Opinion
No. 71-471
Decided September 6, 1972. Rehearing denied September 26, 1972. Certiorari granted November 13, 1972.
Following pre-Children's Code procedure, petition in paternity was filed in 1964. Service of process accomplished in 1969, and, upon subsequent hearing, respondent was held to be father of petitioner's child. Respondent appealed.
Reversed
1. PARENT AND CHILD — Paternity Action — Only Actions — Prior — Statute's Repeal — Filing Petition — Granting Continuance — Insufficient — Save Action. Where the only actions taken in paternity action prior to repeal of the statute under which the litigation was begun was the filing of the petition and the granting of a motion for continuance, such actions were insufficient to save the action under the savings clause of the Children's Code.
2. STATUTES — Paternity Action — No Determination Made — Prior to Repeal — General Savings Statute — Not — Save Action — Children's Code — Applicable. Since no determination as to whether respondent was the father of petitioner's child had been made prior to repeal of statute under which paternity action had been begun, the general statute on saving actions does not operate to save the action under the repealed statute, and the provisions of the Children's Code should have been applied to the proceedings.
Appeal from the Juvenile Court of the City and County of Denver, Honorable John Robert Evans, Judge.
Max P. Zall, City Attorney, Frank A. Elzi, Assistant, Carl R. Mangino, Assistant, for petitioners-appellees.
Robert T. Page, Denver Legal Services, for respondent-appellant.
This dispute involves determination of the paternity of M.K.A., a minor child, born August 4, 1963. Petitioner contends that respondent is the father of M.K.A. To prove paternity, petitioner testified that she cohabited with respondent, and no one else, prior to the birth of M.K.A. Respondent denied being the father of M.K.A. and denied ever having had any relationship whatsoever with petitioner. The court determined respondent to be the father of M.K.A., and it was determined that he was contributing to the dependency of the child. Proceedings as to his support obligation were postponed, pending this appeal.
The errors raised on appeal are concerned with the chronology of this action. On April 2, 1964, a petition alleging that respondent was contributing to dependency was filed, pursuant to C.R.S. 1963, 22-7-1, et. seq., naming respondent as the father of M.K.A. On July 29, 1964, upon motion of petitioner, the action was continued indefinitely due to an unexplained inability to effect service of process on respondent. No further action was taken until December 5, 1969, when a hearing date was set. Service was obtained on respondent on December 23, 1969. After a series of pretrial maneuvers, the paternity hearing finally took place on March 10, 1971.
There was an interval of over five years between the initial filing of the contributing to dependency petition and service of process on respondent. Respondent contends that during this period the section of the statutes under which this action was commenced was repealed by the adoption of the Colorado Children's Code and that the enactment of the Code made further proceedings under this petition improper. The trial court ruled, however, that because the petition was filed prior to the enactment of the Children's Code, the former statute governed the action. We disagree.
I.
[1] The Colorado Children's Code, as adopted in 1967, contains a saving clause with regard to all orders and decrees entered prior to adoption of the Code. 1967 Perm. Supp., C.R.S. 1963, 22-1-13, provides:
"All orders and decrees in proceedings concerning dependency and neglect, delinquency, relinquishment, adoption, paternity or contributing to dependency or delinquency entered by the court prior to the enactment of this chapter shall remain in full force and effect until modified or terminated by the court, as provided in this chapter."
This section does not purport to save the old contributing to dependency sections. In cases where no order or decree has been entered, the old law is without effect, and a proceeding seeking a determination of paternity must necessarily be initiated under the new Code. See C.R.S. 1963, 22-6-1, et seq. Here, the only action prior to the repeal of the statute was the filing of the petition and the granting of a motion for continuance. We hold that this was insufficient to save the action under the saving clause of the Children's Code.
II.
Petitioner contends, however, that even if the action is not saved by the clause in the Children's Code, the general Colorado statute on savings action governs. C.R.S. 1963, 135-1-7. Again, we disagree. That section provides, in essence, that the repeal of a statute does not alter or affect any "penalty, forfeiture, or liability, . . . which shall have been incurred under such statute. . . ."
[2] Petitioner's argument is that respondent's liability attached prior to adoption of the statute. Here, however, there was dispute as to the identity of the father of the child. No determination of this fact had been made and, therefore, the liability had not attached to respondent. He had only been accused. Such a conclusion is consistent with Vail v. Denver Building and Construction Trades Council, 108 Colo. 206, 115 P.2d 389, where the court held that no one has a vested right in a claim for relief, based wholly upon a statute, and that even pending actions are terminated by the repeal of the statutes authorizing such actions unless specifically saved. The Children's Code, 1967 Perm. Supp., C.R.S. 1963, Ch. 22, should have been applied in this instance.
Judgment reversed and remanded for further proceedings not inconsistent with this opinion and the Children's Code.
JUDGE DWYER and JUDGE ENOCH concur.