Opinion
Feb. 23, 1972
Editorial Note:
This case has been marked 'not for publication' by the court.
Gertrude A. Score, Denver, for plaintiff-appellant.
Gerald Himelgrin, Denver, for defendant-appellee.
PIERCE, Judge.
This is an appeal from a summary judgment of dismissal of an action in annulment brought by William T. Smitheal, herein referred to as husband, against Louise V. Smitheal Taylor.
The parties were married on January 12, 1957. We wife filed a complaint in divorce against the husband in November of 1966 (Civil Action No. B--97202). The husband answered and moved for summary judgment upon the affirmative defense that the marriage between the parties was void Ab initio on the ground that the wife had never been divorced from her former husband, George F. Wagner. After a full hearing by the trial court in Civil Action No. B--97202, an order and extensive findings of fact were entered denying husband's motion for summary judgment. In that order, the trial court found that the marriage of the parties was valid and that there had been a divorce between the wife and George F. Wagner. A decree of divorce from Smitheal was thereafter granted to the wife by the trial court. No appeal was taken.
The husband thereafter brought the present action, framed as one in annulment, praying for a declaration that the marriage of January 1957 was null and void Ab initio on the ground that it was bigamous and for a declaration that the judgment of divorce and property settlement entered in Civil Action No. B--97202 be declared null and void. Wife moved for summary judgment of dismissal, asserting that the issues in this case had been fully heard and determined in Civil Action No. B--97202 and that the trial court's ruling therein was res judicata as to those issues. Her motion was granted by the trial court. The husband appeals.
The record shows that final judgment on the merits had been entered in Civil Action No. B--97202 between the same parties and on the identical issues sought to be determined here. We find no error in the trial court's determination that this action was barred by the doctrine of res judicata. Brennan v. Grover, 158 Colo. 66, 404 P.2d 544; Pomponio v. Larsen, 80 Colo. 318, 251 P. 534. See Kaminsky v. Kaminsky, 145 Colo. 492, 359 P.2d 675.
Judgment affirmed.
COYTE and SMITH, JJ., concur.