Carey v. Carey

• Citation: 486 P.2d 38,29 Colo.App. 328
• Decision Date: 30 March 1971
• Docket Number: Nos. 70--658,24156,s. 70--658
• Parties: Frank B. CAREY, Plaintiff in Error, v. Barbara A. CAREY, Defendant in Error. . II
• Court: Colorado Court of Appeals

Page 38

486 P.2d 38

29 Colo.App. 328

Frank B. CAREY, Plaintiff in Error, v. Barbara A. CAREY, Defendant in Error.

Nos. 70--658, 24156.

Colorado Court of Appeals, Div. II.

March 30, 1971.

Rehearing Denied April 20, 1971.

Certiorari Denied June 28, 1971.

Albert Cohen, Denver, for plaintiff in error.

Felix D. LePore, Denver, for defendant in error.

ENOCH, Judge.

This case was transferred from the Supreme Court pursuant to statute.

This is a divorce action in which the plaintiff in error, father, filed a motion for equitable relief from two judgments previously entered on arrearages for child support.

The parties were divorced on March 25, 1954. An order of support in the amount of $60 per month for their minor child, born June 22, 1951, was entered at that time. The mother testified that the father made payments regularly through 1957 and intermittently through 1960. Subsequent to the divorce, the mother remarried. In 1961, the mother and Gene Bender, her husband at that time, requested the father to consent to the adoption of the child by Bender. The father signed a consent to adoption form. However, the adoption proceeding was never completed due to the mother's divorce from Bender. The father testified that he had no knowledge of the Bender divorce and that he considered his obligation of support terminated as of the date that he executed the adoption consent. The mother further testified that some time in 1963, upon finding herself in 'desperate straits', she contacted the father and requested that he support the child. The father refused on the basis that he felt his obligation had terminated.

The mother remarried for the third time in 1964 to Cyril Rupp. She again requested the father to consent to the child's adoption, this time by Rupp. The father signed another adoption consent on August 31, 1964. However, this adoption proceeding, like the one in 1961, was also frustrated by the mother's divorce from Rupp.

The mother obtained two judgments for arrearages of support: the first, in the amount of $3,840, entered on December 2, 1964, before Judge Robert Fullerton, formerly of the Denver District Court; the second, in the amount of $1,440, entered on December 8, 1966, before Judge Henry E. Santo of the Denver District Court.

The father filed a motion for relief from the judgments on June 26, 1967, in the Domestic Relations Division of the District Court. The judge presiding in that division deferred consideration of the matter to Judge Santo, who had been assigned to another division. Judge Santo told the parties that he would hear the motion, but only insofar as it concerned his judgment entered December 8, 1966. The father was told that if he sought relief from the judgment entered by Judge Fullerton on December 2, 1964, that he would have to file the 'appropriate motions.'

At the conclusion of the hearing, the court denied the motion for relief as to the judgment of December 8, 1966.

On appeal, the father contends that the trial court erred in holding that there were no equitable grounds for relief and that the trial court erred in refusing to consider the judgment entered in 1964.

In considering these alleged errors, we adhere to the established principle that motions to vacate judgments are addressed to the sound discretion of the trial court and only when that discretion has been abused will the reviewing court interfere. Riss v. Air Rental, Inc., 136 Colo. 216, 315 P.2d 820. We also recognize the well-established rule of law that past due installments for support money under a valid order, constitute a debt and are in and of themselves judgments and a trial court had no power or authority to cancel such payments. Engleman v. Engleman, 145 Colo. 299, 358 P.2d 864. Berglund v. Berglund, Colo.App., 474 P.2d 800. There may, however, be grounds for equitable relief from such a judgment under certain circumstances as stated in Griffith v. Griffith, 152 Colo. 292, 381 P.2d 455.

I

The trial court did not err in holding that there were no equitable grounds for relief from its 1966 judgment.

The defense of laches is not available to the father in this case. Hauck v. Schuck, 143 Colo. 324, 353 P.2d 79, decided the question of whether the defense of laches is applicable in an action to enforce accrued child support payments ordered in a divorce action. That case held that the defense of laches was applicable only where the attempted enforcement is by contempt proceedings.

The court was correct in ruling that the element of reasonable reliance was lacking and thus, the father was not entitled to relief on the basis of estoppel.

It is essential in the proof of estoppel that a representation was made which was believed by the party claiming the benefits of estoppel and that he reasonably relied thereon and was influenced and misled thereby. Swedlund...