Opinion
No. 22443.
Decided May 19, 1969.
Paternity suit. From judgment holding plaintiff in error to be father of child and awarding damages to defendant in error and to child, error was brought.
Modified and Affirmed.
1. BASTARDS — Paternity — Damages — Statute — Unconstitutional — Judgment — Void. In paternity suit, where plaintiff in error had assessed against him by a jury a specific sum as damages pursuant to statute which Supreme Court had heretofore declared to be unconstitutional in Munn v. Munn, held, under the authority of the Munn case that portion of judgment assessing damages against plaintiff in error is void.
2. Paternity — Evidence — Finding — Jury — Father of Child. Reviewing court finds verdict of jury on issue of plaintiff in error's paternity supported by the evidence; accordingly, finding of jury that plaintiff in error was father of child will be permitted to stand.
3. PARENT AND CHILD — Illegitimate Child — Father — Duty to Support — Judgment — Damages — Void. Father of illegitimate child is not relieved of his obligation to support such child notwithstanding reviewing court's determination that portion of paternity action judgment assessing damages against father was void.
Error to the District Court of Logan County, Honorable Francis J. Shallenberger, Judge.
C.H. Anderson, David M. Bryans, for plaintiff in error.
Arnold, Ross and Leh, James R. Leh, for defendant in error.
This writ of error was at issue in this court before our decision in Munn v. Munn, 168 Colo. 76, 450 P.2d 68. In the Munn case we declared unconstitutional C.R.S. 1963, 22-6-3, which provided for the assessment of damages against the father of an illegitimate child in a paternity action brought by the mother under the provisions of C.R.S. 1963, 22-6-1, et seq.
Plaintiff in error Loveland had assessed against him by a jury in the district court of Logan County the sum of $18,280 by reason of the identical section held void in the Munn case. Under the authority of Munn that portion of the judgment is void.
As in the Munn case, we find the verdict of the jury on the issue of Loveland's paternity supported by the evidence. Accordingly, the finding of the jury that Loveland was the father of the child involved will be permitted to stand.
Also, as in the Munn case, we do not by this opinion relieve Loveland of his obligation to support the child. See also Smith v. Bott, 169 Colo. 133, 454 P.2d 82.
The Judgment is modified by setting aside that portion which awards damages to defendant in error and to the child. That portion of the judgment holding Loveland to be the father of the child in question is affirmed.
MR. JUSTICE HODGES and MR. JUSTICE LEE concur.