Opinion
March 11, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 43
Shephard Kole, Colorado Springs, for petitioner-appellant.
No appearance for respondent-appellee.
ENOCH, Judge.
David R. Hart, petitioner, appeals from a judgment entered relative to child support payments. We affirm.
Respondent, Nancy Hart, has entered no appearance in this appeal, but an agreed statement of the case approved by both parties and the trial court has been filed with this court as the basis for a determination of the issues raised. On April 11, 1973, a decree of dissolution of the marriage of the parties was entered. A stipulation and agreement previously entered into by the parties was found to be reasonable, and it was made a part of the decree. The agreement provided for each party to take custody of four of the eight children born of the marriage, and petitioner agreed to pay $400 a month child support for the four children in respondent's custody. Petitioner was represented by counsel during the negotiations for the agreement and in all court proceedings. No steps were taken to appeal the decree entered.
Petitioner made no support payments pursuant to said decree. At a hearing on August 6, 1974, the court entered judgment against petitioner in the sum of $6,800 for arrearages in support payments. At that time the court also entered other orders relative to custody and support payments. Petitioner then retained new counsel and on August 21, 1974, a hearing was held on petitioner's motion to reopen and reargue the judgment for arrearages on the child support. This motion was denied.
On September 12, 1974, a new motion by petitioner came on for hearing for reduction of child support and for reduction on the judgment for arrearages on substantially the same grounds as raised in the August 21 hearing. Petitioner contended that even though he had been represented by counsel in all proceedings there was a duty upon the court to examine his financial status in order to determine his ability to pay. The court rejected this argument and further found that the financial statements submitted by petitioner at the August 21 hearing and the instant hearing were not worthy of belief.
Thereafter, the court by order dated September 27, 1974, denied petitioner's motion for reduction of child support, and for reduction of the judgment for arrearages. The court also denied a motion by petitioner to permit him to pay the arrearages judgment in installments. It is from the results of this hearing that petitioner appeals.
The first issue raised by petitioner is: 'Whether the husband being of sound mind and full age having entered into an agreement for child support, and being represented by counsel at all stages of the proceedings, there is an obligation in the court to inquire into the ability of the husband to pay.' We decline to consider this issue. It is an obvious attempt by petitioner to obtain a review of and relief from his agreement and the decree entered thereon in April, 1973. That is a final judgment which at this late date is not subject to review.
The second issue raised is: 'Whether the court if it finds inability to pay may reduce a judgment which it has already entered for arrears of child support.' We find no merit in this issue. In the first place the whole issue is moot, because there was no finding by the court of petitioner's inability to pay. In any event, once they become due, monthly installments for child support carry with them the right in the recipient to obtain a judgment thereon, and a court has no authority to reduce retroactively matured installments for child support. Drazich v. Drazich, 153 Colo. 218, 385 P.2d 259. Consequently, the court has no authority to reduce a judgment entered on matured installments.
The next question presented is whether a court may allow installment payments of a judgment for arrearages of child support. This, too, is a belated attempt to seek review of a judgment despite a failure to file a motion for new trial and a notice of appeal. No such motions were filed after this judgment was entered August 6, 1974, and this issue is not properly before this court.
The last question as stated is: 'Whether the order for child support as fixed by the court on the 6th day of August, 1974, in the sum of $400 monthly, is excessive and should be reduced, upon remand.' This question, as worded, appears to be a direct attack on the judgment of August 6, 1974, to which we decline to respond for the reasons stated above.
If by this last question petitioner intended to assert an abuse of discretion by the court in denying the motion for reduction of child support at the September 12, 1974, hearing, we would disagree with petitioner. The agreed statement of facts contains nothing that pertains to factual circumstances at that time, and the court found that petitioner's financial statements were not worthy of belief. Where the agreed record before this court does not set forth all of the facts brought out at the hearing, we must presume that the judgment is correct. Shepherd v. Cox, 172 Colo. 28, 470 P.2d 25.
Judgment affirmed.
PIERCE and RULAND, JJ., concur.