Custody of Nugent, In re, 96CA0309

• Decision Date: 18 September 1997
• Docket Number: No. 96CA0309,96CA0309
• Citation: 955 P.2d 584
• Parties: In re the CUSTODY OF Mackenzi C. NUGENT. Forest A. BELL, Appellant and Cross-Appellee, v. Devon Courtney NUGENT, Appellee and Cross-Appellant. . I
• Court: Colorado Court of Appeals

Page 584

955 P.2d 584

In re the CUSTODY OF Mackenzi C. NUGENT.

Forest A. BELL, Appellant and Cross-Appellee, v. Devon Courtney NUGENT, Appellee and Cross-Appellant.

No. 96CA0309.

Colorado Court of Appeals,

Div. I.

Sept. 18, 1997.

Rehearing Denied Oct. 30, 1997.

Certiorari Denied May 18, 1998.

Winzenburg, Leff & Mitchell, Lawrence B. Leff, Carey Spence Gunn, Denver, for Appellant and Cross-Appellee.

John E. Fitzgibbons, Denver, for Appellee and Cross-Appellant.

Opinion by Judge METZGER.

Forest A. Bell (mother) appeals and Devon Courtney Nugent (father) cross-appeals the trial court's denial of father's motion to dismiss for lack of jurisdiction and dismissal of the case without prejudice. Father also cross-appeals the trial court's orders that converted the action to a custody proceeding and approved a "purported, unsigned stipulation" concerning custody, child support, and property division. We affirm in part, reverse in part, vacate in part, and remand the cause for further proceedings.

This case was originally commenced by mother as a dissolution of marriage action. In addition to alleging that the parties had entered into a common law marriage, mother asserted that she had been a resident and domiciliary of Colorado for 90 days preceding the filing and that father was a member of the Armed Forces, who was on active submarine duty stationed in Connecticut. Mother attempted on several occasions to have father personally served on military bases, but he refused to accept service. Ultimately, father was personally served in Colorado in April 1994, when he came to visit the minor child.

Permanent orders were initially scheduled for hearing in September 1994. In August 1994, father wrote a letter to the district court and sought a continuance of that hearing until July 13, 1995, stating that he would be at sea for a major part of the interim period. He also asserted the rights available to him under the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C.App. § 520 (1994) (Act), and stated that the letter was not intended as an appearance, as submission to the jurisdiction of the court, or as a waiver of his rights under the Act. Hearing on permanent orders was thereafter rescheduled to March 15, 1995, and father was advised of the new date by mail sent to the Virginia address set forth in his letter.

In October 1994, mother requested that the court appoint an attorney for father in accordance with the Act. That motion was granted on January 25, 1995, but the written order is blank as to the name of the appointed attorney. The register of actions shows that mother simultaneously advised the court that father had obtained his own attorney and that it was not necessary for one to be appointed for him under the Act.

On March 5, 1995, an attorney entered a general appearance on behalf of father and a hearing on permanent orders was rescheduled for July 21, 1995. That hearing apparently was vacated, and in August 1995, father's attorney filed a response, not signed by father, to mother's petition for dissolution. That response denied that the parties had been married at common law and requested that the court determine that the parties were not married and that father was not the father of the minor child. It also requested that the court award father reasonable attorney fees and costs and enter such other orders as the court deemed appropriate. It made no specific mention of jurisdiction.

Approximately two weeks later, father's counsel moved to withdraw. While that motion was pending, mother filed several documents: a "Motion to Enforce Stipulation for Custody, Child Support and Property Settlement and Amendment of Pleadings," an accompanying order, a "Stipulation for Custody, Child Support and Property Settlement" (signed only by wife's attorney), and a "Motion to Amend Petition for Dissolution of Marriage to a Petition for Custody, Child Support and Property Settlement." The record contains no certificate of mailing for the Stipulation; the certificate of mailing for the Amended Petition is blank; the certificate of mailing attached to the Motion to Enforce while signed, refers only to the Motion to Amend.

The trial court granted the motion for withdrawal of father's counsel on September 22, 1995. And, on October 6, 1995, noting that no response had been filed, it granted mother's motion to enforce the stipulation and her motion to convert the action to a custody proceeding.

The effect of these orders was to award custody of the minor child to mother, to require father to pay child support of $857.63 based upon application of the statutory guidelines, and to award mother a house, which was titled in father's name. Father was awarded the tax exemption for the child and was required to maintain life insurance to secure his child support obligation.

On October 18, 1995, father, through new counsel, filed a motion to dismiss for lack of subject matter and personal jurisdiction. On December 1, 1995, after mother responded and father filed a reply, the court entered the following order:

This matter comes before the Court on [father's] Motion to Dismiss for Lack of Jurisdiction. The Motion is denied. This matter was set on July 21, 1995 for permanent orders. The date was vacated by agreement of the parties. The file has been inactive and no further proceedings have been set by the parties. This matter is dismissed without prejudice at this time.

Mother filed a timely motion to reconsider; father filed a response; the court summarily denied the motion.

I.

Initially, we note that another division of this court discharged an order to show cause why this appeal should not be dismissed for lack of a final order based on mother's response that the matter could not be saved by refiling. Mother noted that it took over a year to effect service on father and, because of his transfer of duty station to Europe, "any chance of ... serving ... him all over again is close to zero." In light of this unchallenged assertion, we view this situation to be the type of special circumstance indicating that the action cannot be saved. See e.g. Buckmiller v. Safeway Stores, Inc., 690 P.2d 883 (Colo.App.1984), rev'd on other grounds, 727 P.2d 1112 (Colo.1986). Moreover, we note that the trial court's orders, entered before the order of dismissal, purported to resolve completely the rights of the parties with respect to the issues raised. See Brody v. Bock, 897 P.2d 769 (Colo.1995). Thus, we will address the merits of the parties' assertions.

II.

Mother interprets the trial court's December 1995 order as a dismissal for failure to prosecute. Based on that interpretation, she asserts the court abused its discretion by dismissing the case without complying with the procedural requirements for such dismissal. In contrast, father contends that the dismissal was proper because of various procedural irregularities. However, on cross-appeal, he asserts that the trial court should have granted his motion to dismiss for lack of jurisdiction. Because the issues raised are interrelated, they will be discussed together.

A.

Personal jurisdiction may be waived expressly or by implication. People in Interest of Clinton, 762 P.2d 1381 (Colo.1988). Personal service upon a natural person within the forum state enables that state to exercise personal jurisdiction over the party served and satisfies due process requirements. Burnham v. Superior Court, 495 U.S. 604, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990); O'Brien v. Eubanks, 701 P.2d 614 (Colo.App.1984). In such a case, the minimum contacts analysis of jurisdiction is inapplicable, O'Brien v. Eubanks, supra, because that doctrine substitutes for a defendant's physical presence as the basis for jurisdiction only if the defendant is not served within the forum state. Burnham v. Superior Court, supra.

Here, since father was properly served within Colorado, and since his attorney entered a general appearance without contesting jurisdiction, the court had personal jurisdiction of father. Accordingly, the trial court properly denied father's motion to dismiss for lack of personal jurisdiction.

B.

Father contends, however, that numerous procedural defects, which he alleges were violative of the Act, had the effect of depriving the trial court of jurisdiction over his person. We disagree.

50 U.S.C.App. § 520 (1994) establishes certain requirements that must be met before a default judgment may be entered against a member of the military. They include filing of a bond to indemnify that member in the event the judgment is set aside in whole or in part, and the appointment of an attorney to represent the member's interests. It also contains a provision to set aside a judgment if the member can establish prejudice and a meritorious or legal defense to all or part of the action. 50 U.S.C.App. § 520(4) (1994).

50 U.S.C.App. § 521 (1994) also provides that, upon application of the member, the action shall be stayed, unless the court determines that the member's ability to prosecute or defend is not materially affected by reason of military service.

The purpose of the Act is to protect members of the military from having default judgments entered against them without their knowledge; the Act does not prevent the entry of such a judgment when there has been notice of the pendency of the action and the member has had adequate time and opportunity to appear and defend. Roqueplot v. Roqueplot, 88 Ill.App.3d 59, 43 Ill.Dec. 441, 410 N.E.2d 441 (1980). See also Fifth Third Bank v. Kuney, 107 Ohio App.3d 601, 669 N.E.2d 271 (1995).

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