Opinion
No. 74-081
Decided September 4, 1974.
From a judgment denying petitioner's request for division of property pursuant to provisions of Uniform Dissolution of Marriage Act, petitioner appealed.
Reversed
1. DISSOLUTION OF MARRIAGE — Property — In Colorado — Possession of Petitioner — Respondent — Served By Publication — Trial Court — Obtains Jurisdiction — Determine Disposition. Under circumstances in which non-resident respondent in dissolution of marriage action is served by publication, but petitioner has possession of property, located in Colorado, and that property is specifically described in petition as an asset subject to disposition, the trial court acquires control of the property by virtue of its jurisdiction over petitioner and thereby obtains jurisdiction to determine the appropriate disposition of that property.
Appeal from the District Court of Arapahoe County, Honorable Marvin W. Foote, Judge.
Arapahoe County Legal Aid, Jon P. Genser, for petitioner-appellant.
No appearance by respondent-appellee.
Petitioner, Johna Lou Ramsey, appeals from a judgment denying her request for division of property pursuant to the Uniform Dissolution of Marriage Act, 1971 Perm. Supp., C.R.S. 1963, 46-1-7. We reverse.
By her petition, petitioner requested a decree dissolving the marriage between the parties, custody of four children, support orders, maintenance, and division of property. Property owned by the parties in joint tenancy was included by legal description in the petition as an asset to be divided. Because respondent was a nonresident, service was obtained by publication. No entry of appearance or responsive pleading was filed by respondent to the petition, and petitioner therefore mailed notice of the final hearing date to respondent at his last known address.
On the date set for final hearing, respondent did not appear. After presentation of evidence by petitioner, the district court determined that it had jurisdiction over the parties and "subject matter" of the action. The court then entered a decree of dissolution, awarding custody of the children to petitioner (reserving reasonable visitation rights to respondent), but refused to enter any orders relative to division of the property located in Colorado. The court concluded that the provisions of 1971 Perm. Supp., C.R.S. 1963, 46-1-13(1)(a), preclude division of property when personal service is not obtained upon a non-resident respondent. We disagree.
1971 Perm. Supp., C.R.S. 1963, 46-1-13(1)(a), provides:
"In a proceeding for dissolution of the marriage, or legal separation, or a proceeding for disposition of property following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall set apart to each spouse his property and shall divide the marital property without regard to marital misconduct, in such proportions as the court deems just . . . . "
This statute does not require personal service upon a non-resident as a prerequisite to division of property. The scope of the court's jurisdiction over a nonresident respondent is established by 1971 Perm. Supp., C.R.S. 1963, 46-1-7(4), which provides that the respondent must be served in the manner provided by the Colorado Rules of Civil Procedure. In cases affecting specific property or in other proceedings in rem, C.R.C.P. 4(g) and (h) specifically authorize service by publication upon a nonresident.
[1] An action for dissolution of marriage is a proceeding in rem, see Owen v. Owen, 127 Colo. 359, 257 P.2d 581, and in the present case affected specific property by virtue of petitioner's request for disposition of the joint tenancy property. Moreover, where, as here, a petitioner under the Uniform Act has possession of property located in Colorado, the property being specifically described in the petition as an asset subject to disposition, the court acquires control of the property by virtue of its jurisdiction over petitioner, and the court thereby obtains jurisdiction to determine the appropriate disposition of that property. See Hoff v. Armbruster, 125 Colo. 324, 244 P.2d 1069.
The judgment is reversed and the cause remanded with directions for further proceedings not inconsistent with the views expressed in this opinion.
JUDGE COYTE and JUDGE VAN CISE concur.