Opinion
Alex Stephen Keller, Denver, for plaintiff in error.
Edward Olde, Englewood, for defendant in error.
DUFFORD, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties occupy the same position in this appeal as they did in the trial court. They will be referred to here by their trial court designations or as husband and wife.
In 1955, the wife was granted a decree of divorce from the husband by a superior court within the State of Washington. That decree also awarded custody of the children to the wife and ordered the husband to pay $60 per month for their support. At the time of that decree the wife and children resided within the State of Washington.
In July of 1967, the children were in Colorado and in the physical custody of the husband. At that time the husband, as plaintiff, alleging that the children were residing within Colorado and within the jurisdiction of the Colorado trial court, instituted this action to secure an order granting him legal custody of the children. He also sought and received an order restraining the defendant from contacting the children and from inducing them to leave Colorado. Subsequently, the parties signed and filed with the Colorado trial court a stipulation providing that the husband would have temporary legal and physical custody of the children. The stipulation also specified that at the end of the 1967--1968 school year the Colorado trial court would determine permanent custody. It was agreed that while the children were in the husband's custody, he would be relieved of any support obligation, but that if the custody of the children were changed to the wife, the court would enter a reasonable support order.
The children did in fact return to the State of Washington in November of 1967. The wife thereafter filed a motion for support in this action and by order of April, 1968, the trial court ordered the defendant to pay support of $60 per month, commencing as of November, 1967. The husband made no challenge in the trial court to the contents of this order and it was approved as to form by his counsel. However, no payments were made by the husband. He was subsequently cited for, and sentenced for, contempt of the Colorado court's April order. He has appealed. His theory here is that exclusive jurisdiction of the child custody and support question was in the Washington court. He argues from this that the Colorado court's order was void for want of jurisdiction and that, consequently, he is cleansed of any contempt for disregarding its mandate.
When a child's domicile is changed he may no longer be subject to the exclusive control of the court which first awarded his custody, and questions concerning the custody and support of children can be litigated separate and apart from divorce proceedings. Scheer v. District Court, 147 Colo. 265, 363 P.2d 1059; and see McQuade v. McQuade, 144 Colo. 11, 354 P.2d 597.
In this case the children were within this state at the time the husband sought to modify their custody status and his support obligations. He voluntarily submitted himself to the jurisdiction of the Colorado court and asserted that the children were within its jurisdiction. The wife acquiesced to his position. The husband never asserted in the trial court that the domicile of the children remained within or had been returned to the State of Washington. The record indicates that an action which was then pending in the trial court and which was brought under our reciprocal support statute to enforce the Washington court's support order was dismissed at the urging of the husband upon the strength of the stipulation as to custody filed in this action. We are faced then with a situation where the husband repeatedly sought affirmative relief in our trial court but now seeks to avoid the mandate of its order by challenging its jurisdiction. Prior decisions of our Supreme Court reject such tactics. Aaberg v. District Court, 136 Colo. 525, 319 P.2d 491; Graham v. Francis, 83 Colo. 346, 265 P. 690; Whipple v. Wessels, 66 Colo. 120, 180 P. 309. Therefore, it is our opinion that the husband cannot now challenge the jurisdiction of the Colorado trial court for the purpose of defeating his conviction of contempt.
The husband's contention that the support order upon which the contempt citation was based was void because it was not based upon any evidence of need was not raised in the trial court and we decline to treat it on appeal. Platte Valley Elevators Co. v. Gebauer, 127 Colo. 356, 256 P.2d 903.
The defendant's contention that she is entitled to receive attorney's fees is disregarded since the record does not disclose that this matter was ever presented to the trial court for determination and no order appears to have been entered with respect to that question. R.C.P.Colo. 111.
The judgment of the trial court is affirmed.
DWYER and PIERCE, JJ., concur.