Opinion
No. 78-1069
Decided March 15, 1979.
Father appealed from an order vacating the provisions of a prior dissolution of marriage decree which awarded him custody of his son.
Affirmed
1. DISSOLUTION OF MARRIAGE — Child Custody Issue — Service By Publication — — No Actual Notice — California Resident — Finding — No Jurisdiction — Proper. Where wife in dissolution of marriage proceeding was resident of California and had no actual notice of the proceedings, the trial court properly concluded that service by publication only did not vest it with jurisdiction to resolve child custody issue.
2. PARENT AND CHILD — Uniform Child Custody Act — Service by Publication — C.R.C.P. 4(h) Controls — Publication — One Time — Award of Custody — Improper. Since Uniform Child Custody Act does not specify the number of times that publication is required to effect notice under the Act, C.R.C.P. 4(h), which requires publication for four weeks, controls; hence, even if it is assumed that service by publication is constitutionally permissible in child custody matter, where publication was made only once, trial court's award of custody could not be justified under the Uniform Act.
Appeal from the District Court of the County of Delta, Honorable Robert Brown, Judge.
Briscoe Jones, Dorothy Wendt, for appellant.
Robert E. Krute, for appellee.
William B. Blair appeals from the trial court's final order vacating the provisions of a prior dissolution decree which awarded appellant custody of his son. We affirm.
The pertinent facts are not in dispute. Appellant filed a petition for dissolution of marriage on January 4, 1978, and therein requested custody of his son. Appellant also filed a verified motion alleging that appellee, Hazel M. Blair, could not be located at her last known address in California for purposes of personal service. On the basis of the motion, the court ordered that she be served by one publication in a newspaper and that a copy of the process be mailed to her last known address. The child at that time was residing with the appellee in California. Appellee made no appearance, and on May 5, 1978, a final decree of dissolution was entered, and appellant was awarded custody of his son. On September 8, 1978, appellee successfully obtained vacation of the custody portion of the court's decree based upon the court's conclusion that it previously had been without jurisdiction to grant custody to appellant.
[1] Contrary to appellant's contention, service by publication pursuant to the Uniform Dissolution of Marriage Act, see § 14-10-107(4), C.R.S. 1973, was not sufficient to vest the trial court with jurisdiction to resolve the custody issue. This Act specifically provides that, "in connection with every decree of dissolution of marriage and to the extent of its jurisdiction to do so, the court shall . . . make provision for child custody . . . ." Section 14-10-106(1)(b), C.R.S. 1973. (emphasis supplied) Here, appellant does not dispute the trial court's finding that appellee did not have actual notice of the proceedings. And, it is clear that appellee was residing in California at the time this action was commenced. Hence, the trial court properly concluded that it had no jurisdiction to resolve the custody issue in its original decree based upon service by publication only. See May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953); See also Viernes v. District Court, 181 Colo. 284, 509 P.2d 306 (1973).
[2] We also find no merit in appellant's contention that the trial court's award of custody was proper pursuant to the Uniform Child Custody Act. See § 14-13-101, et seq., C.R.S. 1973. Assuming, without deciding, that service by publication is constitutionally permissible, See May v. Anderson, supra, we, nevertheless, note that § 14-13-106(1)(d), C.R.S. 1973, does not specify the number of times that publication is required to effect notice under the Act. Hence, C.R.C.P. 4(h) controls. See C.R.C.P. 1(a) and 81(a). C.R.C.P. 4(h) requires that publication be made for four weeks, while here, publication was made only once.
The order vacating custody is affirmed.
JUDGE SMITH and JUDGE STERNBERG concur.