Abrams v. Connolly, No. 88SC98

Docket NºNo. 88SC98
Citation781 P.2d 651
Case DateOctober 23, 1989
CourtSupreme Court of Colorado

Page 651

781 P.2d 651
58 USLW 2300
Danny ABRAMS and Laura Abrams, and Concerning: Elizabeth
Connolly and Allison Connolly, Petitioners,
v.
Arthur CONNOLLY, Respondent.
No. 88SC98.
Supreme Court of Colorado,
En Banc.
Oct. 23, 1989.

Page 652

Polidori, Rasmussen, Gerome and Jacobson, Peter L. Franklin, Lakewood, for petitioners.

Cox & Buchanan, P.C., Jonathan C.S. Cox and Vicki M. Buchanan, Denver, for respondent.

Chief Justice QUINN delivered the Opinion of the Court.

The question in this case is whether, pursuant to a written separation agreement incorporated into a decree of dissolution, a noncustodial parent's obligation of child support continues beyond the death of the custodial parent when the minor child remains in the physical custody of a person other than the noncustodial parent. The district court held that the noncustodial parent's obligation to pay child support imposed by the dissolution decree continued after the death of the custodial parent. In reversing the judgment of the district court, the court of appeals concluded that, because nothing in the decree itself provided for an alternative recipient of support payments in the event of the custodial parent's death, the obligation of a noncustodial parent to pay child support payments pursuant to the dissolution decree ceased upon the death of the custodial parent. In re Application of Connolly, 761 P.2d 224 (Colo.App.1988). We now reverse the judgment of the court of appeals and remand the case to that court with directions to return the case to the district court for the purpose of amending the judgment and for further proceedings on any unresolved issues.

Page 653

I.

The essential facts are undisputed. On July 14, 1977, the marriage of Arthur Connolly (father) and Jean Connolly (mother) was dissolved by decree entered in the District Court of Adams County. Prior to the entry of the decree the Connollys had entered into a separation agreement which was incorporated by reference into the decree. The dissolution decree awarded sole custody of the Connollys' two children, Allison, then age 11, and Elizabeth, then age 7, to the mother. The decree ordered the father to pay $175 per month for each child, for a total of $350 per month as child support, and further provided as follows:

Said child support shall continue until each of said children shall reach the age of eighteen (18) years, die, or become emancipated, except that in the event that said child or children shall be attending college on a full-time basis, [the father's] obligation to pay child support in the specified amount or such other amount as the parties shall agree upon, shall continue until said children shall reach the age of twenty-one (21) years.

On October 2, 1978, the mother consented to the father's assumption of temporary custody of Allison and also consented to a reduction of child support from $350 per month for the two children to $175 per month for Elizabeth, who remained in the custody of the mother. Soon after this temporary change of custody Allison began residing with various relatives and friends, and the father paid $175 per month as child support to the persons with whom she lived.

The mother died on February 28, 1983. Prior to her death the mother, along with her daughter Elizabeth, had lived with Laura and Danny Abrams for approximately two years. In her last will the mother designated Laura Abrams as Elizabeth's guardian. At the time of her mother's death Elizabeth moved to her father's home for approximately five weeks, but because this arrangement proved unworkable she then moved to the Abrams' home.

In November 1984 the Abrams, who were represented by counsel, filed in the District Court of Adams County a motion to intervene in the Connolly dissolution action. Although the Abrams did not expressly designate themselves as next friends of Elizabeth, they clearly indicated that they were requesting permission to intervene at the request of and on behalf of Elizabeth. The Abrams requested that they be granted physical custody of Elizabeth, that the father be ordered to pay child support arrearages for Elizabeth that had accrued since April 1983, that the father make future child support payments to the Abrams on behalf of Elizabeth, and that the father pay the Abrams' attorney fees and court costs in connection with the instant proceeding. In response to the Abrams' motion the father filed a petition for writ of habeas corpus in the District Court of Jefferson County, in which he sought custody of Elizabeth. The Abrams and the father then filed a joint stipulation for a change of venue to the District Court of Jefferson County, where all claims were subsequently consolidated for hearing. The district court permitted the Abrams to intervene in the Connolly dissolution action and appointed an attorney as guardian ad litem for Elizabeth.

The father and the Abrams reached a stipulation on temporary custody and future child support for Elizabeth. The stipulation granted the Abrams temporary custody of Elizabeth and required the father to pay future child support to the Abrams for the benefit of Elizabeth, and postponed for a future hearing the Abrams' request for permanent custody of Elizabeth. The stipulation was approved by Elizabeth's guardian ad litem and by the court. The issue not resolved by the stipulation was whether the father was liable for past child support payments during the period when Elizabeth, following her mother's death, resided with the Abrams.

The district court conducted a hearing on the issue of past child support and resolved it against the father. 1 Remarking that a

Page 654

parent has a continuing duty to support his or her children and that the children have a concomitant right to child support from the parent, and that a parent cannot modify or terminate the duty of child support without a court order, the district court concluded that a non-custodial parent's obligation to provide child support continues beyond the death of the custodial parent and that the father's obligation to pay child support imposed by the dissolution decree survived the death of the mother. The district court accordingly ordered the father to pay child support arrearages in the amount of $4,200 and twenty-five percent of the Abrams' attorney fees, and directed the entry of judgment on the Abrams' claim for child support arrearages. The judgment did not indicate whether the father should satisfy the judgment by paying the $4,200 to the Abrams for the use and benefit of Elizabeth or to pay that sum directly to Elizabeth. The court certified its ruling as an appealable judgment for purposes of C.R.C.P. 54(b).

The father appealed the judgment to the court of appeals. A divided panel of the court of appeals reversed that part of the judgment ordering the father to pay the arrearages for Elizabeth which had accrued subsequent to the mother's death. After noting that the dissolution decree contained no provision for an alternative recipient of child support payments in case of the mother's death, the majority held that, "absent some type of provision or court directive to the contrary, the father's duty of support pursuant to the decree terminated upon the mother's death, although his common law and statutory duty of support continued." In re Application of Connolly, 761 P.2d at 226 (emphasis in original). Consequently, according to the majority, neither Elizabeth nor the Abrams, acting on her behalf, had a "claim of right" to intervene in the Adams County dissolution action for those child support arrearages which had accrued subsequent to the death of the mother. 2 Judge Metzger dissented, reasoning that since the father had taken no action to modify or terminate his child support obligation, he was liable to Elizabeth for child support payments which had accrued subsequent to the mother's death. 761 P.2d at 227. To hold otherwise, according to Judge Metzger, would permit the father "to escape his support obligation by contending that his minor children were required to take legal action to ensure that the father fulfilled his duty to them." Id.

We granted the Abrams' petition for certiorari in order to consider whether, under the circumstances of this case, the father's obligation to pay child support for the benefit of Elizabeth continued beyond the death of the mother. 3 In resolving this

Page 655

question we will first address whether the obligation of a noncustodial parent to pay child support pursuant to a dissolution decree continues beyond the death of the custodial parent, and then, if such obligation does continue, whether the district court properly permitted the Abrams to intervene on behalf of the minor child for the purpose of seeking child support arrearages which had accrued subsequent to the mother's death.

II.

In reversing the district court's judgment, the court of appeals held that the father's duty to pay child support for the benefit of Elizabeth terminated upon the death of the mother. In so holding, the court of appeals emphasized that the decree did not provide "for an alternative recipient of support payments in case of the mother's death," 761 P.2d at 226, citing in this respect section 14-10-117(1), 6B C.R.S. (1987) which states that the court, upon its own motion or upon motion of either party, may order support payments to be made to the clerk of the court, as trustee, for remittance to persons entitled to receive the payments. We reject this analysis. Neither section 14-10-117(1) nor any other provision of the Uniform Dissolution of Marriage Act, §§ 14-10-101 to 14-10-133, 6B C.R.S. (1987 & 1988 Supp.) [hereinafter UDMA], requires a minor child to seek a court order authorizing the noncustodial...

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38 practice notes
  • People v. Nunez, No. 91SC576
    • United States
    • Colorado Supreme Court of Colorado
    • November 9, 1992
    ...the general rule is the belief that it is for the jury and not the court to determine the truth of the defendant's theory. Fuller, 781 P.2d at 651. As a result, a criminal defendant is entitled to an instruction embodying his theory of the case even if the only supporting evidence is highly......
  • Custody of C.C.R.S., In re, No. 92CA1142
    • United States
    • Colorado Court of Appeals of Colorado
    • November 18, 1993
    ...to a liberalized view as to the standing of non-parents to commence and to participate in custody proceedings. See Abrams v. Connolly, 781 P.2d 651 (Colo.1989); In re Marriage of Dureno, 854 P.2d 1352 (Colo.App.1992); In re Marriage of Trouth, 631 P.2d 1183 (Colo.App.1981); In re Marriage o......
  • In the Matter of Minor Child D.I.S.Alan Sidman v. Sidman, No. 09SC483.
    • United States
    • Colorado Supreme Court of Colorado
    • April 11, 2011
    ...establishing that the best interests of the child are better served by granting custody to a non-parent. See also Abrams v. Connolly, 781 P.2d 651 (Colo.1989) (concluding presumption exists that a parent has a first and prior right to custody of child, but presumption may be rebutted by evi......
  • Custody of C.C.R.S., Matter of, No. 94SC23
    • United States
    • Colorado Supreme Court of Colorado
    • January 30, 1995
    ...the welfare of the child--i.e., the best interests of the child--is better served by granting custody to a non-parent. Abrams v. Connolly, 781 P.2d 651, 657 (Colo.1989) (finding that custody of the child does not automatically vest with the non-custodial natural parent when the custodial pa......
  • Request a trial to view additional results
38 cases
  • People v. Nunez, No. 91SC576
    • United States
    • Colorado Supreme Court of Colorado
    • November 9, 1992
    ...the general rule is the belief that it is for the jury and not the court to determine the truth of the defendant's theory. Fuller, 781 P.2d at 651. As a result, a criminal defendant is entitled to an instruction embodying his theory of the case even if the only supporting evidence is highly......
  • Custody of C.C.R.S., In re, No. 92CA1142
    • United States
    • Colorado Court of Appeals of Colorado
    • November 18, 1993
    ...to a liberalized view as to the standing of non-parents to commence and to participate in custody proceedings. See Abrams v. Connolly, 781 P.2d 651 (Colo.1989); In re Marriage of Dureno, 854 P.2d 1352 (Colo.App.1992); In re Marriage of Trouth, 631 P.2d 1183 (Colo.App.1981); In re Marriage o......
  • In the Matter of Minor Child D.I.S.Alan Sidman v. Sidman, No. 09SC483.
    • United States
    • Colorado Supreme Court of Colorado
    • April 11, 2011
    ...establishing that the best interests of the child are better served by granting custody to a non-parent. See also Abrams v. Connolly, 781 P.2d 651 (Colo.1989) (concluding presumption exists that a parent has a first and prior right to custody of child, but presumption may be rebutted by evi......
  • Custody of C.C.R.S., Matter of, No. 94SC23
    • United States
    • Colorado Supreme Court of Colorado
    • January 30, 1995
    ...the welfare of the child--i.e., the best interests of the child--is better served by granting custody to a non-parent. Abrams v. Connolly, 781 P.2d 651, 657 (Colo.1989) (finding that custody of the child does not automatically vest with the non-custodial natural parent when the custodial pa......
  • Request a trial to view additional results

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