Opinion
Jan. 23, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Hamilton, Sherman, Hamilton & Shand, P.C., E. B. Hamilton, Jr., Durango, for plaintiffs-appellants.
McKelvey & McKelvey, LaVerne H. McKelvey, Durango, Zarlengo & Kirshbaum, Howard M. Kirshbaum, Denver, for defendant-appellee.
COYTE, Judge.
This is an appeal from a judgment of the district court of Archuleta County dismissing appellants' complaint for declaratory judgment to determine legal custody of the child of defendant-appellee.
The facts are as follows: The child in question, Miquela Daugaard, was born to Margaret Daugaard on October 3, 1968. Since the mother was unable to properly care for the child, she placed the child temporarily in the care of the Kelloggs on April 5, 1969. In December of 1969, after receiving medical treatment and regaining her health, the mother requested return of her child. The Kelloggs refused to return the child to her and on December 8, 1969, instituted a dependency and neglect proceeding in the La Plata County District Court seeking to have the child declared a dependent and neglected child and to have the parental rights of the mother terminated and custody awarded to them or to the La Plata County Department of Public Welfare. After a hearing, on January 19, 1970, the La Plata County District Court declared the child dependent and neglected, terminated the parental rights of the natural mother, and ordered that the child remain in the custody of the Kelloggs. This decision was appealed to the Supreme Court.
The Supreme Court, finding no factual basis for a termination of parental rights, reversed the judgment of the La Plata County District Court and vacated the decree of dependency and termination of parental rights and remanded the case to the district court of La Plata County, with directions to dismiss the petition. Daugaard v. People, Colo., 488 P.2d 1101.
The district court of La Plata County, in compliance with the decision and remittitur of the Supreme Court, entered an order, dated November 17, 1971, vacating its former decree of dependency and termination of parental rights and dismissed with prejudice the dependency and neglect petition filed by the Kelloggs. The court further ordered the Kelloggs to return the child to her natural mother. This they refused to do, and instead, on November 26, 1971, filed a suit in the district court of Archuleta County seeking a declaratory judgment decreeing that they should have legal custody of the child. The mother filed a motion to dismiss the suit based upon her affidavit and the decree of the La Plata County District Court ordering return of the child to her mother.
After the action for a declaratory judgment had been filed in the Archuleta County District Court, the Kelloggs filed a motion in the La Plata County District Court requesting the court to modify its order directing return of the child. They contended that the order of the Supreme Court was not intended to prevent a new determination of the custody based upon circumstances which had changed since the last hearing on the matter in 1969. The district court of La Plata County, by order dated January 14, 1972, denied the Kelloggs' motion and, on March 17, 1972, again ordered the child returned to her natural parent, setting a date for the return of no later than April 15, 1972.
On April 7, 1972, plaintiffs filed a motion in the district court of Archuleta County seeking an immediate hearing on custody. The court denied the motion on April 10, 1972, on the basis that the instant suit and the proceedings in the district court of La Plata County involve the same parties and the same issues. The Archuleta County District Court further ruled that to grant a hearing on custody would in effect circumvent and render meaningless the decree of the district court of La Plata County ordering the Kelloggs to return the child to her natural mother, and that it should not nullify the order of the district court of La Plata County.
On May 5, 1972, the district court of Archuleta County denied another motion for a hearing on custody for the same reasons as contained in the court's ruling of April 10, 1972, and on May 15, 1972, on motion of the defendant, it dismissed the complaint for declaratory judgment for the reasons stated in its April 10th ruling. Plaintiffs appeal. We affirm.
The Kelloggs did not appeal either order of the district court of La Plata County ordering them to return the child to its mother. Instead they attempted to collaterally attack these orders by a new action seeking a declaratory judgment on the issue of legal custody in another county. This they cannot do. See Koon v. Barmettler, 134 Colo. 221, 301 P.2d 713; Hill v. Benevolent League, 133 Colo. 349, 295 P.2d 231.
Since the La Plata County District Court had jurisdiction of the custody dispute between the parties and had issued a final order with regard to the subject matter of that dispute, the attempted declaratory judgment procedure in another county was improper, and the Archuleta County District Court was thus correct in dismissing Kelloggs' complaint. At the time of the institution of the declaratory judgment action, Kelloggs were already before the La Plata County District Court on the custody issue and were subject to orders issued by that court both prior and subsequent to their institution of the present action.
Judgment affirmed.
PIERCE and SMITH, JJ., concur.