Opinion
No. 20,311.
Decided January 20, 1964.
Dependency proceeding seeking to establish paternity of child. From a judgment finding respondent to be the father of the child but making no determination of dependency, the respondent brings error.
Writ of Error Dismissed.
1. BASTARDS — Dependency Proceeding — Findings — Paternity — Judgment. In a dependency proceeding where no judgment of dependency was entered, but only that respondent was father of child, a finding of dependency was a prerequisite to the liability of respondent to support the child, and where there was no evidence of respondent's ability to contribute to such support, no judgment could be entered with respect thereto.
2. JUDGMENT — Dependency Proceeding — Findings — Paternity — Statutes. In a dependency proceeding where judgment entered was as to paternity only, which was barred by the limitations of C.R.S. '53, 22-6-6, and could only be determined as an incident to proceedings under C.R.S. '53, 22-7-1, et seq., and there being no findings or judgment under the latter statute, no valid judgment appears in the record to which a writ of error would lie.
Error to the Juvenile Court of the City and County of Denver, Hon. Roscoe Pile, County Judge sitting as Juvenile Judge.
Mr. CHARLES S. VIGIL, for plaintiff in error.
Mr. ROBERT S. WHAM, Mr. FRANK A. ELZI, Mr. ROBERT A. POWELL, for defendants in error.
THIS is a dependency action. We shall refer to the parties by name.
Erma Baca, a married woman, filed a petition under C.R.S. '53, 22-7-1, in the Juvenile Court seeking to establish the dependency of her son Ronnie Lee Martinez, born May 22, 1958, upon Manuel Rios, the alleged father, for support. Both the petition and Erma's testimony stated that at the time the child was dependent upon the public for support.
Trial was to a jury which on disputed evidence found the child dependent and Rios to be the father. Rios seeks relief by writ of error from the "judgment" entered on the verdict.
The purported "judgment" which appears in the record is the following:
"IT IS THEREFORE ORDERED BY THE COURT that it is the judgment of this Court that the respondent, Manuel (Tony) Rios, be found to be the father of Ronnie Lee Martinez, also known as Ronnie Lee Rios."
No judgment of dependency was entered by the trial court which is a prerequisite to establish responsibility against Rios to contribute to the child's support. Martinez v. Lopez, 153 Colo. 425, 386 P.2d 595 (1963). No judgment was ever entered ordering Rios to pay anything for Ronnie's support. In fact, this record discloses no evidence as to Rios' ability to contribute any sum to Ronnie's support so no judgment could have been entered to that effect.
From what has been said it is obvious that the "judgment" entered in this action is one as to paternity only which is barred by the time limitation in C.R.S. '53, 22-6-6, except when determined as an incident to an action under C.R.S. '53, 22-7-1 et seq. It follows that there is no judgment in the case against Rios as contemplated under 22-7-3 and the writ of error must be dismissed.
MR. CHIEF JUSTICE McWILLIAMS and MR. JUSTICE PRINGLE concur.