Opinion
No. 76-398
Decided December 23, 1976.
In dissolution of marriage action, trial court ordered husband to pay wife monthly support and to sell the family home and divide the proceeds. Husband neither paid support nor sold home. From trial court's finding of contempt, husband appealed.
Appeal Dismissed
1. DISSOLUTION OF MARRIAGE — Valid Dissolution Decree — Collateral Attack — — Subsequent Contempt Proceeding — Not Permitted. In a contempt proceeding relative to a dissolution of marriage decree, an attack upon the validity of the original decree has been held to be a collateral attack, and an erroneous or voidable decree cannot be so attacked, but such an attack is permissible if the original decree is void for lack of jurisdiction; accordingly, where the record disclosed that the question of jurisdiction had been decided in the original decree, the correctness of that judgment could not be collaterally attacked in a subsequent contempt proceeding.
2. NEW TRIAL — Public Records — Capable of Discovery — Prior to Original Trial — Not Sufficient Grounds — Grant of New Trial. In a contempt hearing with regard to a dissolution of marriage decree, where the husband attacked the original decree with an allegation that it was void because the trial court lacked jurisdiction, and asserted newly discovered evidence relative to the alleged disabilities of the parties, but his offer of proof disclosed that he was awaiting response to inquiries relative to certain unspecified public records, even if such records existed, since they could have been discovered prior to the original trial, they would not be grounds for a new trial.
3. CONTEMPT — Want of Jurisdiction — Justifying Disobedience — Court Order — Must Be Manifest — At Inception — Not Later Development. The want of jurisdiction such as will justify the disobedience of an order of court must be manifest from the inception of the proceedings, and not such as develops during a subsequent contempt hearing.
Appeal from the District Court of the City and County of Denver, Honorable John Brooks, Jr., Judge.
Armando C. de Baca, for appellant.
Harry K. Nier, Jr., for appellee.
This appeal comes on for determination upon appellee's motion to dismiss. We grant the motion and dismiss the appeal.
The marriage of the parties was dissolved by a decree in which the husband was ordered to pay the wife $200 a month for support. The decree further ordered that the family home, held in the husband's name, be sold, and the proceeds evenly divided. The husband failed to pay the support, and refused to sell the home. A contempt citation was issued, a hearing held thereon, and the husband was found to be guilty of contempt.
The husband appeals from that judgment. He does not question the correctness of the order, but attacks it on the ground that the original dissolution decree was void because the trial court lacked jurisdiction to consider the case. He asserts that there was no valid marriage because both parties had previous, existing marriages. The husband concedes that there has been no appeal from the decree, and that the time for appeal has expired.
[1] The primary issue here is whether the validity of the decree can be attacked in a contempt proceeding. Such an attack has been held to be a collateral attack. State ex rel. Hewson v. Hewson, 129 Ore. 612, 277 P. 1012, 63 A.L.R. 1216; A. Freeman, Judgments § 311 (5th ed.). While an erroneous or voidable decree cannot be attacked collaterally, Ex parte Spencer, 83 Cal. 460, 23 P. 395, if the original decree is void for lack of jurisdiction, then it can be so attacked. See Sholes v. Sholes, 72 Colo, 175, 209 P. 1046; Ex parte Cook, 42 Cal. App. 2d 1, 108 P.2d 46. Where there is no valid marriage the court has no jurisdiction to enter a divorce, or dissolution, decree. Pickett v. Pickett, 114 Colo. 59, 161 P.2d 520; Ex parte Cook, supra.
[2,3] At the contempt hearing, the husband asserted he had newly discovered evidence relative to the alleged disabilities of the parties. However, his offer of proof disclosed that he was awaiting response to inquiries relative to certain unspecified public records. If these records existed, they could have been discovered prior to the original trial, and thus would not be grounds for a new trial. Kennedy v. Bailey, 169 Colo. 43, 453 P.2d 808. Additionally, "The want of jurisdiction, such as will justify the disobedience of an order of court, must be manifest from an inspection of the proceedings at their inception, and not such as develops during the hearing." State ex rel Hewson, supra.
The record discloses that the issues relative to the validity of the marriage were fully presented at the dissolution trial and were expressly determined in the dissolution decree, adversely to the husband. The question of jurisdiction having already been decided in the original decree, the husband's only avenue of attack was by appeal. Since no appeal was taken, and the correctness of a valid judgment cannot be collaterally attacked in the manner here attempted, the appeal is dismissed.
JUDGE VAN CISE and JUDGE KELLY concur.