993.

Denying Certiorari As Improvidently Granted Dec. 16, 1993.

Clanahan Tanner Downing & Knowlton, Thomas C. McKee, Dino A. Ross, Denver, for petitioner-appellee.

Dixon and Snow, P.C., Steven Janiszewski, Denver, for respondent-appellant.

Daniel E. Muse, City Atty., J. Creig Coogan, Asst. City Atty., Denver, for amicus curiae Denver Dept. of Social Services.

Opinion by Judge PLANK.

In this paternity action, respondent, J.M., appeals from a trial court order denying his C.R.C.P. 60(b)(3) motion to set aside a prior judgment declaring him the father of E.E.A. (child). We affirm.

On October 11, 1984, petitioner, K.A., brought an action seeking a paternity determination and order for reasonable child support. In the paternity proceedings, blood tests established a presumption that J.M. was the father of the child. On November 17, 1985, the trial court granted summary judgment in favor of petitioner, adjudicating J.M. the biological father of the child. On March 17, 1986, the trial court ordered J.M. to pay child support and attorney fees.

On May 1, 1990, J.M. filed a C.R.C.P. 60(b)(3) motion for relief from judgment and orders. The trial court denied the motion, and this appeal followed.

J.M. contends that the child was not properly made a party to the action. He argues, therefore, that the trial court lacked subject matter jurisdiction to determine the issue of paternity and that the paternity judgment is void. We agree that the child was not properly made a party to this action, creating a jurisdictional flaw. However, we disagree that respondent may now collaterally attack the judgment.

I.

Under the Uniform Parentage Act, as in effect during the paternity proceedings § 19-6-101, et seq., C.R.S. (1986 Repl. Vol. 8B), a child was an indispensable party to a paternity action. Section 19-6-110, C.R.S. (1986 Repl. Vol. 8B) (now codified as § 19-4-110, C.R.S. (1992 Cum. Supp.)); M.R.D. v. F.M., 805 P.2d 1200 (Colo.App.1991).

Merely naming an individual in a petition or complaint does not make the person a party to the action; to be a true party, that person must be competent to sue and have the right to control the proceedings, to defend, to present and cross-examine witnesses, and to appeal in his own right. People in Interest of R.D.S., 183 Colo. 89, 514 P.2d 772 (1973); Jenkins v. Estate of Thomas, 800 P.2d 1358 (Colo.App.1990).

Pursuant to § 13-22-101, C.R.S. (1987 Repl. Vol. 6A), any person under the age of 18 may not sue or be sued without being represented by a guardian ad litem or someone acting in their behalf. Further, the applicable statute precludes either the father or mother from acting on behalf of the child. Section 19-6-110, C.R.S. (1986 Repl. Vol. 8B). Therefore, in order to be a party to a paternity proceeding, a minor child must be represented by a general guardian, a conservator, his next friend, a guardian ad litem, or a similar fiduciary. See C.R.C.P. 17(c).

A.

Mother argues that the child was a party either because he was represented by her attorney or by her as his "next friend." We find no merit to these arguments.

Even if we assume that representation by an attorney alone would fulfill the criteria for a child to be a party to a paternity action, the record does not support the contention that mother's attorney was also representing the child. The petition and all pleadings filed through entry of the judgment of paternity were filed by mother, as "petitioner," through her attorneys. The child was not named on any pleading as a petitioner, nor was there any statement on any pleading that mother's attorneys also represented him.

Section 19-6-110 provides that a "child's mother or father may not represent the child as guardian or otherwise." The comment to this section in the Uniform Parentage Act indicates that this provision was adopted because the interests of a parent may conflict with those of the child in a parentage action. See 9B Uniform Laws Annot., Matrimonial, Family & Health Laws 312 (1987).

Consequently, a mother may not bring an action on behalf of a child as the child's "next friend." See J.E.S. v. F.F., 762 P.2d 703 (Colo.App.1988); see also People in Interest of T.L.H., 701 P.2d 87 (Colo.App.1984); cf. Miller v. Sybouts, 97 Wash.2d 445, 645 P.2d 1082 (1982). Therefore, we find no merit to mother's arguments that the child was properly made a party either through representation by mother's attorney or through mother's representation of the child as his "next friend."

B.

We further find no merit in the arguments of mother and the amicus curiae, Department of Social Services (Department), that the child does not need individual representation in a paternity action. Mother and the Department argue that, pursuant to the second sentence of § 19-6-110 and C.R.C.P. 17(c), appointment of a guardian ad litem to represent a child in a paternity proceeding is permissive. Therefore, it is contended, as long as the court determines that the child's interests are being adequately represented and the child faces no detriment, the court does not abuse its discretion in not appointing a guardian ad litem to represent the child. We disagree.

When the Uniform Parentage Act was adopted in Colorado, the first three sentences of § 19-6-110 read as follows:

The child shall be made a party to the action. If he is a minor he shall be represented by his general guardian or a guardian ad litem appointed by the court. The child's mother or father may not represent the child as guardian or otherwise.

Colo. Sess. Laws 1977, ch. 245, § 19-6-110 at 1013. In 1981, the General Assembly, without amending the first or third sentences of § 19-6-110, amended the second sentence to its current form which reads as follows: "If he is a minor, the court may appoint a guardian ad litem." Colo. Sess. Laws 1981, ch. 231, § 19-6-110 at 1028 (now codified as § 19-4-110).

We reject the assertion that because of this statutory change, it is within the court's discretion to determine whether it is appropriate to appoint a guardian ad litem or other representative to represent the child in a paternity action.

In analyzing the nature and effect of the 1981 legislative amendment to § 19-6-110, our primary task is to ascertain and give effect to the legislative purpose underlying the enactment. And, to ascertain that purpose, we look first to the statutory language employed by the General Assembly and give words their commonly accepted and understood meaning.

If the statutory language is clear and unambiguous, there is no need to resort to interpretative rules of statutory construction. If, however, statutory language is uncertain as to its intended scope, with the result that the statutory text lends itself to alternative constructions, then a court may appropriately look to pertinent legislative history as well as the circumstances under which the statute was enacted. Woodsmall v. Regional Transportation District, 800 P.2d 63 (Colo.1990).

When faced with a statutory ambiguity, a court also may consider the consequences of a particular construction. Woodsmall v. Regional Transportation District, supra.

Furthermore, the General Assembly is presumed to be aware of the judicial interpretations of a statute that it amends. And, it is presumed that the amendment does not change existing law further than is expressly declared or necessarily implied. 5050 S. Broadway Corp. v. Arapahoe County Board of Commissioners, 815 P.2d 966 (Colo.App.1991).

The legislative history of this statutory change indicates that the primary purpose behind the 1981 amendment was cost-savings. The General Assembly concluded that thousands of dollars could be saved by eliminating the requirement that a child be represented by a guardian or guardian ad litem in every paternity case. It also concluded that the interests of the child could be represented by the child's parents and that the child, therefore, may not always need individual representation. Consequently, the amendment at issue attempted to make the appointment of a guardian ad litem discretionary with the trial court. Hearings on S.B. 378 before the Senate Judiciary Committee, 53rd General Assembly, First Session (March 11 and 23, 1981); Hearings on S.B. 378 before the House Judiciary Committee, 53rd General Assembly, First Session (April 21, 1981).

However, the General Assembly did not eliminate the requirement that the child be made a party to a paternity action. Therefore, this requirement remained in effect after the amendment to the second sentence.

In our view, this change created an irreconcilable conflict between the application of the first and second sentences.

The first sentence of § 19-6-110 mandates that a child must be made a party to a paternity action, and under § 13-22-101, a minor to be competent to sue or be sued must be represented by an appropriate fiduciary. Further, C.R.C.P. 17(c) prescribes that a child may be represented in a lawsuit by a general guardian, conservator, next friend, guardian ad litem, or other like fiduciary. Moreover, C.R.C.P. 17(c) requires the court to appoint a guardian ad litem for an infant not otherwise represented in an action or to make such other order as it deems proper for the protection of the infant.

Thus, the first sentence of § 19-6-110, together with § 13-22-101 and C.R.C.P. 17, requires a child to be represented individually by a fiduciary in the paternity action. This requirement logically conflicts with the language of the second sentence which attempts to make the appointment of a guardian ad litem discretionary with the trial court.

Divergent policies led to the adoption of the first and second sentences of §...