Opinion
No. 70-415
Decided December 15, 1970. Opinion modified and as modified rehearing denied January 26, 1971. Certiorari granted April 12, 1971.
Paternity determination sought by means of action for support brought under article 7 of the Colorado Children's Code. From a finding that respondent was the father of the children, respondent appealed.
Reversed
1. STATUTES — Construed — Effectuate — Intent — Legislative Body. Every legislative act must be construed to effectuate, if possible, the intent of the law-making body.
2. Determine — Intent — Legislative Body — History of Statute — Helpful. The court should attempt to determine the intent of the legislative body in an effort to arrive at the true meaning of a statute, and in determining this intent the history of the statute is often helpful.
3. PARENT AND CHILD — Children's Code — No Ambiguity — Article 6 — Paternity and Support — Article 7 — Support — Paternity Not Disputed. There is no ambiguity in the wording of Articles 6 and 7 of the Colorado Children's Code; paternity and support issues are to be determined under Article 6, and Article 7 is to be used only for the determination of support where paternity is not in dispute.
4. COURTS — Juvenile Court — Statutory — No Jurisdiction — Beyond Statute. The juvenile court is a statutory court with no jurisdiction beyond that expressly given by statute.
5. TRIAL — Children's Code — Putative Parent — Jury Trial — Determination of Paternity — No Right — Support Hearing. Under the Colorado Children's Code, a putative parent is entitled to the right of a jury trial in any proceeding in which there is a determination of paternity, but no right to a jury trial is present in a support hearing under Article 7 of the Code.
Error to the Juvenile Court of the City and County of Denver, Honorable Ted Rubin, Judge.
Max P. Zall, City Attorney, Frank A. Elzi, Assistant, Robert A. Powell, Assistant, Ronald Schultz, Assistant, for petitioners-appellees.
Kaufman, Greenwald and Machol, Jack Greenwald, for respondent-appellant.
This is an appeal from a judgment of the Juvenile Court of the City and County of Denver. The court ordered, "That the petition in support proceedings be sustained * * *," and then adjudged that the respondent was the father of the two minor children involved in this action.
The respondent alleges three errors: (1) that the court should not have permitted this paternity action to be instituted under 1967 Perm. Supp., C.R.S. 1963, 22-7-1, et seq.; (2) that it was error to deny respondent's request for a jury trial; and (3) that the court should have sustained the respondent's motion to dismiss on the grounds of laches.
The evidence presented at trial is not relevant to the determination of this appeal. However, it is necessary to analyze the pleadings and the provisions of the Colorado Children's Code, 1967 Perm. Supp., C.R.S. 1963, 22-1-1, et seq.; and 22-7-1, et seq. The new Children's Code, hereafter referred to as the "Code," was adopted by the legislature in 1967 and became effective July 1, 1967.
In January 1967 the petitioner (mother of the children) filed a "Petition In Contributing to Dependency", in which the respondent was stated to be the father of the two children who were then 8 and 9 years old, respectively. In August 1967 respondent's motion to quash the service was granted and at the same time, the People were granted permission to file an amended "Petition in Paternity or Support Proceedings." In September 1967, a petition entitled "Amended Petition in Paternity Proceedings" was filed asking for a determination of parentage and support. In March 1968, this amended petition was dismissed without prejudice by the court on respondent's motion for the reason that the action was barred by the five year statute of limitation in the Code. 1967 Perm. Supp., C.R.S. 1963, 22-6-1(2).
A new action was initiated against respondent in May 1968, by the filing of a "Petition In Support Proceedings." Respondent sought unsuccessfully to enjoin, dismiss or quash this new petition. Respondent's demand for a jury trial was also denied. The hearing was eventually held in January 1970. After hearing the evidence, the court made a determination that the respondent was the father and continued the matter of support to a later date.
I.
Article 6 of the Code is entitled "Paternity Proceedings." This Article provides in Section 1:
"(1) Proceedings to establish the paternity of a child and to compel support * * *.
"(2) No proceedings 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."
Article 7 of the Code is entitled "Support Proceedings." 22-7-1 (1), (2) are as follows:
"(1) Proceedings to compel parents, including fathers of illegitimate children or other legally responsible persons, to support a child * * *.
"(2) A petition under this article may be filed at nay time prior to the eighteenth birthday of the child."
Relating these Code provisions to the petitions in this case, we find that the amended petition filed in September 1967 was an article 6 proceeding. The court dismissed this petition because, at that time, both children were over 5 years old and the statute of limitation had run. No appeal was taken from that judgment of dismissal. Therefore, the question of the validity of the statute of limitation and the issue of whether the respondent had contributed any support, thus making the statute of limitation inoperative, are not issues now before this court.
The new petition (May 1968) was filed as an Article 7 proceeding. In this support proceeding, the court proceeded to hold, in effect, a paternity hearing, thereby avoiding the five year statute of limitation which had barred such a hearing under the original petition.
[1] Every legislative act must be construed to effectuate, if possible, the intent of the law-making body. Waggener v. Holt Chew Motor Co., 130 Colo. 294, 274 P.2d 968.
[2] The court should attempt to determine the intent of the legislative body in an effort to arrive at the true meaning of a statute. Houston v. Symington Wayne Corp., 149 Colo. 332, 369 P.2d 424. In determining this intent the history of the statute is often helpful. Cass v. Dameron, 125 Colo. 477, 244 P.2d 1082. Historically, it is noted that before the enactment of the new Code, the old paternity proceeding (C.R.S. 1963, 22-6-1, et seq.) required that the issue of parentage had to be transferred up to the District Court for a jury trial. This proved to be a cumbersome and time consuming procedure and it became an accepted practice to determine a paternity issue in the juvenile court under the old Article 7 which was entitled, "Contributing to Dependency or Delinquency" and which also provided for the right to a jury trial.
The Colorado Legislative Council was directed to submit a report on laws relating to children. The "Proposed Colorado Children's Code" published in December 1966, was submitted to the 1967 Colorado General Assembly, and this Code, with modifications not material to this case, was adopted. This publication contains explanatory comments which are helpful. At page 4 of this report, it states:
"* * * The purpose of this revision is to provide a modern children's code which is designed to:
* * * *
"(8) replace the present archaic paternity and contributing proceedings with modern paternity and support laws." Proposed Colorado Children's Code, p. 4
Concerning the paternity proceedings under the old Article 6, and the proposed changes, the report states:
"The language and the remedies are venerable and Victorian, and have, in recent years largely been bypassed. The Contributing to Dependency and Delinquency statute 22-7-1, et seq.) although not intended for this purpose has been pressed into service, since it allows a civil hearing by the court having jurisdiction over other juvenile proceedings and is extremely broad in scope.
"The purpose of a paternity proceeding is to establish accurately the identity of the father of a child so that the responsibility for support of the child can be determined and support ordered. It is not and is not intended to be a general support statute. * * *" Proposed Colorado Children's Code, p. 152
In an apparent attempt to terminate the misuse of Article 7 as mentioned in the above quotation, the title of Article 7 was changed, its purpose limited and the right to a jury trial was eliminated. In regard to Article 7, the council report states:
"Article 7 provides for a simple civil proceeding requiring parents to support their children, as their means permit. Although orders of support are provided for in Chapter 22, in proceedings in neglect or dependency and also upon the determination of the paternity of a child, there are instances when the only issue is the amount of support which would be reasonable in the circumstances. * * *" Proposed Colorado Children's Code, p. 162 (Emphasis added.)
We have considered the cases cited by petitioner, particularly Wamsley v. People, 64 Colo. 521, 173 P. 425, Dikeou v. People, 95 Colo. 537, 38 P.2d 772, and Ortega v. Portales, 134 Colo. 537, 307 P.2d 193. We note that all of these cases were decided before the adoption of the new Code. Though they touch on some of the problems of a paternity action, the legislature has now changed, modified or reclassified the statutory paternity provisions which were considered in those cases.
[3] There is no ambiguity in the wording of Article 6 and 7. It is quite clear that paternity and support issues are to be determined under Article 6 and that Article 7 is to be used only the determination of support where paternity is not in dispute. It was error for the court to have conducted a paternity proceeding under the petition for "Support Proceedings," i.e., Article 7.
II.
Was the respondent entitled to a jury trial? The respondent was clearly entitled to a jury trial in a paternity proceeding. However, as petitioner points out, the respondent was not entitled to a jury trial under an Article 7 proceeding for support. This conflict only emphasizes the error of having allowed this matter to proceed under the wrong provision of the Code.
[4] It is true "that the juvenile court is a statutory court with no jurisdiction beyond that expressly given by statute." Maniatis v. Karakitsios, 161 Colo. 378 422 P.2d 52; Everett v. Barry, 127 Colo. 34, 252 P.2d 826. Therefore, we must look to the Code to determine the limitations, if any, in the use of juries in the juvenile court.
1967 Perm. Supp., C.R.S. 1963, 22-1-7 (1):
"Hearings shall be held before the court, without a jury, except as provided in section 22-1-6 (4). * * *"
(Emphasis added.)
1967 Perm. Supp., C.R.S. 1963, 22-1-6(4):
"(a) (i) A child, his parent or guardian, or any interested party may demand a trial by a jury of not more than six, or the court on its own motion may order such a jury to try any case:
"(ii) * * *
"(iii) In determining the paternity of a child under section 22-1-4 (1) (h)." (Emphasis added.)
In 1967 Perm. Supp., C.R.S. 1963, 22-1-4, we find the jurisdiction of the juvenile court spelled out, which includes:
(1) (h) To determine the paternity of a child and to make an order of support in connection therewith."
[5] Thus, we find that the respondent clearly has a statutory right to a jury trial in determining the issue of paternity. By exclusion, we find no right to a jury trial in a support hearing such as set forth in Article 7. A review of the former statutes, C.R.S. 1963, 22-6-1, et seq. and C.R.S. 1953, 26-6-1, et seq. reveals that the legislature has always provided for the right of a jury trial in a paternity determination and we find no cases, denying or qualifying this right. We hold that a putative parent is entitled to the right of jury trial in any proceeding in which there is a determination of paternity. It was error to have denied the respondent a jury trial.
The question of laches need not be determined in light of the disposition of the other alleged errors.
The judgment is reversed with directions to dismiss the petition with prejudice.
CHIEF JUDGE SILVERSTEIN AND JUDGE COYTE concur.