Opinion
Nov. 12, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 428
Brenman, Sobol & Baum, Leo T. Zuckerman, Richard M. Kranzler, Denver, for plaintiff-appellant.
Allen J. Kincaid, Denver, for defendant-appellee.
PIERCE, Judge.
The parties to this action were granted a decree of divorce on October 8, 1971. Attendant to the divorce decree, on December 15, 1971, District Court Judge Marvin W. Foote entered a permanent order which provided that plaintiff 'shall have as her sole and separate property the 1967 Ford Stationwagon.' The order also awarded the family home to plaintiff, subject to a $3500 equity in the defendant. Plaintiff was given the right to 'charge' against the equity any delinquent child support payments and one-half of any marital debts and mortgage installments paid by plaintiff.
In September 1973, plaintiff submitted a motion seeking an order declaring that defendant no longer had any existing equity in the home. The motion contained allegations that the defendant was delinquent in child support in the sum of $1015, that plaintiff had expended $1367 to pay marital debts which included $500 on the automobile, and that one-half of the house payments made by plaintiff amounted to $2166. Judge Foote transferred the hearing on the motion to Judge Richard D. Greene. After hearing, Judge Greene found that defendant was delinquent in child support payments in the sums of $1115, and that the plaintiff had paid to creditors of the parties the sum of $32.96 on behalf of the defendant. The order was silent as to the house payments allegedly made by plaintiff.
Judge Greene also found:
'that at the time of the entry of the order of December 1, 1971, that by the award of the 1967 Ford stationwagon to the plaintiff, Judge Foote had intended to also order that the indebtedness due and owing against said motor vehicle to the American National Bank in the sum of $750, be the indebtedness of the plaintiff.'
Therefore, none of the $500 which plaintiff allegedly had paid for the automobile was charged against the defendant's equity. After Judge Greene's order, defendant retained an equity of $2351.04 in the home.
Plaintiff has appealed to this court, arguing that Judge Greene erred, in that he was without power to interpret Judge Foote's intention as to the automobile, and in that he failed to rule upon plaintiff's allegation that $2166 was chargeable against defendant's equity as a result of plaintiff's house payments. We agree with her contentions.
I.
Originally, C.R.S. 1963, 37--4--17, dealing with multiple-judge district courts, provided 'that neither of said judges shall have power to vacate or modify a judgment, decree or order rendered or made by another judge of the same court.' The current version of that provision, 1967 Perm.Supp. C.R.S. 1963, 37--12--39, deleted the above-quoted clause. Plaintiff's first contention relies upon a statement made in Sunshine v. Robinson, 168 Colo. 409, 451 P.2d 757:
'We emphasize, however, that the deletion of this clause by the 1967 legislature does not import a blanket grant of authority to do what the clause had formerly proscribed. Rather, it was the intent of the legislature to permit the final determination of matters which of necessity must be considered by a second judge.'
Plaintiff argues that Judge Greene's interpretation of Judge Foote's order amounted to a modification of that order, in contravention of the declaration in Sunshine.
A doctrine which forbids one district court judge to vacate or modify a judgment, decree, or order made by another judge of the same court gives efficacy to the rules governing the judicial appellate process. As stated in In re Estate of Haas, 33 A.D.2d 1, 304 N.Y.S.2d 930, appeal dismissed, 26 N.Y.2d 646, 307 N.Y.S.2d 671, 255 N.E.2d 782:
'The reason for the rule, it has been said, is that any other would render impossible any finality of the decisional process, reduce the administration of justice to anarchistic shambles, destroy the morale of the courthouse, create uncertainty, confusion, and insecurity among the court personnel, place the litigant in a revolving door leading from judge to judge as each judge alters the other's determination, array the contending jurists in professional fratricidal conflict, partisan in nature, and prevent the ultimate determination of the rights of the parties by appropriate appellate review of a final definitive determination.'
The Sunshine decision implicitly created such a doctrine for Colorado, but left uncertain the exact parimeters of the judicially-created doctrine. That case did allow a second district court judge to vacate a judgment entered by another judge where the allegations made by movant would have required the first judge to vacate his own judgment. This holding is congruous with that in Denver Electric & Neon Service Corp. v. Gerald H. Phipps, Inc., 143 Colo. 530, 354 P.2d 618, which applied the unamended C.R.S. 1963, 37--4--17. These cases are both instances where a second judge is allowed to make a determination regarding a matter of law.
However, for Judge Greene to render his 'interpretation' of Judge Foote's order, it was necessary that he make a Factual determination of Judge Foote's intent. This, in effect, resulted in a modification of Judge Foote's order. Where the record discloses no disqualification or incapacity of Judge Foote to rule on this matter, Judge Greene's action is prohibited by the Sunshine doctrine.
II.
Plaintiff's motion alleged three independent charges against defendant's equity: delinquencies in child support, plaintiff's payment of marital debts, and plaintiff's house payments. Plaintiff complains that it was reversible error for Judge Greene to fail to rule on the third asserted charge. Again, we agree. The issue had been properly placed before the court and plaintiff was entitled to a determination upon hearing of the motion. Carey v. Carey, 29 Colo.App. 328, 486 P.2d 38; See also Board of County Commissioners v. District Court, 172 Colo. 311, 472 P.2d 128. This issue also requires a factual determination of Judge Foote's intent and therefore it likewise should be determined by him.
Judgment reversed and the cause remanded for further proceedings not inconsistent with this opinion.
BERMAN and STERNBERG, JJ., concur.