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People in Int. of L.L.R

Colorado Court of Appeals. Division III
Mar 31, 1977
562 P.2d 1121 (Colo. App. 1977)

Opinion

No. 76-325

Decided March 31, 1977.

In paternity action, trial court ruled that respondent was the father of the child, and he appealed.

Affirmed

1. PARENT AND CHILDPaternity Action — Statute of Limitations — Inoperable — Upon Showing — Written Acknowledgment — Furnishing of Support. In order to render inoperable the statute of limitations which prohibits the bringing of a paternity proceeding after the child is five years old, the petitioner must plead and prove the existence of facts which show a written acknowledgment of paternity or the furnishings of support by the alleged father.

2. Paternity Action — Signed Document — Acknowledgment of Paternity — On Its Face — Upon Admission into Evidence — Burden on Putative Father — Defeat Document's Import. Where, in paternity proceedings, the document signed by respondent clearly and unequivocally acknowledges paternity, and there was no question as to the document's authenticity or respondent's signature, the document was sufficient, on its face, to toll the applicable statute of limitations, and, after its introduction into evidence, respondent had the burden of going forward with evidence to prove that the document was not signed as an acknowledgment of paternity.

3. Paternity Action — Signed Acknowledgment of Paternity — Contrary Testimony of Respondent — Issue of Fact — Trial Court's Resolution of Issues — Binding on Review. Where in paternity proceeding, document purporting to be an acknowledgment of paternity by respondent was offered into evidence, and respondent's testimony at trial concerning the signing of the purported acknowledgment was directed at negating its significance and effect, that testimony, in the face of the clear wording of the written acknowledgment, merely presented a question for determination by the trier of fact, and under such circumstances, the trial court's resolution of the issue of duress against respondent and its finding that he knew the nature of the document at the time he signed and that the acknowledgment was valid are findings that will not be disturbed on review.

Appeal from the Juvenile Court of the City and County of Denver, Honorable Jon L. Lawritson, Judge.

Max P. Zall, City Attorney, Frank A. Elzi, Assistant City Attorney, Carl R. Mangino, Assistant City Attorney, for petitioner-appellee.

Thomas P. Malone, for respondent-appellant.


Respondent, having been found to be the father of petitioner's child, appeals, and we affirm.

The child in question was born to petitioner on May 17, 1969. At the hospital, petitioner supplied the information for the child's birth certificate and indicated that the child was to bear the petitioner's last name. However, before petitioner left the hospital, respondent came to visit her, and at that time, according to her testimony, demanded that the child's birth certificate be changed to indicate respondent's last name. The birth certificate was changed accordingly. Attached to the modified birth certificate is a document referred to as an affidavit which states: "I hereby accept the responsibility of being named the Father of the Child described on the reversed side." The document was signed by respondent as "Father," signed by petitioner, and was witnessed by the ward clerk. At the trial the parties stipulated to the authenticity of the document.

Respondent testified that when he went to visit petitioner at the hospital he was confronted by some nurses who asked him to sign the "affidavit." He claimed that at the time he was "high" on drugs and on probation, and he thought that if he did not sign the document his probation would be revoked. He then agreed to sign, but only if the child's birth certificate was changed to indicate the child's last name as his. He testified that he thought the legal effect of the change would be to show that he was not the father.

The present action was filed on December 27, 1974, more than five years after the child's birth. Following a trial to the court, respondent moved for dismissal on the grounds that the purported written acceptance of responsibility was not signed by him as an admission or acknowledgment of paternity, and thus the action was barred by the five-year statute of limitations contained in § 19-6-101(2), C.R.S. 1973. The trial court denied respondent's motion, and further found that the petition had been proved by a preponderance of the evidence and that respondent was the father of the child.

On this appeal, respondent asserts that the court erred in not granting his motion to dismiss. He argues that an acknowledgment of paternity must be clear and unequivocal, and that the trial court improperly required him to refute the validity of the acknowledgment, rather than requiring the petitioner to establish its validity.

Section 19-6-101(2), C.R.S. 1973, provides that, "No [paternity] proceeding under this article shall be initiated after the child is five years old unless paternity has been acknowledged by the father in writing or by furnishing support."

[1] This statute of limitations is a limitation of the right to bring a paternity action after five years from the birth of the child, unless the provision has been tolled by the conduct of the putative father. In re the People in the Interest of L.B., 179 Colo. 11, 498 P.2d 1157 (1972). Thus, in order to render the statute inoperable, a petitioner must plead and prove the existence of facts which show a written acknowledgment of paternity or the furnishing of support by the alleged father.

[2] In the instant case, the document signed by respondent clearly and unequivocally acknowledges paternity, and there is no question as to the document's authenticity or respondent's signature. Accordingly, the document was sufficient, on its face, to toll the statute of limitations. And, after its introduction into evidence, respondent had the burden of going forward with evidence to prove that the document was not signed as an acknowledgment of paternity.

[3] Respondent's testimony at trial concerning the signing of the purported acknowledgment was directed at negating its significance and effect; however, that testimony, in the face of the clear wording of the written acknowledgment, merely presented a question for determination by the trier of fact. The court resolved the issue of duress against respondent and found that he knew the nature of the document at the time he signed, and that the acknowledgment was valid. It is axiomatic that the credibility of witnesses lies within the province of the trier of fact and the findings relating thereto will not be disturbed on review. Broncucia v. McGee, 173 Colo. 22, 475 P.2d 336 (1970).

Accordingly, the judgment of the trial court is affirmed.

JUDGE SMITH and JUDGE RULAND CONCUR.


Summaries of

People in Int. of L.L.R

Colorado Court of Appeals. Division III
Mar 31, 1977
562 P.2d 1121 (Colo. App. 1977)
Case details for

People in Int. of L.L.R

Case Details

Full title:The People of the State of Colorado in the Interest of L.L.R., II, Child…

Court:Colorado Court of Appeals. Division III

Date published: Mar 31, 1977

Citations

562 P.2d 1121 (Colo. App. 1977)
562 P.2d 1121

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