Opinion
Philip Hornbein, Jr., Roy O. Goldin, Denver, for plaintiff-appellee.
Henry, Cockrell, Quinn & Creighton, Victor Quinn, Denver, for defendant-appellant.
SILVERSTEIN, Chief Judge.
Defendant-appellant (the university) appeals from a judgment declaring it to be in contempt of court for failure to comply with an earlier judgment entered September 8, 1972. We affirm.
Plaintiff-appellee (the union) originally sued the university to enforce, as to one employee (Henderson)The vacation provision of its collective bargaining contract with the university. The relevant portion of the contract provides as follows:
'VACATIONS. An employee whose standard workweek is thirty-five (35) hours or more shall be eligible for an annual vacation with pay based on the following schedule:
One (1) to five (5) years' employment--ten (10) working days.
Five (5) years and over to fifteen (15) years' employment--fifteen (15) working days.'
The complaint alleged that Henderson had a standard workweek of 40 hours, that he had been in defendant's employment for 5 years as of January 9, 1972, and that he was therefore entitled to an annual vacation of 15 days under the contract. The complaint further recited that Henderson has applied for 15 days' vacation, that said application had been refused by the university, and that plaintiff had no adequate remedy at law. The union therefore prayed for a decree of specific performance commanding the university to permit Henderson to take the annual vacation of quiring it to permit its employee to take 15 days to which he was entitled under the contract.
In its answer the university denied that Henderson was entitled to 15 days of vacation on January 9, 1972, alleging that the intent of the parties in agreeing to the above quoted contractual provision was to continue the university's previous practice of allowing employees with 5 years or more of service to accrue paid vacation at the rate of 1 1/4 days per month.
In a counterclaim the university sought an interpretation of the vacation provision, asking the court to decide whether annual vacation was to be accrued on a monthly basis or only upon completion of a full year, with no accrual of paid vacation for any fractional part of a year. The university prayed that if the court found that Henderson was entitled to 15 days of paid vacation as of the fifth anniversary of his employment, the court should also find that annual paid vacation could not be accrued on a monthly basis.
The parties stipulated that Henderson was covered by the collective bargaining agreement and that he completed his 60th month of employment with the university on January 9, 1972.
After a trial to the court, the court found that the provisions of the contract were clear and unambiguous and did not provide for accrual of vacation credits on a monthly basis or on any basis other than a year's employment. It also found that the university had breached its contract with the union by refusing to allow Henderson a paid vacation of 15 working days to which he was entitled. The court, in its judgment and decree entered on September 8, 1972, stated, inter alia:
'(1) The defendant is ordered and commanded to forthwith grant its employee, Kenneth Henderson, five working days paid vacation, which, Together with the ten working days paid vacation heretofore granted by the defendant to the said Henderson, shall constitute Henderson's 15 working days paid vacation to which he became entitled on January 9, 1972. . . .' (emphasis supplied)
No appeal was taken from that judgment.
On December 5, 1972, the union moved to have the university cited for contempt for failure to comply with the September 8 decree. A citation was issued to the university to show cause why it should not be adjudged guilty of contempt of court, and a hearing was held on January 8, 1973.
At the hearing Mr. Davis, the university's director of physical plant, in whose department Henderson was employed, testified that he believed he had complied with the order by changing Henderson's vacation records to show an addition of 5 days in the vacation 'earned' column for January 1972. The record, which was introduced in evidence, showed that Davis had merely added 5 days to Henderson's accrued vacation time, as computed prior to the September judgment even though that judgment stated that the contract did not provide for accrual of vacation credits, except on the basis of a year's employment. It was admitted that Henderson had not been given the 5 additional days' vacation ordered by the court, except for the credit on his record. The same record indicated that he had used up all his credits by the 10 days already taken.
At the conclusion of the hearing, the trial court found that the university had not complied with the order of the court issued on September 8, 1972; that the university had never asked the court for any clarification; and that the calculations in the records of Mr. Davis were aimed toward averting the court's order. The court then adjudged that the university was guilty of contempt for failure and neglect to comply with the order of the court of September 8, 1972, but allowed the university the opportunity to purge itself of its contempt by making arrangements with the union, no later than January 15, 1973, to provide Henderson with the 5 additional days of paid vacation to which he was entitled in 1972 as previously decreed.
The university timely filed a motion for a new hearing on the contempt matter, stating as grounds therefor: (1) that the university had in fact complied with the earlier decree in that Henderson had been 'granted' an additional 5 days as required, and (2) that the court erroneously misinterpreted its own prior judgment and decree so as to award Henderson more than 5 additional working days of paid vacation. The motion for new hearing was denied, and this appeal followed.
The university argues that the effect of the contempt order is to disregard vacation previously taken by an employee under the accrual system. The union urges, and we agree, that the university is merely attempting, in this appeal, to relitigate the same issues which were decided by the final judgment of September 8, 1972. That judgment clearly stated that on January 9, 1972 Henderson became entitled to 15 working days of paid vacation. In order to comply with that order, the university should have credited Henderson with 15 days' vacation time on January 9, 1972, instead of the 5 days it gave him. The September 8 judgment also contained an express finding that the contract did not contemplate the monthly accrual basis preferred by the university. If the university disagreed with these findings and conclusions and desired to escape the effects thereof, it should have perfected a timely appeal from the September 8 judgment. Having failed to do so, the university became bound thereby.
This case falls within the rule expressed in Smith v. Schlink, 44 Colo. 200, 99 P. 566:
'No exceptions were taken to the ruling of the trial court . . . wherefore plaintiffs in error cannot now complain of such ruling. That the court had jurisdiction of the parties and the subject matter cannot be questioned. This being true, and it not appearing that the judgment was not within the issues presented by the pleadings, however erroneous it may be, the judgment cannot be held to be void, so as to bring this case within the rule that disobedience of a void decree does not constitute contempt of court.'
Here no question is raised as to the court's jurisdiction of the parties and the subject matter, and the September 8 judgment was squarely within the issues presented by the pleadings. The order contained in the September 8 judgment is therefore binding and contempt will lie for its disobedience.
The evidence produced at the contempt hearing supports the trial court's finding that the university did not comply with the order contained in the earlier judgment.
The judgment is affirmed.
SMITH and RULAND, JJ., concur.