Opinion
Rehearing Denied May 1, 1973.
Page 1289
Gelt & Grossman, Herbert H. Galchinsky, Irvin M. Kent, Denver, for plaintiff-appellee.
Robert Leland Johnson, Denver, for defendant-appellant.
COYTE, Judge.
The parties were divorced and final property orders were entered by the court in November of 1968. The orders provided in part:
'8. The defendant shall within a reasonable time after the completion of his Federal and State Income Tax Returns, both individual and business, deliver unto the Plaintiff a copy of said returns. This provision of this order shall commence with the 1968 returns and for each year thereafter until further order of this court.'
In 1972, plaintiff filed a motion for a contempt citation, alleging that defendant had deliberately and willfully failed to furnish plaintiff with copies of his 1969 and 1970 federal and state income tax returns, and that, although numerous demands had been made upon said defendant to furnish plaintiff with said returns, he refused, and continued to refuse to comply therewith. The motion was accompanied by affidavit in which plaintiff verified the matters set forth in the motion.
A citation to show cause was issued to which defendant filed a motion to dismiss, which motion was denied. He then appeared in response to the citation at the time set for hearing, but refused to present any testimony. Plaintiff was not present, and no evidence was presented on her behalf. The court found that defendant was in contempt of court for willful failure to comply with the court order which required defendant to furnish plaintiff with the copies of his income tax returns.
Defendant appeals, contending: (1) that the order from which he appealed is void as a matter of law, and (2) that there was no evidence to support the finding made by the trial court that he had failed and refused to deliver the copies of the income tax returns. We disagree, and affirm the findings of the trial court.
The order of the court requiring defendant to furnish copies of income tax returns to plaintiff became a final judgment and defendant did not appeal from the same. The provision as contained in the order is not void as a matter of law. Since it was an appealable order in 1968 when entered, defendant's failure to appeal the disputed provision at that time precludes him from now claiming that the entry of the order was arbitrary and capricious. See Fitzgerald v. District Court, Colo., 493 P.2d 27.
When the court issued its citation for defendant to show cause, it had before it the motion of plaintiff's attorney filed in behalf of plaintiff supported by plaintiff's affidavit. This motion and affidavit constituted a prima facie showing that defendant had failed to comply with the property division order and justified the trial court in issuing its order to show cause. By its terms, the order to show cause required defendant to appear and to show cause as to why he should not be held in contempt of court for his failure to obey the property division order. However, defendant presented no testimony, and the allegations in plaintiff's affidavit stood unrefuted. Under this state of the record, the trial court could properly find defendant had failed to show cause why he should not be held in contempt. See Zobel v. People ex rel. Kyle, 49 Colo. 142, 111 P. 846. C.R.C.P. 107(d).
Judgment affirmed.
PIERCE and SMITH, JJ., concur.