Connolly, Application of, No. 85CA0986

Docket NºNo. 85CA0986
Citation761 P.2d 224
Case DateFebruary 04, 1988
CourtCourt of Appeals of Colorado

Page 224

761 P.2d 224
56 USLW 2391
In re Application of Arthur CONNOLLY, Petitioner-Appellant,
and
Danny Abrams and Laura Abrams, Respondents-Appellees,
and Concerning Elizabeth Connolly and Allison Connolly, Appellees.
No. 85CA0986.
Colorado Court of Appeals,
Div. I.
Feb. 4, 1988.
Certiorari Granted (Abrams) Sept. 12, 1988.

Cox & Padmore, P.C., Jonathan C.S. Cox, Vicki M. Buchanan, Denver, for petitioner-appellant.

Page 225

Polidori, Rasmussen, Gerome & Jacobson, Katherine Campbell, John R. Rasmussen, Lakewood, for appellees.

PIERCE, Judge.

Prior Opinion Announced on December 10, 1987 WITHDRAWN.

Petition for Rehearing GRANTED.

Arthur Connolly (father) appeals the trial court judgment entered in favor of Danny and Laura Abrams (the Abrams), on behalf of the two minor children, Elizabeth and Allison Connolly, for arrearages of child support. We affirm in part and reverse in part.

In 1977, the marriage of Jean Connolly (mother) and the father was dissolved by decree. Pursuant to court order, the mother was awarded custody of the parties' two daughters, Elizabeth and Allison, and the father was ordered to pay child support of $350 per month directly to her. Temporary custody of Allison was later awarded to the father by court order in October 1978.

From 1977 until February 1983, the father made all support payments for Elizabeth directly to his ex-wife in accordance with the court order. Also, because Allison did not reside with him, the father made payments for her support directly to those persons with whom she was living.

In February 1983, the mother died, and the father ceased making payments for child support.

Prior to her mother's death, Elizabeth lived with her mother at the Abrams' residence, while Allison resided with various friends and relatives. After their mother's death, the father assumed custody and both children moved in with him. However, father and daughters found themselves incompatible, and, after approximately one month, both children moved to different locations. Elizabeth returned to the Abrams' home, while Allison moved in with the guardian specified in her mother's will. Except for that partial month period, neither child has lived with her father.

In November 1984, Allison, having attained the age of nineteen, filed a motion, by way of retained counsel, to intervene in the dissolution action seeking arrearages of child support allegedly accruing since the death of her mother. The Abrams later sought custody of Elizabeth and arrearages based on the dissolution decree for child support which they alleged also had accrued since the death of the mother. The father then initiated an action, and the various claims were consolidated in the proceeding at issue.

All parties stipulated to the Abrams obtaining custody of Elizabeth, and an agreement was reached with respect to the future care and support of Elizabeth. After a hearing on the issue of arrearages from the time of the mother's death until the filing of this action, the trial court concluded that the father was liable for arrearages of child support. The court determined the amount of arrearages due by multiplying the monthly award of $175 per month per child, as stated in the dissolution decree, by the number of months which had elapsed since the death of the mother, and it entered judgment in favor of the Abrams for that entire sum. The trial court then ordered father to pay all of Allison's attorney fees, 25% of the Abrams' attorney fees, and all fees of the guardian ad litem, who had been appointed by the court for Elizabeth. The court also directed father to make payments of support directly to Allison until her twenty-first birthday.

I.

The father contends that the trial court erred in awarding arrearages of child support based on the 1977 dissolution decree. We agree.

There is no dispute that the father owes a duty of support to his minor, unemancipated children. See McQuade v. McQuade, 145 Colo. 218, 358 P.2d 470 (1960). Nor is it contended that this duty terminated upon the mother's death. See In re Marriage of Icke, 189 Colo. 319, 540 P.2d 1076 (1975). Rather, the issue is whether arrearages could have accrued from the time of the mother's death until the time of this action pursuant to a dissolution decree which ordered the father to make support payments directly to the mother who is now deceased.

Page 226

Nothing in the decree itself provided for an alternative recipient of support payments in case of the mother's death. Also, § 14-10-117(1), C.R.S. (1987 Repl.Vol. 6B), provides that:

"Upon its own motion or upon motion of either party, the court may at anytime order that maintenance or support payments...

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1 practice notes
  • Abrams v. Connolly, No. 88SC98
    • United States
    • Colorado Supreme Court of Colorado
    • October 23, 1989
    ...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 t......
1 cases
  • Abrams v. Connolly, No. 88SC98
    • United States
    • Colorado Supreme Court of Colorado
    • October 23, 1989
    ...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 t......

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