Opinion
No. 71-188
Decided November 2, 1971. Rehearing denied November 16, 1971. Certiorari granted March 13, 1972.
Divorce action. Following plaintiff's failure to respond to request for admission regarding the allegation that she had remarried, trial court, by summary judgment, terminated defendant's alimony obligations. Plaintiff appealed.
Affirmed
1. DISCOVERY — Request for Admission — Effect — Failure to Respond — Admission — Statements Made. The effect of a failure to respond to a request for admission is an admission of the truth of the statements made in the request.
2. EVIDENCE — Failure to Respond — Request for Admission — Wife Remarried — — Tantamount — Sworn Testimony. Where wife failed to respond to request for admission that she had remarried, the evidentiary effect of this failure to respond was tantamount to sworn testimony that she had in fact remarried, and trial court was correct in finding that there was nothing of any probative value to offset such implied sworn testimony.
3. JUDGMENT — Summary — Following — Failure to Respond — Request for Admission — Tantamount — Full Hearing. Where wife failed to respond to request for admission that she had remarried, and trial court thereupon entered summary judgment terminating husband's alimony obligation, such judgment was tantamount to a judgment entered after a full hearing or trial during the course of which both plaintiff and defendant had the opportunity to offer the best evidence available to them.
Appeal from the District Court of the City and County of Denver, Honorable Gerald E. McAuliffe, Judge.
Leland S. Huttner, for plaintiff-appellant.
Johnson and Makris, P.C., Hans W. Johnson, for defendant-appellee.
This is an appeal from a summary judgment terminating the appellee husband's obligations to pay alimony to the appellant wife. The summary judgment in question was entered approximately ten years following the time that the wife secured a decree of divorce, which decree, pursuant to stipulation between the parties, provided for payment of alimony to the wife on the condition that the obligation of the husband to pay alimony would cease upon the remarriage of the wife.
Following the filing of a motion for reduction of alimony, there was properly served upon the wife a request for admission in accordance with the provisions of C.R.C.P. 36. Under such request, the wife was directed to either admit or deny the fact that she had entered into a marriage subsequent to the time of her divorce from the husband. It is uncontroverted that the wife never responded to this request, although ultimately, in response the husband's motion, counsel acting on behalf of the wife did file a motion for attorney's fees and costs and written interrogatories directed against the husband and made a general entry of appearance on behalf of the wife. No attempt was made in the trial court to secure protective orders on behalf of the wife or to extend the time in which she could respond to the request for admission.
More than six months after the husband filed his motion for reduction of alimony, such motion, and a motion for summary judgment relating thereto, came on for hearing, but only after a continuance had been granted by the trial court in response to a request from the wife's counsel. The wife was not present at that hearing and did not testify. Although her counsel was present, no evidence of any probative value was entered during the hearing which would establish that the wife had not remarried following the time of her divorce from the appellee husband. Following this hearing, the trial court granted the husband's motion for summary judgment, specifically finding that there was no valid evidence satisfactory to the trial court which would contradict or rebut the presumption created by the wife's failure to admit or deny the request for admission concerning her possible remarriage after divorce. It is that finding and the judgment based thereon that the wife has appealed.
[1] The judgment of the trial court was correct and is affirmed. It is settled law in this jurisdiction that the effect of a failure to respond to a request for admission is an admission of the truth of the statements made in the request. McGee v. Heim, 146 Colo. 533, 362 P.2d 193. The evidence so implied stands in the same relation to the case as that of sworn testimony. Beasley v. United States, 81 F. Supp. 518.
[2] Considering the evidentiary effect of the wife's failure to respond to the request for admission, the trial court had before it at the time of the hearing on the husband's motion evidence which was tantamount to sworn testimony that she had in fact remarried following her divorce from the husband. We agree with the trial court's finding that there was nothing of any probative value to offset such implied sworn testimony. Accordingly, in view of the express provisions of the property settlement agreement which was a part of the decree of divorce, the husband's obligations to pay alimony had terminated, as a matter of law, and the summary judgment was properly granted.
[3] In affirming the trial court's judgment, we are aware that a summary judgment, which has the effect of denying the litigant the right to a trial of his case, may be sustained only in the clearest of cases. McCormick v. Diamond Shamrock Corp., 175 Colo. 406, 487 P.2d 1333. However, this restraint does not apply in the present case. In this matter the summary judgment is tantamount to a judgment entered after a full hearing or trial, during the course of which both the plaintiff and the defendant had the opportunity to offer the best evidence available to them and following which the trial court entered judgment on the the basis of that evidence.
Judgment is affirmed.
JUDGE ENOCH and JUDGE PIERCE concur.