in the Interest of G.C.M.M

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
October 29, 2020

2020COA152

No. 19CA2326, People in the Interest of G.C.M.M. — Family Law
— Paternity — Uniform Parentage Act — Uniform Child-custody
Jurisdiction and Enforcement Act

In this paternity proceeding, a division of the court of appeals

considers the interplay between the jurisdictional provisions of the

Uniform Parentage Act (UPA) and the Uniform Child-custody

Jurisdiction and Enforcement Act (UCCJEA). The child at issue

was conceived in Colorado but born in another state, and the

juvenile court determined that it lacked jurisdiction to make a

child-custody determination.

Agreeing with the juvenile court, the division concludes that,

while a paternity proceeding under the UPA may be initiated before

a child’s birth, a court must also have jurisdiction under the

UCCJEA before it may make a child-custody determination as part
of the proceeding. The juvenile court here did not have jurisdiction

under the UCCJEA because that statute does not provide a basis

for jurisdiction over an unborn child. Nor does the UPA expressly

authorize a court to make a child-custody determination before the

child is born. Therefore, the division affirms the judgment.
COLORADO COURT OF APPEALS 2020COA152

Court of Appeals No. 19CA2326
El Paso County District Court No. 18JV906
Honorable Linda Billings Vela, Judge

The People of the State of Colorado,

Appellee,

In the Interest of G.C.M.M., a Child,

and Concerning S.M.M.,

Appellant,

and

L.M.D.,

Appellee.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE NAVARRO
Fox and Brown, JJ., concur

Announced October 29, 2020

Modern Family Law, Chelsea Hillman, Denver, Colorado, for Appellant

Law Office of Greg Quimby PC, Greg Quimby, Erica Vasconcellos, M. Addison
Freebairn, Colorado Springs, Colorado, for Appellee
¶1 In this paternity proceeding, we must consider the interplay

between the jurisdictional provisions of the Uniform Parentage Act

(UPA), §§ 19-4-101 to -130, C.R.S. 2019, and the Uniform Child-

custody Jurisdiction and Enforcement Act (UCCJEA), §§ 14-13-101

to -403, C.R.S. 2019. S.M.M. (father) appeals the juvenile court’s

judgment vacating an earlier custody order for lack of subject

matter jurisdiction. Father’s child, G.C.M.M., was conceived in

Colorado, and father filed this paternity proceeding before the

child’s birth. The child was born in New Hampshire, however, and

has never lived in Colorado. Still, father asserts that the juvenile

court could make a custody determination because its jurisdiction

over this proceeding was established before the child’s birth.

¶2 We reach the opposite conclusion. While a paternity

proceeding under the UPA may be initiated before a child’s birth,

the court must also have jurisdiction under the UCCJEA before it

may make a child-custody determination as part of the proceeding.

The juvenile court here did not have jurisdiction under the UCCJEA

because that statute does not provide a basis for jurisdiction over

an unborn child. Nor does the UPA expressly authorize a court to

1
make a child-custody determination before the child is born. As a

result, we affirm the judgment.

I. Procedural History

¶3 In August 2018, father initiated a paternity proceeding under

the UPA concerning the yet to be born child. He sought a

determination that he was the child’s father and an allocation of

parental responsibilities — decision-making authority and

parenting time — for the child. When father initiated the

proceeding, he and L.M.D. (mother) lived in Colorado.

¶4 Before the child’s birth, however, two significant events

occurred for purposes of this case. First, mother moved to New

Hampshire. Second, based on the parents’ agreement, a magistrate

issued a paternity judgment declaring father the child’s parent.

¶5 The child was born in New Hampshire in mid-September

2018. Not long after, the parents stipulated to a parenting plan

that contemplated father’s exercising parenting time with the child

in New Hampshire. The magistrate adopted the stipulation and set

a permanent orders hearing for July 2019.

¶6 Before the hearing, mother moved to dismiss the action based

on a lack of subject matter jurisdiction because the child had lived

2
in New Hampshire his entire life. Mother also initiated a

child-custody proceeding in New Hampshire. After communicating

with the Colorado magistrate, the New Hampshire court stayed its

proceeding pending the resolution of the jurisdictional dispute.

¶7 The magistrate decided that a Colorado court could make a

custody determination because its jurisdiction to determine

paternity was properly invoked before the child’s birth and such

jurisdiction included an allocation of parental responsibilities. The

magistrate further reasoned that the court had not lost jurisdiction

when mother moved out of the state before the child’s birth.

¶8 Mother sought review of the magistrate’s order by a juvenile

court judge. The juvenile court concluded that the magistrate had

jurisdiction to determine paternity, but that the magistrate erred by

holding that Colorado had jurisdiction to make a child-custody

determination. The court also concluded that the UPA provides no

authority to restrain a pregnant mother from leaving the state.

Accordingly, the court (1) affirmed the paternity judgment;

(2) denied mother’s request to dismiss the case; and (3) vacated the

temporary custody order and directed the magistrate to confer with

the New Hampshire court in accordance with the UCCJEA.

3
II. Jurisdiction

¶9 Father contends that the juvenile court erred by concluding

that the UCCJEA’s provisions limit its jurisdiction to make a

custody determination in a paternity case. He argues that the UPA

confers broader jurisdiction to make custody determinations than

the UCCJEA because the UPA permits a juvenile court to acquire

jurisdiction when a paternity action is initiated before a child’s

birth. We disagree.

A. Standard of Review and Statutory Interpretation

¶ 10 Whether a juvenile court has subject matter jurisdiction over a

child-custody proceeding is a question of law that we review de

novo. Brandt v. Brandt, 2012 CO 3, ¶ 18. We also review questions

of statutory interpretation de novo. People in Interest of L.M., 2018

CO 34, ¶ 13.

¶ 11 In construing a statute, we look at the entire statutory scheme

“in order to give consistent, harmonious, and sensible effect to all of

its parts, and we apply words and phrases in accordance with their

plain and ordinary meanings.” Id. (quoting UMB Bank, N.A. v.

Landmark Towers Ass’n, 2017 CO 107, ¶ 22). When construing

statutes related to the same subject matter, we aim to avoid an

4
interpretation that would render certain words or provisions

superfluous or ineffective. Id. Instead, we adopt an interpretation

that achieves consistency across a comprehensive statutory

scheme. Id.

B. Stipulation to Initial Parenting Plan

¶ 12 To start, we recognize that mother and father initially

stipulated to a parenting plan and asked the magistrate to adopt it.

But the parties cannot confer subject matter jurisdiction on a court.

See In re Marriage of Tonnessen, 937 P.2d 863, 865 (Colo. App.

1996). Furthermore, a question of subject matter jurisdiction may

not be waived and may be raised at any time. In re Marriage of

Finer, 893 P.2d 1381, 1384 (Colo. App. 1995).

C. Statutory Frameworks

1. The UPA

¶ 13 Paternity proceedings are generally subject to the UPA. N.A.H.

v. S.L.S., 9 P.3d 354, 360 (Colo. 2000); see also In re Support of E.K.,

2013 COA 99, ¶ 9.1 Except as otherwise provided by law, the

1 A proceeding to determine paternity may also be brought under
the Uniform Interstate Family Support Act (UIFSA). §§ 14-5-201,
14-5-402, C.R.S. 2019. UIFSA enumerates additional bases for

5
juvenile court has exclusive jurisdiction to determine the parentage

of a child who was conceived in the state and to make an order of

support in connection therewith. § 19-1-104(1)(f), C.R.S. 2019;

§ 19-4-109(1), (2), C.R.S. 2019. A paternity proceeding may be

initiated before a child’s birth. § 19-4-105.5(3), C.R.S. 2019.

¶ 14 Except as otherwise provided by law, the juvenile court may

determine the custody of a child who otherwise comes within its

jurisdiction. § 19-1-104(1)(c). Once a paternity proceeding is

initiated, a temporary injunction goes into effect restraining each

parent from removing from the state a child who is the subject of

the proceeding. § 19-4-105.5(5)(c)(I)(B). The court may also issue

orders concerning the allocation of parental responsibilities,

including determinations of decision-making authority and

jurisdiction over nonresidents in proceedings to establish support
orders or to determine parentage. In re Parental Responsibilities of
H.Z.G., 77 P.3d 848, 854 (Colo. App. 2003). It provides an
alternative statutory method outside of the UPA for determining
support and parentage issues. DeWitt v. Lechuga, 393 S.W.3d 113,
117 (Mo. Ct. App. 2013); see also In Interest of R.L.H., 942 P.2d
1386, 1389 (Colo. App. 1997) (holding that UIFSA remedies are
cumulative to remedies available under other law). No party
invoked UIFSA’s provisions in this case.

6
parenting time, as part of the proceeding. §§ 19-4-111(4),

19-4-116(3)(a), 19-4-130(1), C.R.S. 2019.

2. The UCCJEA

¶ 15 In addition to the UPA, the UCCJEA governs whether a court

has jurisdiction to address custody matters, including an allocation

of parental responsibilities. See Madrone v. Madrone, 2012 CO 70,

¶ 10. Indeed, the phrase “[e]xcept as otherwise provided by law” in

section 19-1-104(1) indicates that the juvenile court’s jurisdiction is

limited by other legislative enactments. Nistico v. Dist. Court, 791

P.2d 1128, 1129 (Colo. 1990).

¶ 16 The UCCJEA is designed to avoid jurisdictional competition

between states over child-custody matters in an increasingly mobile

society. Brandt, ¶ 19. To accomplish this purpose, the UCCJEA

establishes a comprehensive framework that a Colorado court must

follow to determine whether it may exercise jurisdiction in a

child-custody matter or whether it must defer to a court of another

state. In Interest of M.M.V., 2020 COA 94, ¶ 17. Absent emergency

jurisdiction, a court of this state may make an initial child-custody

determination only if it has jurisdiction to do so based on the

grounds identified in section 14-13-201, C.R.S. 2019. Madrone,

7
¶ 10; see also In re Parental Responsibilities Concerning B.C.B.,

2015 COA 42, ¶ 10.

¶ 17 Section 14-13-201 contains four independent grounds for

jurisdiction to make an initial child-custody determination. People

in Interest of S.A.G., 2020 COA 45, ¶ 20 (cert. granted Sept. 14,

2020). First, a court may have jurisdiction if Colorado is the home

state of the child on the date of the commencement of the

proceeding or was the home state within 182 days of the

commencement of the proceeding. § 14-13-201(1)(a). A child’s

home state is the state in which the child has lived with a parent for

at least 182 consecutive days immediately before the

commencement of the proceeding or, for a child less than six

months of age, the state in which the child has lived from birth.

§ 14-13-102(7)(a), C.R.S. 2019. The UCCJEA prioritizes home state

jurisdiction for initial child-custody determinations. Madrone, ¶ 11.

¶ 18 The other three bases for establishing jurisdiction apply when

Colorado is not the child’s home state. S.A.G., ¶ 20. They include

“significant connection” jurisdiction, “more appropriate forum”

jurisdiction, and “last resort” jurisdiction (no court in any other

state would have jurisdiction). Madrone, ¶¶ 15-17; see also

8
§ 14-13-201(1)(b)(I), (c), (d). No party asserts that any of these other

bases applies here.

D. Jurisdiction to Determine Paternity

¶ 19 We first conclude that the juvenile court properly determined

that it had jurisdiction to determine the child’s paternity.

¶ 20 The UCCJEA covers a wide variety of child-custody matters,

defined as child-custody determinations and child-custody

proceedings. M.M.V., ¶ 17. The UCCJEA defines a child-custody

determination as “a judgment, decree, or other order of a court

providing for the legal custody or physical custody of a child or

allocating parental responsibilities with respect to a child or

providing for visitation, parenting time, or grandparent or

great-grandparent visitation with respect to a child.”

§ 14-13-102(3). A child-custody proceeding is “a proceeding in

which legal custody or physical custody with respect to a child or

the allocation of parental responsibilities with respect to a child or

visitation, parenting time, or grandparent or great-grandparent

visitation with respect to a child is an issue.” § 14-13-102(4).

¶ 21 A paternity determination, standing alone, does not fall within

the definition of a child-custody determination. A paternity

9
determination decides who will be a child’s legal parent. See

N.A.H., 9 P.3d at 359. But it does not address issues concerning

custody of the child, an allocation of parental responsibilities,

visitation, or parenting time. And the UCCJEA expressly provides

that a child-custody determination does not include an order

related to child support or other monetary obligation of an

individual. § 14-13-102(3).

¶ 22 True, a paternity case is one type of child-custody proceeding

under the UCCJEA. § 14-13-102(4). The official comment to

section 14-13-102, however, clarifies that only the custody and

visitation aspects of paternity cases are child-custody proceedings

subject to the UCCJEA. § 14-13-102 cmt. In contrast, the UPA or,

in certain circumstances, the Uniform Interstate Family Support

Act governs the determinations of paternity and child support. See

id.; see also DeWitt v. Lechuga, 393 S.W.3d 113, 117 (Mo. Ct. App.

2013).

¶ 23 As a result, the UCCJEA does not limit a court’s jurisdiction to

determine paternity or order child support. See In re Marriage of

Richardson, 102 Cal. Rptr. 3d 391, 393 (Ct. App. 2009) (holding

that the UCCJEA does not limit jurisdiction over child support

10
orders); DeWitt, 393 S.W.3d at 118-20 (holding that the court could

make a paternity determination when the child was conceived in

the state even though it lacked jurisdiction to make a child-custody

determination under the UCCJEA); Harshberger v. Harshberger,

724 N.W.2d 148, 156 (N.D. 2006) (recognizing that courts have

construed the UCCJEA as applying to paternity cases only when

custody or visitation is an issue).

E. Jurisdiction to Determine Custody

¶ 24 We must next decide whether the juvenile court properly

determined that it lacked jurisdiction to make an initial

child-custody determination.

¶ 25 The UCCJEA defines a child as “an individual who has not

attained eighteen years of age.” § 14-13-102(2). And recall that,

when a child is less than six months of age, the child’s home state

is the state in which the child has lived “from birth.”

§ 14-13-102(7)(a).

¶ 26 When interpreting these provisions, we look to guidance

provided by other states because, if a statute has been adopted

from a uniform law, it should be construed to bring uniformity to

the law in the various states that adopt it. See In Interest of R.L.H.,

11
942 P.2d 1386, 1388 (Colo. App. 1997). Indeed, in the UCCJEA,

our legislature has explicitly directed courts to consider “the need to

promote uniformity of the law with respect to its subject matter

among states that enact it.” § 14-13-401, C.R.S. 2019. Moreover,

the Uniform Law Commission promulgated the UCCJEA for the key

purpose of creating consistency in interstate child-custody

jurisdiction and enforcement proceedings. M.M.V., ¶ 16.

¶ 27 Other state courts interpreting these same provisions have

concluded that the UCCJEA does not provide a jurisdictional basis

to make a child-custody determination concerning an unborn child

or a child who has never resided in the state. See Gray v. Gray, 139

So. 3d 802, 806 (Ala. Civ. App. 2013); Ark. Dep’t of Human Servs. v.

Cox, 82 S.W.3d 806, 813 (Ark. 2002); Fleckles v. Diamond, 35

N.E.3d 176, 184 (Ill. App. Ct. 2015); Sara Ashton McK. v. Samuel

Bode M., 974 N.Y.S.2d 434, 435 (App. Div. 2013); Mireles v. Veronie,

___ N.E.3d ___, ___, 2020 WL 2652274 (Ohio Ct. App. 2020);

Waltenburg v. Waltenburg, 270 S.W.3d 308, 316 (Tex. App. 2008); In

re Custody of Kalbes, 733 N.W.2d 648, 650 (Wis. Ct. App. 2007).

¶ 28 For instance, the Alabama Court of Civil Appeals explained

that an unborn child cannot have a home state as the child has not

12
“lived from birth” in any state. Gray, 139 So. 3d at 806. The

Wisconsin Court of Appeals similarly reasoned that, although a

child was conceived in Idaho and the father filed for divorce from

the mother in Idaho before the child’s birth, Wisconsin was the

child’s home state under the UCCJEA because the child had been

born in that state and had lived there from birth. Kalbes, 733

N.W.2d at 650. Likewise, in interpreting the UCCJEA’s

predecessor, the Arizona Court of Appeals observed that the statute

did not contemplate the in utero period of time in determining a

child’s home state. In re Marriage of Tonnessen, 941 P.2d 237, 239

(Ariz. Ct. App. 1997).

¶ 29 We recognize that the Kentucky Court of Appeals has reached

a different conclusion. In interpreting UCCJEA’s predecessor, the

court held that, when a marriage dissolution petition was filed in

Kentucky before a child’s birth, the child did not have a home state

as the time of the commencement of the proceedings. Yet, the court

concluded that, although the child was later born in Ohio,

Kentucky remained the proper forum to litigate child-custody issues

under other jurisdictional provisions of the statute. Gullett v.

Gullett, 992 S.W.2d 866, 869-71 (Ky. Ct. App. 1999). We do not

13
believe this holding comports with the UCCJEA’s preference for

home state jurisdiction based on where a newborn child has lived

since birth. See also Waltenburg, 270 S.W.3d. at 317 (disagreeing

with Gullett). Therefore, we agree with the majority of state courts

that have concluded that the UCCJEA does not provide a

jurisdictional basis to make a child-custody determination

concerning an unborn child.

¶ 30 In fact, father agrees that the UCCJEA relies on a “home state

analysis after the child is born” and there “cannot be a home state

for an unborn child.” Even so, father asserts that the UPA itself

provides jurisdiction to make a child-custody determination in this

case because the UPA expressly allows a court to establish its

jurisdiction before a child is born. We reject this argument for two

reasons.

¶ 31 First, the provisions governing initial child-custody

determinations under the UCCJEA provide the “exclusive

jurisdictional basis for making a child-custody determination by a

court of this state.” § 14-13-201(2). Thus, before a juvenile court

may make a custody determination (including an allocation of

parental responsibilities) in a paternity case, it must also obtain

14
jurisdiction under the UCCJEA. See Nistico, 791 P.2d at 1129

(recognizing that a custodial dispute arising in a UPA action was

governed by the predecessor to the UCCJEA); see also People in

Interest of M.S., 2017 COA 60, ¶¶ 22-23 (holding that, in a

dependency and neglect proceeding, the juvenile court had to follow

the procedures set forth in the UCCJEA to acquire jurisdiction

before it could issue a custody order); In re Marriage of Pritchett, 80

P.3d 918, 920 (Colo. App. 2003) (recognizing that a court had

jurisdiction to make an initial child-custody determination in a

dissolution of marriage proceeding when Colorado was the

children’s home state under the UCCJEA). Stated differently, the

jurisdictional requirements of the UCCJEA apply to child-custody

determinations regardless of the statute under which the

proceeding was commenced. See Mireles, ___ N.E.3d at ___, 2020

WL 2652274.

¶ 32 Second, while section 19-4-105.5(3) provides that a paternity

case may be commenced “prior to a child’s birth,” the UPA contains

no provision authorizing a court to make a custody determination

or an allocation of parental responsibilities concerning an unborn

child. Indeed, the temporary restraining order provision provides

15
that each party is restrained from removing a “minor child.” § 19-4-

105.5(5)(c)(I)(B). Similarly, section 19-4-116(3)(a) authorizes the

court to enter a judgment with a provision allocating parental

responsibilities “with respect to the child” and parenting time

privileges “with the child.” And section 19-4-130(1) states that, as

soon as practicable, the court shall enter a temporary or permanent

order that allocates the decision-making responsibility and

parenting time “of the child.”

¶ 33 Similar to the UCCJEA, the Children’s Code defines a child as

a “person under eighteen years of age.” § 19-1-103(18), C.R.S.

2019. This definition of a child applies only to a child after birth.

See People in Interest of H., 74 P.3d 494, 495 (Colo. App. 2003)

(holding that, after amending the applicable definition to remove

any reference to an unborn child, the General Assembly intended to

have the definition apply only to a child after birth); cf. People v.

Estergard, 169 Colo. 445, 448-50, 457 P.2d 698, 699-700 (1969)

(concluding that the prior definition of a child as a person under

eighteen “unless the context otherwise requires” included an

unborn child for purposes of determining paternity and support).

16
¶ 34 Nor are we persuaded by father’s arguments that the juvenile

court erred by relying on Nistico and Tonnessen. In Nistico, our

supreme court recognized that the determination of a child’s home

state is based on where the child has lived since birth. 791 P.2d at

1131. And in Tonnessen, a division of this court likewise concluded

that the trial court lacked jurisdiction to determine custody of a

child who had never resided in Colorado and had another home

state. 937 P.2d at 865.

¶ 35 Father asserts that Nistico and Tonnessen are not instructive

where, as here, the paternity case was initiated before the child’s

birth. We disagree. While a paternity case may be initiated before a

child’s birth, the home-state determination must be deferred until

the child’s birth and the child’s birth state becomes the home state.

Fleckles, 35 N.E.3d at 187-88. In other words, a court does not

acquire jurisdiction to make a child-custody determination simply

because a proceeding is initiated before the child’s birth and the

court has jurisdiction over the parents. See Mireles, ___ N.E.3d at

___, 2020 WL 2652274 (rejecting the father’s claim that jurisdiction

over an unborn child was automatically established with the filing

of the complaint for divorce because the trial court had jurisdiction

17
over the mother); see also Arnold v. Price, 365 S.W.3d 455, 460-61

(Tex. App. 2011) (rejecting the father’s contention that the trial

court had subject matter jurisdiction over child-custody issues

concerning an unborn child because the UCCJEA does not apply to

unborn children and jurisdiction was proper as to the mother).

¶ 36 As a result, the principles articulated in Nistico and Tonnessen

— a child’s home state is based on where the child has lived since

birth and a court generally lacks jurisdiction to determine custody

of a child who has another home state and has never lived in

Colorado — hold true regardless of whether a paternity proceeding

is initiated before or after a child’s birth.

¶ 37 Father also claims that “the law specifically does not provide

for the scenario presented in th[is] case” because mother “was

enjoined from leaving the state with the minor child” and Colorado

surely would have jurisdiction if mother had obeyed the injunction.

But, as the juvenile court recognized, section 19-4-105.5(5)(c)(I)(B)

restrains a parent from removing a child from the state — it does

not apply to an unborn child. Indeed, the Children’s Code contains

no provision “designed to restrict the conduct of a pregnant

woman.” H., 74 P.3d at 496.

18
¶ 38 In his reply brief, father expounds on his position. He claims

that a court has jurisdiction to issue the injunction when the

paternity case is filed, but the injunction does not come into force

until the child is born. According to father, the injunction does not

restrain a pregnant mother from leaving the state, but the mother

would be in violation of the injunction once the child was born in

another state. An injunction restraining a party from removing a

child from Colorado, however, would not apply to a child who was

born in another state and has never been in Colorado.

¶ 39 Father further asserts that the UPA must allow for expanded

jurisdiction beyond the UCCJEA because otherwise it would be

impossible for any court to acquire jurisdiction in a paternity action

before a child was born, even where the action did not address

parenting time or decision-making responsibility. As discussed,

however, the UCCJEA does not limit a court’s jurisdiction to make a

paternity determination or order child support. Rather, the

UCCJEA applies to child-custody or visitation aspects of paternity

cases. § 14-13-102 cmt.; see also M.M.V., ¶ 17.

19
¶ 40 For these reasons, we hold that the juvenile court properly

concluded that it lacks jurisdiction to make an initial child-custody

determination.

F. Mandatory Injunction

¶ 41 Finally, father contends that the juvenile court erred by

addressing whether mother had violated the temporary injunction

because that issue was not part of the magistrate’s ruling and was

unnecessary to address the jurisdictional determination. But the

magistrate explicitly noted that, after the injunction had been

issued, mother moved to New Hampshire without permission. In

context, this was effectively a determination that the injunction

applied to an unborn child and mother had violated it.

¶ 42 Mother presented this issue to the juvenile court in her motion

for review under section 19-1-108(5.5), C.R.S. 2019. Accordingly,

the court properly reviewed that aspect of the magistrate’s ruling.

III. Attorney Fees

¶ 43 Mother requests attorney fees under section 14-10-119, C.R.S.

2019. Section 14-10-119, however, does not govern the award of

attorney fees in a paternity proceeding brought under the Children’s

Code. See In re Parental Responsibilities Concerning N.J.C., 2019

20
COA 153M, ¶¶ 43-44, 50 (applying section 19-4-117, C.R.S. 2019,

to an attorney fee request in a paternity proceeding and comparing

its differences to an award under section 14-10-119).

Consequently, we deny mother’s request.

IV. Conclusion

¶ 44 The judgment is affirmed.

JUDGE FOX and JUDGE BROWN concur.

21