Opinion
No. 77-185
Decided December 22, 1977. Rehearing denied January 19, 1978. Certiorari denied April 24, 1978.
In proceedings some years after entry of divorce decree, trial court determined that judgment for arrearages in child support entered in 1975 was void and vacated it. Wife appealed.
Reversed
1. COURTS — Existence of Jurisdiction — Exercise of Jurisdiction — Distinguished. The existence of jurisdiction is to be distinguished from the exercise of jurisdiction in that the authority to decide a cause at all, and not the decision rendered therein, is what makes up jurisdiction; but when there is jurisdiction of the person and subject matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction.
2. DIVORCE — Jurisdiction Attaches — Children — Wards of State — Court — Retains Jurisdiction — Child Support — Enter Arrearages Judgment — Without Notice. Where jurisdiction of the parties in a divorce action attaches, the parties' minor children become wards of the State, the court retains jurisdiction over matters concerning their support, and the court may, without notice to husband, enter judgment for arrearages in child support payments.
3. Judgment — Child Support Arrearages — Within Court's Jurisdiction — Mistaken Reliance — Terminated Dependency Order — Judgment Voidable — Not Void. Where judgment for arrearages in child support arose out of divorce action, and not out of terminated dependency action order, the trial court had the requisite jurisdiction to enter the judgment for arrearages; and thus the court's mistaken reliance on the terminated dependency order in computing the amount of the judgment merely rendered the judgment voidable, not void.
4. JUDGMENT — Child Support Arrearages Judgment — Reasonable Time — Relief from Judgment — Six Months — Fourteen Months — Error — Set Aside. Since unappealed 1975 judgment for child support arrearages was merely voidable, not void, the husband had only a "reasonable time" after it was entered to seek relief under C.R.C.P. 60(b), and as to husband's contention that the judgment resulted from a mistaken belief in the continued existence of a terminated order, the "reasonable time" limitation of the rule is a period of six months; hence, since he waited nearly fourteen months to attack the judgment, the trial court erred in setting it aside.
Appeal from the District Court of the County of Adams, Honorable Harlan Bockman, Judge.
Kuttler Redman, P.C., J. E. Kuttler, John F. Webb, Jr., for plaintiff-appellant.
John L. Springer, for defendant-appellee.
In 1969, Homer Sauls (husband), was the defendant in both a dependency action instituted on behalf of his children and a separate maintenance action instituted by Maria Sauls (wife). He was ordered, in the dependency action, to pay $300 per month child support. However, this order was terminated in May 1970, when the court was informed of the existence of the separate maintenance action. Husband filed for divorce and at the hearing held on July 9, 1971, a divorce was granted where in the parties agreed, and the court ordered from the bench, "that the amount . . . being paid through a dependency action . . . continue as temporary child support until further order of this court." The court's order was not entered in the register of actions, nor was it included in the divorce decree.
On March 31, 1975, wife's motion in the divorce action for arrearages in child support payments, based upon the 1969 dependency action order, was granted and judgment was entered for $18,750 plus interest. In May 1976, husband moved to vacate the 1975 judgment, arguing it was void because the court had exceeded its jurisdiction. On December 7, 1976, the court determined the judgment was void and vacated the 1975 judgment. The wife appeals that judgment, and we reverse.
The questions to be determined upon this appeal are whether the 1975 judgment was void or merely voidable, and, if voidable, whether husband timely asserted his objections thereto.
[1] The validity of a judgment depends upon the court's jurisdiction over the person and the subject matter involved. A judgment rendered without jurisdiction is void. McLeod v. Provident Mutual Life Insurance Co., 186 Colo. 234, 526 P.2d 1318; In re the Marriage of Zubia, 38 Colo. App. 471, 558 P.2d 1003. In Klancher v. Anderson, 113 Colo. 478, 158 P.2d 923, the Supreme Court distinguished jurisdiction from the exercise of jurisdiction:
"The authority to decide a cause at all, and not the decision rendered therein, is what makes up jurisdiction; and when there is jurisdiction of the person and subject matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction. . . .
"Jurisdiction is the power to hear and determine . . . [and] the power to decide necessarily carries with it the power to decide wrongly as well as rightly. . . ."
[2] Where jurisdiction of the parties in a divorce action attaches, the parties' minor children become wards of the State, McMillin v. McMillin, 114 Colo. 247, 158 P.2d 444, the court retains jurisdiction over matters concerning their support, see § 14-10-122, C.R.S. 1973, and the court may, without notice to husband, enter judgment for arrearages in child support payments. Jenner v. Jenner, 138 Colo. 149, 330 P.2d 544.
[3] Here, the record reflects the 1975 judgment arose out of the divorce proceeding, and not the dependency action, and therefore the court had the requisite jurisdiction to render a judgment regarding arrearages in child support payments. When the court mistakenly relied on the existence of a terminated dependency order in computing the amount of the judgment, it erred in its factual determination and in its application of the law to the issues of the case. However, since the court had jurisdiction, the judgment was voidable and not void. See McLeod, supra.
[4] Accordingly, since no appeal was taken from the 1975 judgment and since it was merely voidable, not void, husband had only a "reasonable time" after it was entered to seek relief under C.R.C.P. 60(b). Husband's contention, i.e., that the judgment resulted from a mistaken belief in the existence of a terminated order, constitutes grounds for relief under C.R.C.P. 60(b)(1), and thus, under the rule, the "reasonable time" limitation for avoiding the effects of the judgment upon such grounds cannot exceed six months. Therefore, having waited nearly fourteen months, he is too late to attack the judgment, and it is error for the court to have set it aside.
The judgment is reversed and the cause is remanded with directions to reinstate the 1975 judgment for arrearages.
JUDGE COYTE and JUDGE PIERCE concur.