Opinion
Sept. 6, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Ward, McKibben, Constantine & Pred, Frank C. McKibben, Denver, for plaintiff-appellant.
Clayton D. Tipping, Grand Junction, for defendant-appellee.
PIERCE, Judge.
Carol Masters Boyer (wife) and Keith Masters (husband) were divorced in 1962. At that time, provisions were made for the support of and visitation with the couple's two children. In January 1965, husband moved the court for permission to withhold further support payments on the grounds that wife had secreted the children from him, thereby depriving him of reasonable visitation. The court entered on order which provided that husband was to make the next two regular support payments into the registry of the court, there to be retained until such time as wife notified the clerk of the court and husband, in writing, of the place where husband could exercise visitation with his children. The order was never appealed. Although the 1965 order was indefinite as to what husband was to do if he did not receive the notice, it was clear as to what wife was to do if she expected further support payments. She received notice of the order shortly after it was issued and, although she was well aware of its contents, she deliberately avoided any contact with the court or husband until October 1968, when she notified the clerk of the court and husband of the whereabouts of the children. During the interim, husband suspended support payments, but upon being apprised of the whereabouts of his children, he immediately resumed support payments.
In August 1970, wife moved for an increase in support payments. She also sought to have the amounts unpaid during the time she had secreted the children from husband declared as arrearages and reduced to judgment, which the trial court, by order, refused to do.
Wife appeals from the 1970 order. She contends that the order entered by one judge in 1965 was improperly interpreted by another judge of the same court in 1970, when it was held that the support payments were contingent upon visitation rights. She further contends that, even if the interpretation of the 1965 order were correct, the holding would be contrary to law.
From a careful review of the 1965 order and remarks made by the judge when that order was entered, it is clear that the second judge's interpretation of that order in 1970 was soundly based on the record. See Orchard City Irrigation District v. Whitten, 146 Colo. 127, 361 P.2d 130.
Although wife may be correct in her theory that the 1965 order was contrary to law, she did not appeal it, and she is bound by its terms. She willfully refused to comply with the order and, since husband's obligation to pay was contingent upon her compliance, the order never became operative as to him. Under the express terms of the order, no arrearage accrued during the period when husband was not informed of the children's whereabouts. The court was, therefore, correct in refusing her claim for arrearage.
Judgment affirmed.
COYTE and ENOCH, JJ., concur.