author: Judge DAVIDSON.

text:
    EAGLE PEAK FARMS, LTD., a Colorado limited partnership, and Prospect Valley Farms, Ltd., a Colorado limited partnership, Plaintiffs-Appellants, v. LOST CREEK GROUND WATER MANAGEMENT DISTRICT, a Colorado governmental subdivision and body corporate, Defendant-Appellee, and Lost Creek Land and Cattle Company, Interested-Party Defendant-Appellee.
    No. 98CA1518.
    Colorado Court of Appeals, Div. V.
    Sept. 30, 1999.
    As Modified on Denial of Rehearing Feb. 3, 2000.
    Certiorari Denied Aug. 21, 2000.

      White & Jankowski, LLP, Michael D. White; David C. Taussig; Sarah A. Klahn; and Austin C. Hamre, Denver, Colorado, for Plaintiffs-Appellants.
    Lind, Lawrence & Ottenhoff LLP, Kim R. Lawrence, P. Andrew Jones, Greeley, Colorado, for DefendanL-Appellee.
    Vranesh and Raisch, LLP, Michael D. Shimmin, Boulder, Colorado, for Interested-Party DefendanL-Appellee.
   Opinion by

Judge DAVIDSON.

Plaintiffs, Eagle Peak Farms, Ltd., and Prospect Valley Farms, Ltd., appeal from the district court’s dismissal of their appeal of the denial of their application for a change of water rights by defendant, Lost Creek Ground Water Management District (District). We reverse and remand for further proceedings. '

Plaintiffs filed an application for a change of water rights with the Colorado Ground Water Commission and the District. After a hearing, the District denied the application. Plaintiffs then filed a notice of appeal in district court. Although, pursuant to § 37-90—115(1)(b)(I), C.R.S.1999, plaintiffs personally served notice of the appeal within 30 days on defendant and 17 of the 20 defendants and interested-party defendants— those who had appeared and had been granted party status at the District’s hearing— they did not serve the other three interested parties in that time.

The District moved to dismiss the appeal on the grounds that the court lacked subject matter jurisdiction over the appeal and lacked personal jurisdiction over the three interested-party defendants who were served outside the 30-day period.

The district court dismissed the appeal finding that personal service of the notice of appeal within 30 days of the District’s decision was jurisdictional. The court determined that, because plaintiffs had not fulfilled this requirement, the court lacked jurisdiction to hear the appeal.

Because they asserted that this case involved water matters under the original jurisdiction of the supreme court, plaintiffs then filed a notice of appeal of the district court’s decision in the supreme court. However, agreeing with the District’s motion arguing that this case involved the interpretation of § 37-90-115, C.R.S.1999, that court transferred jurisdiction of the appeal to this court.

I.

Plaintiffs contend that the district court erred in dismissing their appeal for lack of subject matter jurisdiction for failure to serve timely three of the interested-party defendants. They argue that, although the filing of the notice of appeal with the district court is jurisdictional, once the notice is timely filed, the appeal has been perfected even though all interested parties may not have been served personally with such notice within 30 days. They further argue that, even if service is to be accomplished within 30 days, then service by mail should be sufficient notice under the statute.

The District, to the contrary, argues that notice of the appeal must be served personally upon all parties within the thirty days or the appeal must be dismissed for lack of subject matter jurisdiction.

We agree that subject matter jurisdiction for this appeal is invoked by the filing of a timely notice of appeal in the district court. We also conclude that the service of notice of the appeal requires personal service on all interested parties. However, we further hold that accomplishing personal service within thirty days is a procedural requirement, the violation of which does not mandate dismissal of the appeal.

A.

Statutes are to be construed to give meaning and effect to all the provisions. Martin v. Montezuma-Cortez School District RE-1, 841 P.2d 287 (Colo.1992).

The meaning to be given a statute is to be determined by the General Assembly's intent as expressed in the language used in the statute. The statute is to be considered as a whole, giving the words and phrases their plain and ordinary meaning. See Bertrand v. Board of County Commissioners, 872 P.2d 223 (Colo.1994).

Under § 37-90-181(1)(c), C©.R.8.1999, judicial review of water management district decisions is governed by the standards for review of water commission board and state engineer decisions as set forth under $ 37-90-115, C.R.8.1999.

Section 87-90-115(1)(a), C.R.S.1999, provides that such appeal is to be taken in the district court in the county where the water rights or wells involved are situated. See North Kiowa-Bijou Management District v. Ground Water Commission, 180 Colo. 318, 505 P.2d 377 (1973).

And, under § 37-90-115(1)(b)(ID):

The notice of such appeal shall be served by the appellant upon the state engineer or the commission and all interested parties within thirty days after the notice of such decision or act and, unless such appeal is taken within said time, the action ... shall be final and conclusive.

Section 87-90-115(1)(b)(I1), provides further that: C.R.8.1999,

Notice of such appeal, proof of service, and docketing of the appeal in the district court shall be accomplished in the same manner as any other civil suit originally commenced in the district courts of this state.

Because the plain language of $ 37-90-115 provides that appeals are to be conducted in the same manner as other civil suits filed in the district court, we look to the rules of civil procedure for guidance in determining the intent and meaning of these statutes. See R.E.N. v. City of Colorado Springs, 823 P.2d 1359 (Colo.1992) (statutes concerning the same subject matter to be read in pari mate-Tid).

B.

Subject matter jurisdiction concerns those categories of actions which a court is empowered by the constitution or statute to adjudicate and those remedies it is authorized to grant. Hoyman v. Coffin, 976 P.2d 311 (Colo.App.1998). Such jurisdictional requirements, established by the constitution or statute, are those necessary to invoke the jurisdiction of the court. Subject matter jurisdiction cannot be waived. Nguyen v. Swedish Medical Center, 890 P.2d 255 (Colo. App.1995).

On the other hand, procedural requirements are those which facilitate the proceedings before the court. Onee a court's subject matter jurisdiction properly is invoked, a party's failure to comply with a procedural requirement may justify the court's dismissal of an action within its discretion, but such failure does not divest the court of such jurisdiction. See Hawkins v. State Compensation Insurance Authority, 790 P.2d 898 (Colo.App.1990) (defect in document timely filed does not deprive appellate court of jurisdiction); Katz Park Avenue Corp. v. Olden, 158 Misc.2d 541, 601 N.Y.S.2d 757 (N.Y.City Civ.Ct.1993) (procedural defect may result in dismissal but not for reason of subject matter jurisdiction).

As a general rule, the filing of a complaint gives a court subject matter jurisdiction over the plaintiff and the action. C.R.C.P. 8; Nelson v. District Court, 136 Colo. 467, 320 P.2d 959 (1957).

Here, under §§ 37-90-115(1) and 37-90-131(1)(b), C.R.S.1999, any party adversely affected or aggrieved by a decision of a water management district board must take an appeal within 30 days of the board's decision or the decision becomes final and unreviewable. An appeal is commenced by the timely filing of the notice of appeal. See CAR. 3(a) (appeal is "taken by filing" notice of such appeal).

We conclude that, similar to the commencement of an action under C.R.C.P. 8, it is the timely filing of the notice of appeal which invokes the court's subject matter jurisdiction. And, because plaintiffs filed their notice of appeal within 30 days of the Dis-triect's decision, the district court had subject matter jurisdiction over the appeal.

This result also is consistent with the result we would reach if we were to follow the rules of appellate practice as urged by plaintiffs.

An appeal is commenced and jurisdiction is invoked by the filing of a notice of appeal with the clerk of the appellate court. C.A.R. 3; Molitor v. Anderson, 795 P.2d 266 (Colo.1990) (appeal of trial court's judgment is perfected by filing timely notice of appeal).

Similarly, because plaintiffs filed the notice of appeal timely with the district court, the court had subject matter jurisdiction over the appeal.

C.

C.R.C.P. 4 requires personal service of the pleading that commences an action in the district court. We conclude that, similarly, the notice of appeal from a decision of the District is to be served personally and, in accordance with the statute, such service is to be effected within 30 days of the District's decision. Here, as discussed, three of the parties were not personally served within the 80-day period.

However, contrary to the District's contention, such failure to obtain proper service, although relevant to whether there is personal jurisdiction over a particular party, does not require the dismissal of the action itself for lack of subject matter jurisdiction. Fletcher v. District Court, 137 Colo. 143, 322 P.2d 96 (1958); see also Samsonite Corp. v. Industrial Commission, 665 P.2d 1037 (Colo.App.1983) (failure to effect service on defendant did not divest appellate court of jurisdiction which attached upon filing of petition for review); cf. MacMillan v. Bruce, 900 P.2d 131 (Colo.App.1995) (court notes that plaintiff could have commenced suit by timely filing complaint without service on defendant).

Rather, language in a statute requiring that a particular procedure be followed, such as the requirement here that service be accomplished within 830 days, does not amount to a subject matter jurisdictional requirement unless it is clear that the General Assembly so intended it. See In re Marriage of Helmich, 937 P.2d 897 (Colo.App.1997).

Here, the language of the statute expresses the General Assembly's intent that an appeal must be commenced in a timely fashion. However, by providing for service to be accomplished according to the rules of civil procedure, the plain language of the statute reflects that it is service upon all proper and necessary parties, rather than the timing of such service, that is necessary to perfect an appeal. See also Nelson v. Blacker, 701 P.2d 135 (Colo.App.1985) (once a complaint is filed, the only time requirement for service of the complaint under C.R.C.P. 8(a) is reasonableness).

Further, C.R.C.P. 4(g) allows a party to obtain service by mail or publication if it can be shown that personal service cannot be made.

Accordingly, because the 30-day service of notice requirement is procedural and not a requirement of subject matter jurisdiction, plaintiffs' failure to so serve the three parties does not require dismissal on this ground. See People in Interest of Clinton, 762 P.2d 1381 (Colo.1988) (onee court has obtained subject matter jurisdiction, later failure to follow statutory requirements does not divest court of jurisdiction); In re Marriage of Helmich, supra (failure to provide notice of contempt hearing to district attorney is harmless error in absence of showing of prejudice to parties).

However, failure to follow procedural requirements may be grounds for dismissal if properly raised by the opposing party. Cf. Moses v. Moses, 180 Colo. 397, 505 P.2d 1302 (1973) (although unjustified delay in complying with procedural requirements is not to be condoned, strict technical application of time requirements should not be applied if such would result in arbitrary denial of substantial justice).

The purpose of requiring notice of a proceeding to an adverse party is to allow the parties an adequate opportunity to prepare for the proceedings. See Danielson v. Jones, 698 P.2d 240 (Colo.1985) (compliance with statutory provisions necessary to provide meaningful opportunity to respond).

Here, we note that the three parties were joined in the original proceeding and named in the notice of appeal. The parties have not asserted that they have been prejudiced by plaintiffs' failure to serve them within the 30 days required. Indeed, all parties have participated or have been represented in all stages of the proceedings. Further, according to plaintiffs, all the parties to the appeal now have been served personally.

Thus, to the extent that the court dismissed plaintiffs' appeal on the ground that it lacked subject matter jurisdiction for lack of personal service within 30 days, that determination was in error. However, as discussed, the trial court, in the exercise of its discretion, can nevertheless dismiss the appeal for failure to comply with the procedural requirements set forth in the statute.

Accordingly, the case must be remanded for a hearing to determine whether plaintiffs' failure to serve all parties personally in a timely manner is sufficient cause for dismissal of the appeal. At such hearing, the court should consider the reasons for the delay, whether the parties actually were served, and whether the delay prejudiced the parties in preparing for the appeal. Cf. Nelson v. Blacker, supra (trial court has discretion to dismiss a complaint for failure to prosecute).

D.

The District argues nevertheless that, because plaintiffs failed timely to serve three of the parties, the appeal should have been dismissed for failure to join indispensable parties. In raising this argument the District again relies on the lack of personal service on three parties as revealing a failure to join indispensable parties which necessitates dismissal of plaintiffs' appeal. We are not persuaded.

Section 24-4-106, C.R.S.1999, sets forth the general procedures for review of an agency action. Such procedures also may be more specifically governed by those set forth by the agency.

Under § 24-4-106(4), C.R.S.1999; "[Aln action shall not be dismissed for failure to join an indispensable party until an opportunity has been afforded to an affected party to bring the indispensable party into the action."

Although § 87-90-115 requires service within 30 days of the District's decision, it is silent as to the consequence for a failure to join an indispensable party. Therefore, because § 24-4-106(4) allows for the opportunity to correct a failure to join an indispensable party, failure to obtain service on an indispensable party within 30 days also does not mandate dismissal.

II.

Lost Creek Land and Cattle Company (Lost Creek), an interested-party defendant, argues that plaintiffs' service on it of the notice of appeal filed in district court after the filing of the notice of appeal in the supreme court is ineffective. We disagree.

Once an appeal is taken, the district court is divested of authority to consider substantive matters that directly affect the judgment being appealed. See Molitor v. Anderson, supra.

After filing the notice of appeal in the supreme court on July 8, 1998, plaintiffs served Lost Creek on August 8, 1998, with notice of the appeal that previously had been filed in district court. Lost Creek moved, in district court, to quash service of the notice of the underlying action on the ground that, because the filing of a notice of appeal removes jurisdiction of the case from the district court, service of the notice can no longer be accomplished. The district court, finding that it lacked jurisdiction to rule on the motion, dismissed it. Lost Creek also filed this motion with this court.

However, plaintiffs' service of the notice of appeal on Lost Creek did not require the district court to act, nor did it act. Rather, plaintiffs simply accomplished service they had previously attempted.

~ The judgment of dismissal is reversed and the cause is remanded for further proceedings consistent with the views expressed herein.

Judge TAUBMAN and Judge KAPELKE concur.


source: Caselaw Access Project

author: Judge TAUBMAN. Judge ROTHENBERG

license: Public Domain

text:
    In re the MARRIAGE OF Donald R. SMITH, Petitioner-Appellee, and Loretta Ruth Smith, Respondent, and Concerning Charles Ames, Third-Party Respondent-Appellant.
    No. 97CA2202.
    Colorado Court of Appeals, Div. V.
    Oct. 28, 1999.
    As Modified on Denial of Rehearing Feb. 3, 2000.

    Certiorari Denied Aug. 7, 2000.

      Drummond, Dougherty & Schwartz, P.C., Donald G. Drummond, Larry C. Schwartz, Pueblo, Colorado, for Appellee.
    No Appearance for Respondent.
    Law Offices of J.E. Losavio, J.E. Losavio, Jr., Pueblo, Colorado, for Third-Party Respondent-Appellant.

       Rothenberg, J., would grant.

       Justice KOURLIS would grant as to the following issues:
      Whether the court of appeals erred in deciding that the trial court could order the father to pay child supportt prior to the date thet theactiob for child support was filed.
      Whether the court of appeals erred in deciding that the father had a duty to pay child support to the time that he had knowledge of the fact that he was the father.
      Whether the court of appeals erred in deciding that the husband was not estopped from claiming reimbursement of child support from the father by the husband's standing as father of the children, and receiving the benefits of fatherhood. Whether the husband's action for reimbursement is barred by the statute of limitations..
      Whether the court of appeals erred in deciding that the trial court could base the amount of reimbursement of child support to the husband from the father on the support guidelines contained in C.R.S. § 14-109-115(10), without consideration of the relevant factors stated in C.R.S. § 19-4-116(6).
      Whether the trial court erred in awarding attorney fees to the husband against the father, and the costs of husbands's genetic tests.

   Opinion by

Judge TAUBMAN.

In this action for retroactive payment of child support, third-party respondent, Charles Ames (father), appeals the order of the trial court awarding money damages to Donald Robert Smith (husband) as reimbursement for his past support of the children of father and Loretta Ruth Smith (wife). We affirm.

This third-party proceeding arose under the Uniform Parentage Act (UPA), § 19-4-101, et seq., C.R.8.1999, in connection with the dissolution of the marriage of husband and wife. Husband petitioned the court for a declaration as to his paternity of the three minor children born during the marriage. As grounds, husband claimed to be the children's natural father, but averred that wife had informed him that all three of the children were fathered by another man. Thereafter, wife named respondent as the putative father and requested that he be joined as a party. The court granted the wife's request.

Shortly after wife filed her motion to join father, husband filed a motion seeking reimbursement of past child support from the father or any other individual ultimately determined to be the children's biological father. Husband sought to be reimbursed for child support in an amount equal to his contributions toward the cost of raising the children since their birth Husband's motion remained pending while the parties and the children received genetic testing. The test results established the biological paternity of father.

The trial court then considered the merits of husband's motion for reimbursement and determined that he could recover the support he had previously provided to father's children. After an evidentiary hearing, the court entered an additional order finding that husband's claim of reimbursement was timely under the general two-year statute of limitations set forth in § 13-80-102(1)@), C.R.S. 1999, and that he was entitled to receive an award for $19,929.40 as damages. That amount was determined based on application of the child support guidelines and husband's testimony concerning his actual expenses in raising the children. The court also awarded attorney fees to husband in the amount of $3,436, as well as his costs for the genetic testing.

I. Statute of Limitations

In challenging the court's rulings, father first contends that husband failed to file his claim within the two-year limitations period provided by § 18-80-102(1)(i). We conclude that husband's claim was timely.

Father maintains that husband's claim is subject to the general two-year limitations provision which applies to actions not governed by a specific limitations period. Inasmuch as the parties have not raised the applicability of any other statutes of limitations, such as those provided in the UPA, we consider only whether husband's action survives the application of the two-year limitations provisions. See D'Amico v. Smith, 42 Colo. App. 869, 600 P.2d 84 (1979) (application of a statute of limitations that is not pled is waived).

The commencement of the statutory period for filing the claim at issue here depends upon when the action acerued pursuant to § 183-80-108(8), C.R.9S.1999, which provides that:

A cause of action for losses or damages not otherwise enumerated in this article shall be deemed to accrue when the injury, loss, damage, or conduct giving rise to the cause of action is discovered or should have been discovered by the exercise of reasonable diligence.

The rule of discovery, as this test is generally known, involves an inquiry into when the party bringing the action acquired knowledge of or should have reasonably discovered the essential facts, rather than the applicable legal theory. See Trimity Broadcasting of Denver, Inc. v. City of Westminster, $48 P.2d 916 (Colo.1993); Winkler v. Rocky Mountain Conference of Umited Methodist Church, 923 P.2d 152 (Colo.App. 1995).

Only when the evidence clearly shows that a party's discovery of the pertinent facts occurred or should have occurred upon a particular date can the issue be decided as a matter of law. Gavend v. Mailman, 946 P.2d 558 (Colo.App.1997). Otherwise, such issue presents a question of fact. Winkler v. Rocky Mountain Conference of United Methodist Church, supra.

Here, the court found that wife had informed husband he was not the natural father of the children in October 1998 and that, prior to that time, he believed he was their biological father and had no reason to think otherwise. The court also found that husband initially attributed wife's claim to her anger concerning the dissolution of marriage. The testimony in the record supports these findings.

Further, it is undisputed that husband did not know of father's identity until wife named him in her motion to join father as a third party. The trial court relied upon that fact to determine that husband's cause of action did not accrue until that motion was filed in April 1994.

Although father contends that husband did not bring this action until he submitted his trial brief on July 22, 1997, the record shows that his initial motion requesting reimbursement of paid child support was filed on May 3, 1994, well within the asserted two-year period. Therefore, we conclude that the trial court properly determined that husband's claim was not barred under the general two-year statute of limitations.

II. Retroactive Child Support

Father next contends that the UPA does not permit the collection of child support retroactively. We disagree.

Although proceedings to establish and enforce child support obligations operate only prospectively under the Uniform Dissolution of Marriage Act, § 14-10-101, et seq., C.R.S. 1999, the UPA vests authority and jurisdiction in the trial court to permit the recovery of past child support. In re Custody of Garcia, 695 P.2d 774 (Colo.App.1984). See also People in Interest of LW., 756 P.2d 392 (Colo. App.1988)(the question of child support in a paternity proceeding involves both past and future support).

As § 19-4-116(8)(a), C.R.S.1999, provides, a judgment or order determining paternity "may contain any other provision directed against the appropriate party to the proceeding concerning the duty of support, the recovery of child support debt pursuant to section 14-14-104 ... or any other matter in the best interest of the child." Section 19-4-116(4), C.R.8.1999, further provides, in pertinent part:

The court ... may enter an order directing the father to pay for support of the child, in an amount as may be determined by the court ... to be reasonable under the circumstances, for a time period which occurred prior to the entry of the order establishing paternity. The court may limit the father's liability for past support of the child to the proportion of the expenses already incurred that the court deems just. (emphasis added)

Father argues that the reference in § 19-4-116(8) to § 14-14-104, C.R.9.1999, which concerns child support debt based upon prior payments of public assistance, restricts the right to obtain reimbursement for past child support to county departments of social services. We are not so persuaded. Statutes must be given effect according to their plain and ordinary meaning. People in Interest of R.T.L., 780 P.2d 508 (Colo.1989).

No reference to § 14-14-104 appears in § 19-4-116(4), and that provision does not contain any language that limits the right of reimbursement to governmental entities. In fact, the supreme court has recognized that the right to obtain past support may be asserted by the mother of the child. See People in Interest of A.A.T, 191 Colo. 494, 554 P.2d 802 (1976). Moreover, this court has previously determined that the discretion to reduce a father's Hability applies only to the reimbursement of past support provided by a child's custodian and not to an award under § 14-14-104, which, pursuant to the dictates of the version of that statute, as it existed before 1998, could equal or exceed the amount of public assistance paid. See People in Interest of A.AV., 815 P.2d 997 (Colo.App.1991). Consequently, the interpretation urged by father would render superfluous the specific power granted the court in § 19-4-116(4) to limit a father's liability for past support.

Also, a plain reading of the clauses of § 19-4-116, C.R.S.1999 quoted above indicates that the statute was intended to give trial courts broad discretion in enforcing it. These clauses vest the trial court with broad discretion concerning the establishment of liability for and the amount of retroactive child support.

Our conclusion that a father may be required to pay child support retroactive to the birth of the child under the UPA is consistent with the result reached by courts in other jurisdictions.

Interpreting the Wyoming equivalent of § 19-4-116(8)(a), the Wyoming Supreme Court held in Ellison v. Walter ex rel. Walter, 834 P.2d 680 (Wyo.1992) that a trial court possesses the authority to issue support orders retroactive to the date of a child's birth in paternity/support actions initiated by a state social services agency for the reimbursement of public assistance. The Ellison court also determined that retroactive child support orders should be the rule, rather than the exception. Nothing in the analysis by the Ellison court limits its holding to cireumstances in which a state is seeking reimbursement of public assistance.

The Ellison court reasoned that, because the Wyoming statute allowed a trial court to "reach back to expenses incurred during the mother's pregnancy and confinement," it followed logically that a trial court should have the authority to provide for expenses incurred to support a child who resulted from the pregnancy. Ellison v. Walter ex rel. Walter, supra, 834 P.2d at 684.

Here, § 19-4-116(8)(a) coritains identical language concerning the payment for the mother's "pregnancy and confinement," and thus, we agree with the Ellison court's reasoning. See also J.A.W. v. D.M.E., 591 A.2d 844 (D.C.App.1991) (allowing award of retroactive child support to mother); Mason v. Reiter, 564 So.2d 142 (Fla.App.1990) (no abuse of discretion to order retroactive support to mother, even where mother did not request such support); Weaver v. Chester, 195 Ga.App. 471, 393 S.E.2d 715 (1990) (father liable to mother for child support for period prior to paternity adjudication, during which time mother had supported child without the benefit of public assistance); State ex rel. Coleman v. Clay, 805 S.W.2d 752 (Tenn.1991) (under statute similar to § 19-4-116(8)(a), juvenile court had discretion to order retroactive support back to date of child's birth).

Other courts have similarly held that a father may have a duty to reimburse a stepparent who provides support for a child during the period in which paternity has not been established.

In Mougey v. Salzwedel, 401 N.W.2d 509 (N.D.1987), in a situation factually similar to the one before us, the court held that the stepfather had a cause of action against the natural father for reimbursement for support. See also Richard P. v. Superior Court, 202 Cal.App.3d 1089, 249 Cal.Rptr. 246 (1988) (allowing cause of action for reimbursement of out-of-pocket expenses by stepfather where stepfather believed that he was natural father of children).

In Anonymous Wife v. Anonymous Husband, 153 Ariz. 573, 739 P.2d 794 (1987), the court held that the biological father had an obligation to support the child even where the husband was aware that the child was not his, but nonetheless elected to support the child. The court reasoned that the law implies a promise by the irresponsible parent to reimburse those who provide support for the child. See also Stat v. Porter, 314 A.2d 172 (Del.1973) (allowing stepfather a cause of action for reimbursement against natural father where stepfather was aware that children were not his biological children). But cf. Drescher v. Morgan, 251 S.W.2d 173 (Tex.Civ.App.1952) (stepfather not entitled to reimbursement from biological father where stepfather knew he was not biological father and elected to support child).

To the extent that father argues that husband was the presumed father of the children, and thus should not be entitled to reimbursement for past child support, father did not raise that argument until his reply brief in this appeal. Therefore, such argument is not properly before this court, and we do not address it. See People v. Czemerynski, 786 P.2d 1100 (Colo.1990) (issue not properly before the court where defendant did not raise the argument at trial or in the opening brief, but raised it for the first time only in the reply brief).

We thus conclude that an action for reimbursement of child support expenses incurred by husband from the dates of each child's birth may be brought by husband under the UPA.

III. Due Process

Father additionally contends that requiring him to pay retroactive child support deprives him of due process because he lacked notice of his paternity prior to his joinder in these proceedings. We also reject this contention.

Because father's argument appears to be predicated upon both procedural and substantive due process, we address both contentions.

Procedural due process involves the manner in which state action occurs and requires notice and an opportunity for a hearing. People v. Garlotte, 958 P.2d 469 (Colo.App.1997). Substantive due process, in turn, prohibits the government from engaging in conduct which is arbitrary, capricious, or irrational, regardless of the procedures used to implement it. Sundheim v. Board of County Commissioners, 904 P.2d 1337 (Colo.App.1995).

Father's procedural due process argument is predicated on his contention that, because he lacked notice of his paternity prior to the commencement of these proceedings, he lacked notice and an opportunity to be heard for purposes of procedural due process. In making such argument, however, father confuses the element of "notice" contained in the requirements for procedural due process with his alleged lack of notice of paternity. The requirement of notice under the test for procedural due process is that of being provided with actual knowledge that a governmental entity or official intends to take some action against an individual or entity to terminate or limit a property or liberty interest.

Here, father concedes that he was provided with notice of these proceedings and, within these proceedings, afforded an opportunity to dispute husband's contention that he could be ordered to pay retroactive child support. Accordingly, there is no basis for father's procedural due process argument.

Rather, father's argument is more properly characterized as a substantive due process contention that he was deprived of fundamental fairness by the court's imposition of liability on him for retroactive child support before he was aware that he was the biological father of the children.

For government action to violate substantive due process, it must be arbitrary, capricious, or irrational such that no articulated basis for the decision bears any rational relationship to a legitimate governmental interest. See Sundheim v. Board of County Commissioners, supra. Such is not the case here.

In considering a constitutional challenge to the statutory predecessor to § 19-4-116, the supreme court, in People in Interest of S.P.B., 651 P.2d 1213, 1217 (Colo.1982), articulated the governmental interests in obtaining child support from parents pursuant to the Uniform Parentage Act, stating that:

The statutory presumption of a shared parental obligation of child support protects three critical interests: the interest of the child in receiving adequate support, the interest of the state in ensuring that children not become its wards, and the interest of the parents in being free from governmental intrusion into the intimate sphere of family life.

See Abrams v.. Connolly, 781 P.2d 651 (Colo.1989) (child has legal right to support from both parents, and both parents have a continuing duty to provide reasonable support until child's emancipation).

In light of these governmental interests, it cannot be said that the application of § 19-4-116 to father violated his right to substantive due process.

IV. Equitable Estoppel

We also reject father's argument that the doctrine of equitable estoppel precludes husband from bringing his claim for reimbursement.

The party asserting an estoppel claim must demonstrate that he or she reasonably relied to his or her detriment upon the acts or representations of the other person and that he or she had no knowledge or convenient means of knowing the facts. In re Marriage of Dennin, 811 P.2d 449 (Colo.App.1991). Ordinarily, the doctrine will be applied only in certain limited circumstances such as uncompleted adoption proceedings. In re Marriage of Barone, 895 P.2d 1075 (Colo.App.1994).

Here, despite father's claim that husband knew his paternity of the eldest child was questionable prior to marrying wife, husband testified to the contrary. Further, father claimed no reasonable reliance other than his ignorance. Nothing in the record indicates that husband affirmatively led father to believe he was relieved of any duty to support the children. Consequently, we conclude the trial court properly determined that husband was not equitably estopped from seeking reimbursement of his child support expenses. See Mougey v. Salzwedel, supra (estoppel not applicable in situation where stepfather seeks reimbursement for support from natural father because stepfather was unaware that child was not his biological child).

V. Application of Child Support Guidelines

Finally, father asserts that the trial court erred in determining the amount of damages by basing its decision on the child support guidelines set forth in § 14-10-115, C.R.S.1999, and on husband's testimony. Again, we disagree.

A party cannot recover damages which are uncertain or speculative. Nelson v. Lake Canal Co., 644 P.2d 55 (Colo.App.1981). However, a party need not prove damages with mathematical certainty. A monetary award of damages may be based upon evidence which is sufficient to allow the trier of fact to determine an amount which will adequately compensate a party. See Great West Food Packers, Inc. v. Longmont Foods Co., 636 P.2d 1331 (Colo.App.1981).

Here, the trial court concluded that the fact of damages was certain. There was no dispute that husband and mother had supported the children from their birth through November 1998, and it was also not disputed that father had not supported the children during this period.

Accordingly, husband sought to be reimbursed for his actual expenses in raising the three children. In support of his claim for damages, he presented evidence, through an expert, of his income and that of his wife during the relevant period. His expert used this information to determine the amount of child support for which husband would have been liable pursuant to the child support guidelines had he been required to pay child support. Also, husband testified about the cost of raising the children during the relevant period.

The trial court concluded that both the child support guidelines and husband's testimony regarding the cost of raising the children were reasonable bases for estimating the amount of damages here. Accordingly, after concluding that husband had contributed approximately fifty percent of the cost of raising the children, the trial court averaged the amounts derived from the child support guidelines and from husband's testimony and concluded that the amount of damages to be awarded to husband was $19,929.

We agree that use of the child support guidelines was an appropriate method to determine a reasonable amount of husband's damages. See §§ 19-4-129 and 19-4-116(6)(k), C.R.S.1999 (child support guidelines apply to child support obligations established or modified in proceedings under the UPA). We also agree with the trial court that husband's testimony and documentary proof as to his and wife's respective incomes and expenses were adequate evidence to support the trial court's calculation of damages.

Finally, we note that, although § 19-4-116(4) provides that "the court may limit the father's liability for past support of the child to the proportion of the expenses already incurred that the court deems just," father does not argue on the basis of this statute or a disparity in income of the parties that he should have been liable for a lesser amount of damages. See e.g., J.A.W. v. D.M.E., supra (father not required to reimburse mother for unreasonable expenses such as birthday party with 65 guests, or trip to Disneyland).

Moreover, to the extent that father contends that the amount of damages should have been lower based upon the doctrine of equitable estoppel, we have concluded that the trial court properly rejected such argument. To the extent that father relies upon the doctrine of unjust enrichment for his contention, the trial court rejected his contention and father does not raise this issue on appeal.

The order is affirmed.

Judge ROY concurs.

Judge ROTHENBERG concurs in part and dissents in part.

Judge ROTHENBERG

concurring in part and dissenting in part.

I agree with the majority's conclusion that § 19-4-116(4), C.R.8.1999, authorizes a trial court to direct a child's father to reimburse another for past support of the father's children, and that it is within the court's discretion to determine the amount of that support. This is based upon the longstanding principle that parents have a duty to support their children.

However, because I conclude that the trial court's ruling was based on an incorrect premise, I would reverse the judgment and remand for another hearing on the reimbursement issue. That premise-posited by Donald R. Smith at trial, in this appeal, and accepted by the trial court in its order-was that Smith himself owed no duty of support to the children.

Smith does not dispute that he was legally married to the mother when all three children were born, and therefore, was their presumed father. See § 19-4-105(1)(a), C.R.S.1999. It is also undisputed that he was listed as the father on the children's birth certificates; he acted in loco parentis to them during the marriage; he exercised all the rights, duties, and obligations of a father; and because the children viewed him as their father, he was a psychological parent and the nurturing male figure in the children's lives.

Thus, Smith was in all respects a parent to the children until the court declared him otherwise. He had a legal right to their income, if any such existed, and to compensation in the event that they were injured by a tortfeasor. As the presumed father, he also had a legal duty to support and nurture them.

Nevertheless, Smith maintains that once Charles Ames' paternity was established by scientific testing and that Ames was declared to be the biological father by the court, Smith's previous status as the presumed father-with all of its attendant rights and obligations-vanished retroactively. Not only does Smith assert that his duty to support the children became void ab iwifio, he also contends he is entitled to his money back, that is, reimbursement from Ames for all of Smith's expenditures for the children from birth. This issue has major ramifications for Colorado's children, and I respectfully disagree that it should be resolved in this manner.

The Uniform Parentage Act, § 19-4-101, et seq., C.R.S8.1999 (UPA) and Colorado pub-lie policy accord a strong presumption of legitimacy to children born in wedlock. In fact, the right of a presumed father to challenge paternity pursuant to the UPA must be exercised within strict statutory time limits or it is lost, whatever the results of the scientific tests regarding paternity. See § 19-4-107(1)(b), C.R.S.1999 (an action to disestablish paternity of a presumed father cannot be brought later than five years after a child's birth).

Here, even after the dissolution was filed and the trial court had declared Ames to be the biological father, Smith's lengthy relationship with the children gave him standing under the Uniform Dissolution of Marriage Act to pursue custody or parenting rights of the children. See In re Custody of A.D.C., 969 P.2d 708 (Colo.App.1998) (§ 14-10-128(1)(b), C.R.S.1999 permits the non-parent to commence custody proceeding while the child is in that person's physical custody and § 14-10-128(1)(c), C.R.S.1999, permits the proceeding to be commenced up to six months after physical custody has terminated); In re Marriage of Dureno, 854 P.2d 1352 (Colo.App.1992).

This standing is based on the recognition that one who performs the role of a parent, such as a stepparent, foster parent, grandparent, or other nurturing figure, may become a child's psychological parent and is entitled to certain rights that historically have been conferred only on biological parents. See In re Custody of C.C.R.S., 892 P.2d 246 (Colo.1995)(upholding trial court's determination that it was in child's best interests to remain in custody of psychological parents, rather than to have custody transferred to biological mother).

It is true that following the test results and the court order declaring Ames to be the biological father, Smith's status as the children's presumed father was rebutted, and Smith could ask to be relieved of future obligations with respect to the children. In this respect, the status of a custodian, stepparent, or other similarly situated person differs from that of a biological or adoptive parent because one standing in loco parentis may elect to be relieved of that status and the attendant obligations. See People in Interest of P.D., 41 Colo.App. 109, 580 P.2d 836 (1978); H. Clark, Domestic Relations § 6.2 (1968).

Nevertheless, the fact that Smith asked to be, and was, relieved of future parental obligations did not, in my view, invalidate ab initio the duties arising from his previous legal status. Rather, I conclude that both Smith and Ames owed separate duties of support to the children which arose on their dates of birth. Smith's duty only ended when Ames' status as the biological father was declared, and when Smith's duty was terminated by the court at his request.

In sum, I agree with the majority that once Ames was determined to be the biological father, the trial court had authority under the statute to order him to pay child support "for a time period which occurred prior to the entry of the order establishing paternity." Section 19-4-116(4), C.R.8.1999.

I also agree that the statute gives the court discretion to require Smith to reimburse Ames, based on equitable principles, "the proportion of the expenses already incurred that the court deems just." Section § 19-4-116(4). But, I would hold that this determination may only be made after considering the cireumstances of all three parties who had a duty of support prior to the declaration of paternity: Smith, Ames, and the mother. See § 19-4-116(6), C.R.S.1999 (listing relevant factors to determine amount to be paid by "a parent" for the support of the child). It may not be based on the assumption that Smith's duty of child support was rendered void ab imifio by the court's declaration of Ames' paternity.

For this reason, I would reverse the judgment and remand for reconsideration of the reimbursement order.


author: Judge TAUBMAN.

text:
    The PEOPLE of the State of Colorado, Petitioner-Appellee, J.A.E.S. by S.M., next friend, Child, and J.J.H., Obligor, Respondent-Appellant.
    No. 99CA0572.
    Colorado Court of Appeals, Div. III.
    Feb. 3, 2000.
    As Modified on Denial of Rehearing July 6, 2000.

      Frank James Saccomanno, Rita M. Con-nerly, Adams County Attorneys Office, Denver, Colorado, for Petitioner-Appellee.
    J.J.H., Pro Se.
   Opinion by

Judge TAUBMAN.

J.J.H. (father) appeals the judgments establishing paternity and determining child support and arrearages. We affirm in part, reverse in part, and remand for further proceedings.

The People, through the Adams County Delegate Child Support Enforcement Unit, filed a petition for determination of paternity and issuance of an order requiring the payment of child support and a child support debt concerning J.A.E.S. (child). The petition was filed in September 1994 and served on father in Denver, Colorado. This apparently occurred after he was released from federal prison, where he had been serving a sentence since 1985. The petition sought reimbursement of the amounts of public assistance paid to the child's mother between 1985 and 1995, an order to establish retroactive child support from the child's birth in 1981 until May 1995, and an order for ongoing, or current, child support.

In June 1996, a summary judgment was entered declaring J.J.H. to be the biological father of the child. A child support judgment was entered in July 1998, nune pro tune to June 1996, for ongoing child support of $248 per month and a $12,907.50 judgment for child support arrearages calculated from the child's birth in November 1981 until May 1995. No prior child support orders had been entered.

A prior appeal filed by father in October 1996 was dismissed without prejudice for lack of a final order.

I. Personal Jurisdiction

Relying on § 19-4-109(2), C.R.S.1999, father first asserts that the trial court lacked personal jurisdiction over him since the child was not conceived by acts of sexual intercourse in the state of Colorado. We disagree.

Personal service upon a natural person within the forum state enables that state to exercise personal jurisdiction over the party served and satisfies due process requirements. Burnham v. Superior Court, 495 U.S. 604, 110 S.Ct. 2105, 109 LEd.2d 631 (1990); In re Custody of Nugent, 955 P.2d 584 (Colo.App.1997).

Here, father was served in the state of Colorado, where both mother and the child resided. Accordingly, the court had personal jurisdiction to determine the issues of paternity and child support, even if father did not have sexual intercourse in Colorado to conceive the child so as to afford personal jurisdiction under § 19-4-109(2).

II. Retroactive Child Support

Father also asserts that the trial court's order of retroactive child support is defective because the court did not adequately consider his past and current familial obligations. We agree in part.

Generally, proceedings to establish and enforce child support obligations operate prospectively from the date of commencement of support proceedings. However, in an action under the Uniform Parentage Act, a court may determine liability and enter orders for reimbursement of past support provided by the custodian to the child. In re Marriage of Smith, 7 .P.8d 1012 (Colo.App. 1999); People in Interest of AA.V., 815 P.2d 997 (Colo.App.1991).

The child support debt must be based on the amount of child support due under the current child support enforcement guidelines then in effect multiplied by the number of months the family received public assistance. Also, the total amount of child support debt shall not exceed the total amount paid through public assistance. Section 14-14-104(1)(b), C.R.S8.1999.

Thus, under § 14-14-104(1)(b), an obligor is liable to the county department of social services (department) for an amount not exceeding the full amount of public assistance paid during the period when no order for child support existed. This provision may expose a responsible parent who had not been subject to an initial order to the same liability that would have resulted if there had initially been a court order directed to that parent pursuant to § 14-14-104(1)(a), C.R.S. 1999. Cf. In re Marriage of Ward, 856 P.2d 67 (Colo.App.1993) (under prior version of § 14-14-101(1)(b), court must establish child support debt in an amount equal to or greater than the amount of public assistance paid).

The parent's financial resources, including current child support obligations, are pertinent in devising a schedule for repay ment of the public assistance debt, and the trial court may order that such payment commence after the obligation to pay current child support has expired. In re Marriage of Ward, supra.

Here, the department calculated the ongoing monthly support after applying the child support guidelines to the income of the parents based upon Department of Labor and Employment printouts. This method is authorized by statute. See §§ 14-10-115(7)(c) and 19-4-116(6)(k), C.R.S8.1999. The judgment for arrearages was based upon $9,722.50 in public assistance that was actually received by mother from March 1985 through May 1995 and $3,185 additional support for the period between the child's birth in 1981 and February 1985.

The-trial court ordered that upon the presentation of sufficient proof it would give father credit for any payments he had previously made for this child and would adjust the amount of support to account for his support of two additional children. Father submitted with his motion to modify judgment affidavits from himself, his first wife, and his present wife attesting that as of September 1996: (1) his first wife had received more than $3,000 in child support directly from father; (2) that father had remarried and was supporting two children of his second marriage, and that his present wife was not working outside the home; and (8) that father was then unemployed. Because it appears that the trial court did not address the applicability of the affidavits despite its earlier statement that it would adjust the amount of support to account for father's past payments and present financial circumstances, the cause must be remanded to address these materials. On remand, the trial court should determine whether father is entitled to a reduction of the amount of child support arrearages based upon amounts his first wife has stated that she received directly from father for child support, and to determine whether father's monthly payments for child support arrear-ages should be reduced based upon his financial circumstances between 1996 and 1998.

III. Constitutional Challenges to Retroactive Support Order

Father also contends that the statutes under which the determination of paternity and obligation for child support were made violated his constitutional rights because the applicable statutes allowed the trial court to enter orders in 1996 and 1998 respecting his obligation to pay child support between 1981 and 1995. He argues that such orders denied his rights to due process and equal protection and violated the ex post facto clauses of the Colorado and United States Constitutions. We disagree.

A.

We reject father's contention that the child support orders violated his rights under the state and federal ex post facto clauses.

We note initially that, under the U.S. Constitution, the prohibition against ex post facto laws applies only to penal statutes. See Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981).

Under the Colorado constitution, ex post facto analysis is limited to criminal cases. However, in the civil context, as here, Colorado courts have considered ex post fac-to challenges under the Colorado constitution based on a retrospective statute analysis. See Gasper v. Gunter, 851 P.2d 912 (Colo.1993). Accordingly, we will do the same.

A statute is presumed to be constitutional and the burden is on the party attacking the statute to establish its unconstitutionality beyond a reasonable doubt. People in Interest of C.M., 630 P.2d 593 (Colo.1981).

A'statute is not unconstitutional merely because the facts upon which it operates occurred before the adoption of the statute. People v. D.K.B., 843 P.2d 1326 (Colo.1993). Nor does the modification of the remedy for collection of past-due support impair a vested right that belongs to father. See Ficarra v. Department of Regulatory Agencies, 849 P.2d 6 (Colo.1993) (vested right must be more than a mere expectation based upon an anticipated continuance of existing law); Colorado Department of Social Services v. Smith, Harst & Associates, Inc., 803 P.2d 964 (Colo.1991) (a vested right in remedies does not exist).

Based upon the above principles, we conclude that father's right not to be subjected to an ex post facto law or a retrospective statute has not been violated. See, eg., Department of Revenue v. Roe, 31 Mass.App.Ct. 924, 577 N.E.2d 323 (1991) (there is no retroactive application of law creating child support obligations since duty of support arose at time of child's birth regardless of father's knowledge); In re Paternity of Brad Michael L., 210 Wis.2d 437, 564 N.W.2d 354 (1997) (same).

Indeed, the inherent right to child support belongs to the child. In re Marriage of Murray, 790 P.2d 868 (Colo.App.1989). Both parents have a legal duty to support the child. Abrams v. Connolly, 781 P.2d 651 (Colo.1989). This duty existed before the adoption of the specific statutes that were applied in this case. See People in Interest of A.A.T., 191 Colo. 494, 554 P.2d 302 (1976).

B.

We similarly reject father's contention that his rights to due process and equal protection were violated.

As noted, $ 14-14-104(1)(b) provides for the determination of the accrued child support debt of an absent parent when there has been no prior order of support. Except in limited cireumstances in which income may be averaged over several years, the child support guidelines are applied to the parties' current income and, therefore, the statute does not implicate due process or equal protection concerns. Montezuma County Department of Social Services v. Laner, 937 P.2d 903 (Colo.App.1997).

Here, father was notified and attended all hearings that were conducted to determine child support and the judgment for arrearages. Continuances were initially granted when he contested paternity. Accordingly, we are satisfied that he was afforded due process.

Furthermore, father has not established that he was treated differently from similarly situated parents, and therefore he has not established the necessary predicate to support an equal protection challenge. See People v. Black, 915 P.2d 1257 (Colo.1996).

The judgment of paternity is affirmed, and the judgment determining child support and arrearages is affirmed in part, reversed in part, and remanded for further proceedings.

Judge JONES and Judge NEY concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William R. SNARE, Defendant-Appellant.
    No. 97CA2083.
    Colorado Court of Appeals, Div. I.
    Oct. 28, 1999.
    Certiorari Denied Aug. 21, 2000.

      Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Nancy Bauer Egelhoff, Assistant Attorney General, Denver, Colorado, for Plaintiff-Ap-pellee.
    David F. Vela, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

       Justice KOURLIS does not participate.

   Opinion by

Judge DAVIDSON.

Defendant, William R. Snare, appeals from the trial court's denial of his Crim. P. 85(c) motion. We affirm and remand.

Pursuant to a plea agreement, defendant pled guilty to one count of possession of a controlled substance (methamphetamine), a class four felony. Under the agreement, the prosecution stipulated that if defendant were sentenced to the Department of Corrections (DOC), his sentence would not exceed six years. In exchange for his plea, the prosecution dismissed the remaining charges against him and charges pending against him in an unrelated case.

The trial court then sentenced defendant to four years in a community corrections facility.

Less than a year after his sentence, defendant was terminated from the community corrections program. The trial court, without a hearing, resentenced defendant to the DOC for a four-year prison term. According to defendant, it was not until after he was sentenced to prison that he learned he would be required to serve a mandatory three-year period of parole upon completion of his prison sentence.

Defendant subsequently filed a pro se Crim. P. 35(c) motion, claiming that the court erred in resentencing him without holding a hearing. He also claimed that the providen-cy court failed to advise him adequately because he was not informed that he would be required to serve a mandatory period of parole if he were sentenced to prison. Defendant further asserted that his sentence of four years imprisonment and three years of parole resulted in a total sentence of seven years and violated the terms of his plea agreement.

The trial court denied the motion without holding a hearing or appointing counsel to represent defendant on the motion.

I.

Section 17-27-105, C.R.S8.1999, provides that, after an offender has been rejected from community corrections, a court may resentence such offender without a hearing so long as the sentence does not exceed the sentence originally imposed. In People v. Johnson, 987 P.2d 928 (Colo.App.1999), a division of this court held that, under that statute, a trial court may not impose an aggregate sentence, including the mandatory period of parole, that exceeds the length of the community corrections sentence.

Accordingly, defendant contends that the four-year term of imprisonment to the DOC plus the three-year mandatory period of parole which he now faces exceeds the four-year sentence to community corrections originally imposed, and therefore, that sentence was imposed illegally under § 17-27-105. Defendant also contends that, because he has been sentenced to the custody of the DOC for a total of seven years, the sentence violates the terms of the plea agreement which stipulated a sentence cap of six years.

To the contrary, however, we conclude that the mandatory period of parole is not included in calculating the length of a defendant's term of imprisonment to which he is resen-tenced, as here, after termination from community corrections. Thus, we disagree that defendant's DOC sentence illegally exceeded his original sentence.

If a court sentences a defendant to the DOC, then jurisdiction over the defendant lies in the executive branch. If the DOC later chooses to transfer the defendant to a community corrections program under § 17-27-105(2)(a), C.R.8.1999, jurisdiction over the defendant remains in the executive branch under § 17-27-105(2)(b), C.R.S8.1999 (exeeu-tive director of DOC to designate staff to maintain jurisdiction over. all offenders placed in any community corrections program by order of the executive director or as a condition of parole). Thus, a defendant sentenced to the DOC or transferred by the DOC to community corrections is required to serve the mandatory period of parole which attaches to sentences to the DOC. See § 18-1-105(1)(a)(V)(A) (listing sentence ranges to imprisonment and mandatory periods of parole); Craig v. People, 986 P.2d 951 (Colo.1999) (mandatory period of parole is a "statutorily prescribed sentence component that attaches automatically to any felony sentence involving imprisonment").

In contrast, if a defendant is directly sentenced to community corrections, jurisdiction remains with the judicial branch because supervision of the defendant lies with the probation department, which is an arm of the judicial branch. Section 17-27-105(1)(D, C.R.S.1999 (probation department has jurisdiction over offenders sentenced directly to community corrections); People v. Harris, 934 P.2d 882 (Colo.App.1997) (sentence to probation keeps a defendant under the direct supervision of the sentencing court). Hence, a sentence to community corrections under those circumstances does not invoke a mandatory period of parole. See Benavidez v. People, 986 P.2d 943 (Colo.1999) (offender directly sentenced to community corrections is not subject to mandatory parole unless rejected from community corrections for violation of rules of community corrections program).

When a defendant is rejected by the community corrections program and, in re-sentencing, the trial court sentences the defendant to the DOC, jurisdiction over the defendant is transferred from the judicial to the executive branch. The sentence is then subject to a mandatory period of parole, to be administered by the Board of Parole, following discharge of that sentence. See Benavidez v. People, supra; § 17-2-201, C.R.S.1999.

Here, defendant originally was sentenced directly to community corrections, jurisdiction over him remained in the judicial branch, and his direct sentence to community corrections was not subject to a mandatory period of parole. When he was terminated from the community corrections program, and resentenced to DOC, jurisdiction over him was transferred to the executive branch. And, because a sentence to the DOC carries with it a mandatory period. of parole, defendant's term of imprisonment then became subject to the mandatory period of parole.

Under § 17-27-105(1)(e), C.R.8.1999, upon resentencing an offender who, as here, has been rejected from community corrections, a trial court may only impose a sentence to the DOC that does not exceed the original sentence to community corrections. However, since the mandatory period of parole is imposed, not by the judicial branch, but by the executive branch, it simply does not fall within the trial court's discretionary sentencing authority. Thus, this statutory limitation can refer only to that which is within the court's actual sentencing power; it cannot affect a statutorily required period of mandatory parole over which the court holds no jurisdiction to alter. Cf. Craig v. People, supra (in context of plea agreements, sentence concessions must be understood as speaking only to the discretionary aspects of sentencing where such accommodations actually could be entertained by the trial court).

In other words, when, as here, the court has sentenced a defendant to community corrections and later resentences the defendant to the DOC under $ 17-27-105(1)(e), the period of mandatory parole is not a factor in resentencing defendant. Rather, the allowable number of years to the DOC which a court may impose is the length of the original direct sentence to community corrections. Cf. Craig v. People, supra (a reasonable person would understand that a sentence to the DOC refers only to the imprisonment component of a sentence and does not encompass the mandatory parole period).

Accordingly, we conclude that, the sentence, as set forth in $ 17-27-105, refers to the term of imprisonment and does not include the mandatory parole period which follows. Contrary both to defendant's argument and the determination of the division in People v. Johnson, supra, which preceded the supreme court announcements in Craig and Benavides, here, defendant's three-year term of mandatory parole is not included in his resentence to the DOC. Thus, his four-year sentence to the DOC neither violated his plea agreement nor exceeded the four-year sentence to community corrections originally imposed.

IL

Defendant argues, nevertheless, that even if his sentence otherwise was legal, the trial court's advisement of the possible penalties he faced was inadequate. Specifically, he argues, had he known that upon rejection from community corrections, he faced a sentence to imprisonment to be followed by a period of mandatory parole, he would not have entered his plea.

However, a sentence to community corree-tions was not contemplated under the plea agreement. Therefore, there would have been no reason for defendant to have been advised by the trial court as to the consequences of a sentence to community corrections in lieu of a DOC sentence. Even if a sentence to community corrections had been part of the agreement, no advisement as to mandatory parole was required. Benavides v. People, supra (mandatory parole is not a direct consequence of sentence to community corrections).

Because the plea agreement included a stipulation by the prosecution that, if defendant were sentenced to the DOC, his sentence would be capped at six years, we do consider whether defendant entered his plea knowingly, that is, that he was aware that he was subject to a sentence up to six-years imprisonment to be followed by a three-year mandatory period of parole. We conclude that defendant adequately was advised of these penalties.

A proper advisement concerning mandatory parole must indicate that the parole term occurs after, in addition to, or distinct from any period of imprisonment. A proper advisement must also include the length of mandatory parole. The advisement need not comport with any prescribed ritual or seript. The appropriate inquiry is whether the record as a whole shows that the defendant was given sufficient notice of the matter in question. Craig v. People, supra.

Here, the written plea agreement specifically provided that the offense to which defendant was pleading "carries a mandatory parole period of 3 years following incarceration." Further, defendant was advised by the trial court that it could put him in prison for a minimum of two years to a maximum period of six years and that "the offense carries a mandatory parole period after incarceration of three years." The court also informed defendant at the providency hearing that, in the absence of the agreement, he could be sentenced up to 12 years in prison plus a mandatory three-year parole period to be served after incarceration. Defendant acknowledged his understanding of the terms of the plea agreement as written and as discussed in open court.

Consequently, because defendant was advised in the written plea and at the providen-cy hearing of the consequences of his plea, and he affirmed his understanding of the agreement, the record establishes that defendant was on notice that, were he to be sentenced to a term of imprisonment, he would be required to serve a mandatory period of parole. See Craig v. People, supra; Benavidez v. People, supra; see also People v. Calderon, 992 P.2d 1201 (Colo.App.1999) (if defendant is aware of the mandatory period of parole at time plea is entered, then plea is made knowingly).

IIL

Because we have concluded that defendant's plea was valid, and that the sentence imposed on him to the DOC was legal, the trial court did not err in denying his Crim. P. 35(c¢) motion without appointing counsel or holding a hearing. See People v. Hartkemeyer, 843 P.2d 92 (Colo.App.1992) (trial court may deny Crim. P. 85(e) motion without hearing if motion, files, and record establish that the defendant is not entitled to relief).

IV.

We also disagree with defendant's final contention that his sentence is not subject to a period of parole because the court did not authorize it on the mittimus.

The court's failure to enter the mandatory period of parole on the mittimus does not affect the requirement that it be served. Section 18-1-105(1)(a)(V)(A) imposes a mandatory period of parole that may not be waived or suspended. The remedy is to remand the case for the trial court to correct the mittimus to reflect the required period of parole. See Craig v. People supra; People v. Reynolds, 907 P.2d 670 (Colo.App.1995) (mit-timus which does not specify the required period of parole may be corrected by the sentencing court).

The order is affirmed, and the cause is remanded for correction of the mittimus to specify the required period of parole.

Judge METZGER and Judge CRISWELL concur.


author: Judge RULAND.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael Louis TAYLOR, Defendant-Appellant.
    No. 98CA2426.
    Colorado Court of Appeals, Div. I.
    March 16, 2000.

      Ken Salazar, Attorney General, Matthew S. Holman, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David F. Vela, Colorado State Public Defender, William S. Schurman, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge RULAND.

Defendant, Michael Louis Taylor, appeals from the trial court's order denying his Crim. P. 35(a) motion. We affirm.

On September 17, 1990, defendant pled guilty to unlawful sale of a schedule II controlled substance in Routt County. In exchange for his plea, defendant received a deferred judgment and sentence.

Approximately one year later, defendant's deferred judgment and sentence were revoked. Defendant was then sentenced to four years in community corrections to run concurrent with a four-year sentence to community corrections in an unrelated El Paso County case.

On December 4, 1992, defendant left the community corrections facility without authorization. Warrants were issued for his arrest in both Routt and El Paso Counties for escape.

Shortly thereafter, defendant robbed a bank in California and was taken into federal custody. He was sentenced to 77 months in federal prison.

While serving his federal sentence, defendant was returned to El Paso County, at his request, in order to plead guilty to the escape charge. Defendant was sentenced to the Department of Corrections (DOC) for two years on the escape charge to run consecutively with the four-year sentence for the El Paso County conviction. Both sentences were ordered to be served concurrently with the federal sentence.

Routt County was not notified of defendant's appearance in this state, and the warrant from that county remained outstanding.

Upon completion of the federal sentence, defendant was transported to Routt County. He pled guilty to violating the terms of his assignment to community corrections,. Following a hearing, defendant was sentenced to four years in DOC.

I.

Defendant contends that, because he now must serve four more years in DOC after serving that amount of time in connection with the El Paso County case, his new sentence has the effect of illegally changing his former concurrent sentences to consecutive sentences. We disagree.

Defendant was sentenced to community corrections in 1991 and was terminated from the program in 1992. However, between the time of his termination and resen-tencing in 1998, Article 27 of Title 17 was revised and reenacted. The statute in effect at the time of his resentencing, § 17-27-105(1)(e), C.R.8.1999, governs the analysis of the issues here. See People v. McCreadie, 938 P.2d 528 (Colo.1997)(statute in effect at time of resentencing to DOC after termination from community corrections is controlling).

Under § 17-27-105(1)(e):

If an offender is rejected after acceptance by a community corrections board or a community corrections program, the court may resentence the offender without any further hearing so long as the offender's sentence does not exceed the sentence which was originally imposed upon the offender.

As pertinent here, the "sentence" referred to in § 17-27-105(1)(e) is the term of imprisonment in DOC. See Craig v. People, 986 P.2d 951 (Colo.1999)(reasonable person's understanding of sentence to the DOC is that it encompasses only the imprisonment component); People v. Snare 7 P.3d 1025 (Colo.App.1999)(sentence refers to term of imprisonment). Thus, on its face, defendant's sentence to four years in DOC was proper under § 17-27-105(1)(e).

Nevertheless, defendant argues that, because § 17-27-105(1)(e) prohibits a resen-tencing court from increasing the length of the original sentence, the new sentence here is illegal because it was to be served and discharged at the same time as the El Paso County sentence. Stated another way, he argues that because his El Paso County sentence has been discharged, his Routt County sentence should be deemed discharged. We are not persuaded.

When two sentences run concurrently, a prisoner receives credit toward each sentence for each day in custody. However, concurrent sentences do not necessarily begin and end at the same time. Bullard v. Department of Corrections, 949 P.2d 999 (Colo.1997). See also Brinklow v. Riveland, 773 P.2d 517 (Colo.1989)(even if concurrent sentences are all of the same length, a pardon on one conviction would not relieve the offender from serving the full term imposed on a conviction for which no pardon was granted).

As a result, sentences imposed at different times or for different periods of time to run concurrently run together only during the time that the sentences overlap. Brinklow v. Riveland, supra.

Here, defendant's confinement in the Routt County case was interrupted by his own act - his escape. Had he not escaped, the sentences in both cases would not have been interrupted. Further, although warrants in both counties were outstanding when defendant was sentenced to federal prison, his return to Colorado was based only on the El Paso County warrant.

Next, although he was aware that there might be an outstanding warrant in connection with the Routt County case, defendant took no action on that case. And, El Paso. County had no jurisdiction to quash the Routt County warrant or sentence defendant in that case. See Bullard v. Department of Corrections, supra (one court has no authority to affect the sentence imposed by another court).

Accordingly, because the interruption in defendant's concurrent sentences was caused by defendant's conduct, the discharge of the El Paso County sentence had no effect on the unserved portion of the Routt County sentence. Cf., People v. Lucero, 654 P.2d 835 (Colo.1982)(defendant who escapes from custody is not entitled to credit for any time he or she was at large because of the escape).

IL.

We also disagree with defendant's contention that he should be given credit on the Routt County sentence for time served in the E1 Paso County case.

An offender is not entitled to presen-tence confinement eredit if the time served prior to the imposition of a sentence was not attributable to the charge for which the sentence was imposed. People v. Fitzgerald, 973 P.2d 708 (Colo.App.1998).

Here, although defendant was imprisoned, none of the time he was confined after his resentencing in the El Paso County case was attributable to the charges in Routt County. Indeed, during the whole period of his confinement after resentencing in the El Paso County case, the warrant from Routt County remained outstanding. Thus, defendant is not entitled to any credit on his Routt County sentence for his incarceration under the El Paso County sentence.

The order is affirmed.

Judge METZGER and Judge NIETO concur.


text:
    BOARD OF COMMISSIONERS OF the COUNTY OF BOULDER, Plaintiff-Appellee and Cross-Appellant, v. CITY OF BROOMFIELD, Colorado; City Council of the City of Broomfield; and Broomfield Urban Renewal Authority, Defendants-Appellants and Cross-Appellees.
    No. 98CA0836.
    Colorado Court of Appeals, Div. V.
    Nov. 12, 1999.
    As Modified on Denial of Rehearing Dec. 27, 1999.
    Certiorari Granted Sept. 11, 2000.

      H. Lawrence Hoyt, Boulder County Attorney, Boulder, Colorado, for Plaintiff-Appel-lee and Cross-Appellant.
    Roy S. Howard, Broomfield City Attorney, Broomfield, Colorado, for Defendants-Appellants and Cross-Appellees City of Broom-field, Colorado, and City Council of the City of Broomfield.
    Paul C. Benedetti, Boulder, Colorado, for Defendant-Appellant and Cross-Appellee Broomfield Urban Renewal Authority.
    Arnold & Porter, Eugene L. Hohensee; Mark H. Boscoe; Gregory E. Goldberg; and Peter J. Krumholz, Denver, Colorado, for Amicus Curiae Colorado Community Revitalization Association.
    Geoffrey T. Wilson, Denver, Colorado, for Amicus Curiae Colorado Municipal League.
   Opinion by

Judge DAVIDSON.

Defendants, City of Broomfield, City Council of the City of Broomfield, and Broomfield Urban Renewal Authority (BURA), appeal from the trial court's determination that the urban renewal plan proposed by BURA and approved by the City was void for lack of compliance with statutory requirements. We reverse and remand for dismissal of the complaint.

On September 12, 1995, the Broomfield City Council received a report on the results of a blight survey of an area within the city. On the basis of that report, the City determined that the area was blighted and directed that an urban renewal plan be prepared as provided for under § 81-25-101, et seq.,

The City Council then held a public hearing on the proposal to create such a plan. Following the hearing, the proposal was tabled. At the next council meeting, the plan was approved.

The Board of Commissioners of the County of Boulder (BOCC), along with Adams County, the commissioners of Boulder and Adams Counties, in their official and individual capacities, and an individual taxpayer (plaintiffs), filed suit against defendants, alleging that the urban renewal plan did not comply with the requirements of § 31-25-101, et seq., that the plan violated Colo. Const. art. X, § 20, The Taxpayers' Bill of Rights (TABOR), and that, under TABOR, the plan, because it involved a tax policy change, should have been put to a vote of the electorate. Defendants asserted that the plaintiffs lacked standing because they had not asserted an injury in fact to a legally protected interest and also lacked standing to assert claims under TABOR.

Upon cross-motions for summary judgment, the trial court determined that, because the City Council had provided notice and held a hearing as required under § 31-25-107(8), C.R.S.1999, its actions in finding that the area was blighted and in approving the renewal plan were quasi-judicial and, therefore, the claims would be reviewed under C.R.C.P. 106(a)(4d). The court also determined that plaintiffs had standing to challenge the validity of the plan because they had alleged an injury in fact resulting from a loss of increased property tax revenues and had asserted a legally protected interest under § 31-25-107(8.5), C.R.S8.1999. Further, the court determined, plaintiffs had standing under TABOR to challenge the approval and implementation of the plan.

Subsequently, all plaintiffs except the BOCC were dismissed from the action.

After considering the briefs and motions submitted by the parties, the court, applying the standard of review under C.R.C.P. 106(a)(4), determined that competent evidence existed to support defendants' determination that the area was blighted, that the urban renewal plan was sufficiently complete under § 81-25-103, C.R.$.1999, and that the area did not consist of open land and, therefore, was not subject to the requirements of §§ 31-25-107(5) and 81-25-107(6), CRS. 1999.

However, the court also determined that no competent evidence existed to support the findings that defendants had complied with the statutory requirements of § 31-25-107(8.5) and that the plan complied with the statutory requirements for approval of an urban renewal plan. Therefore, the court determined, the plan was void.

(On appeal, defendants contend that the BOCC lacks standing to bring claims under either § 831-25.107(8.5) or TABOR. The BOCC argues that it has alleged an injury in fact to a legally protected interest under § 31-25-107(8.5) and that it also has standing under TABOR to bring this action either in its own right or on behalf of its taxpayers. We agree with defendants.

Standing involves a consideration of whether a plaintiff has asserted a legal basis upon which a claim for relief may be predicated. Romer v. Board of County Commissioners, 956 P.2d 566 (Colo.1998).

In order to establish standing, a plaintiff must allege an injury in fact to a legally protected interest as contemplated by statutory or constitutional provisions. Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977).

In making this determination, a court must accept as true all the allegations of material fact as presented in the complaint. State Board for Community Colleges & Occupational Education v. Olson, 687 P.2d 429 (Colo.1984).

A.

The BOCC argues that it has alleged an injury in fact to a legally protected interest under § 31-25-107(8.5). We disagree.

1.

The BOCC, relying on Hast Grand County School District No. 2 v. Town of Winter Park, 739 P.2d 862 (Colo.App.1987), asserts that the increased value in the renewal area under defendants' tax increment plan for financing the renewal plan would be attributable in part to an increase in property values in general, and that the resultant increase in tax revenues ordinarily would be paid to the county. However, the BOCC argues, because, under the plan, the increase in property values is presumed to be generated by the renewal plan and the increased tax revenues would be paid to the renewal authority, the county is deprived of income that it otherwise would receive. Therefore, the BOCC claims, it has asserted an injury in fact that would result from implementation of the renewal plan. We disagree.

In East Grand County School District No. 2 v. Town of Winter Park, supra, a division of this court determined that the plaintiffs had asserted an injury in fact because they would have to raise their tax rates or curtail services to make up for a loss of property tax revenue that would go to the urban renewal authority instead of to them. The plaintiffs predicated their projected loss on the fact that property values were increasing even before the plan was to be implemented and would continue to increase during its implementation. Therefore, they argued, the increase to the base property value did not result solely from implementation of the renewal plan and, thus, granting the renewal authority the additional tax revenues deprived plaintiffs of tax revenues that belonged to them.

Previously, however, in Denver Urban Renewal Authority v. Byrne, 618 P.2d 18374 (Colo.1980), the supreme court determined that, as a matter of law, the tax allocation plan under § 31-25-107(9), C.R.S$.1999, and as proposed by the Denver Urban Renewal Authority for financing its proposed renewal project, had been carefully drafted to provide a direct relationship between an increase in the valuation of property within the renewal area and the increase in revenues that would be paid to the project as set forth under § 81-25-107(9). On that basis, the court determined that, contrary to its argument in support of invalidating the plan, Denver could not lose any benefit of property tax revenues which otherwise would have been available to it had the plan never been adopted.

Similarly, here, defendants' plan calls for financing the renewal project under the provisions of § 31-25-107(9). Further, § 81-25-107(9)(e), 0.R.8.1999, expressly provides for a proportional adjustment of the amount to be paid to a renewal authority in the event of a general reassessment of taxable property valuations. Therefore, if property values are reassessed, the valuation of property within the renewal area is proportionately readjusted and, thus, revenues from such increases are paid to the county. Only the increases in the value of a property over the assessed base values go to the renewal authority. Thus, the tax increment allocation plan developed by the renewal authority under $ 31-25-107(9) simply does not deprive counties of their property tax revenue. See Denver Urban Renewal Authority v. Byrne, supra (fiscal base of taxing entities not impaired by tax allocation scheme under § 31-

Therefore, we conclude as a matter of law that the county is not deprived of property tax revenues to which it claims it is entitled and, thus, the BOCC has not alleged an injury in fact that would allow it to maintain its claims.

To the extent our determination conflicts with the holding in Hast Grand County School District No. 2 v. Town of Winter Park, supra, we decline to follow it.

2.

We also conclude that the BOCC's claimed injury in fact, if there were one, would not be to a legally protected interest.

Under § 81-25-107(8.5):
Prior to the approval of an urban renewal plan, the governing body shall submit such plan to the board of county commissioners, which shall include, at a minimum, the following information concerning the impact of such plan:
(a) The estimated duration of time to complete the urban renewal project;
(b) The estimated annual property tax increment to be generated by the urban renewal project and the portion of such property tax increment to be allocated during this time period to fund the urban renewal project;
(c) Any other estimated impacts of the urban renewal project on county services or revenues.

The BOCC argues that, because § 81-25-107(8.5) requires that the urban renewal plan be submitted to it prior to its approval, and that such plan must inform the county of estimated impacts concerning time, cost, and other material factors, it necessarily has been granted an advisory role in the renewal process and the financing of the plan. Therefore, the BOCC argues, standing is conferred on it under the statute in the same way it was on the plaintiffs in Hast Grand County School District No. 2 v. Town of Winter Park, supra.

However, unlike § 31-25-107(9)(d), C©.R.98.1999, which expressly conferred an advisory role on the local school board, § 31-25-107(8.5) contains no such language. This provision does no more than require that certain information be supplied to the board of county commissioners of each county that could be affected by such plan. It does not grant any authority to take any action, to participate in the planning process, or to implement the plan in any way other than that granted to the general public to receive notice and participate in a public hearing. And, for the same reasons, we do not read the statute to imply a grant of authority to the county to assume an advisory role.

B.

The BOCC contends, in the alternative, that it has standing under TABOR because the plain language of the constitution provides a means for taxpayers to enforce its provisions. It is undisputed that the BOCC is not a taxpayer. However, the BOCC argues, because it is not expressly precluded from bringing this suit and because it is acting on behalf of the taxpayers, it has standing to act in this representative capacity. We are not persuaded.

In construing Colo. Const. art. X, § 20, a reviewing court must take into account what people believed the amendment to mean when it was accepted as fundamental law. Havens v. Board of County Commissioners, 924 P.2d 517 (Colo.1996).

Courts should not engage in a narrow and technical reading of the language contained in an initiated constitutional amendment if to do so would defeat the intent of the people. If the language of an amendment is not clear as to the intent of the electorate, then the court should construe the amendment in light of the objective sought to be achieved and the mischief to be avoided. Zamer v. City of Brighton, 917 P.2d 280 (Colo.1996).

The principal purpose of TABOR is to limit the spending and taxing power of state and local governments by providing taxpayers with greater direct control over government growth. Zanmerv. City of Brigh ton, swpra. TABOR requires voter approval of any proposed tax increase and grants taxpayers the right to enforce its provisions. Property Tax Adjustment Specialists, Inc. v. Mesa County Board of Commissioners, 956 P.2d 1277 (Colo.App.1998); ef. City of Wheat Ridge v. Cerveny, 918 P.2d 1110 (Colo.1996) (TABOR facilitates taxpayer suits to enforce compliance with the purpose of restraining governmental growth). Thus, TABOR was intended to confer standing on taxpayers to bring suits to enforce the rights granted by its provisions.

If a statute or an amendment expressly designates those who may bring an action, only those so designated have standing to do so. Tenney v. Bourd of Assessment Appeals, 856 P.2d 89 (Colo.App.1998).

Here, the plain language of TABOR expressly grants the right to file enforcement suits and class action suits to individual taxpayers. Further, it provides for an award of attorney fees to the successful taxpayer plaintiff, However, it grants no such right to governmental entities.

The BOCC argues that, nevertheless, it has standing to bring this suit in a representative capacity on behalf of its taxpayers. However, contrary to the BOCC's argument, a county may not bring an action on behalf of its taxpayers in the absence of an express legislative grant of authority. Board of County Commissioners v. Love, 172 Colo. 121, 470 P.2d 861 (1970).

Here, TABOR does not expressly confer standing on the BOCC, either in its own right or in a representative capacity. Thus, we conclude that the BOCC does not have standing under TABOR to maintain its claims.

Because we conclude that the BOCC lacks standing, we need not address the other contentions raised by the parties.

The judgment is reversed and the cause is remanded to the trial court with directions to dismiss the complaint.

Judge TAUBMAN and Judge KAPELKE concur.