Glickman v. Mesigh

• Decision Date: 05 August 1980
• Docket Number: No. 80SA106,80SA106
• Citation: 200 Colo. 320,615 P.2d 23
• Parties: In re the Marriage of Sharon Kay GLICKMAN, Petitioner-Appellee, v. Charles Duane MESIGH, Respondent-Appellant.
• Court: Colorado Supreme Court

Page 23

615 P.2d 23

200 Colo. 320

In re the Marriage of Sharon Kay GLICKMAN, Petitioner-Appellee, v. Charles Duane MESIGH, Respondent-Appellant.

No. 80SA106.

Supreme Court of Colorado, En Banc.

Aug. 5, 1980.

Jerry L. Valentine, Denver, for petitioner-appellee.

Nathan Lee Baum, Denver, for respondent-appellant.

QUINN, Justice.

The respondent-appellant, Charles Duane Mesigh, brings this appeal from an order of the district court modifying a child support provision in a California decree of dissolution. ¹ The action in the district court was commenced by the petitioner-appellee, Sharon Kay Glickman, under section 14-11-101, C.R.S. 1973 (1979 Supp.). We affirm the judgment.

Sharon Kay Glickman (petitioner) and Charles Duane Mesigh (respondent) were divorced on June 8, 1971, pursuant to an interlocutory decree of dissolution entered by the superior court of Santa Clara County, State of California. A final decree of dissolution was entered on November 30, 1971. The California decree awarded custody of the couple's only child, Toni Michele Mesigh, to the petitioner. The respondent was not required to pay child support at that time, but the decree expressly provided that the provisions for child support "are subject to modification . . . by any court of competent jurisdiction, upon the motion of either of the parties and the proper showing of changed conditions justifying modification."

On January 18, 1978, petitioner filed a petition for child support, asserting that she was unable to provide necessary support for the minor child without financial assistance from the respondent. The trial court allowed the petitioner to file an amended petition under section 14-11-101, C.R.S. 1973 (1979 Supp.), which provides for the enforcement and modification of foreign decrees and judgments in cases for support of minor children. At the commencement of the Colorado action petitioner and her daughter resided in Virginia and respondent resided in Colorado. Personal service was effected on respondent in Colorado.

The trial proceedings were prolonged and complicated due to disputes relating to pleading and discovery. The petitioner originally failed to list her address on the complaint and the respondent moved to dismiss the petition. This information was subsequently furnished by letter to the respondent and the court denied the motion to dismiss. The respondent also filed a motion for a cost bond under section 13-16-101, C.R.S. 1973, and the trial court denied that motion. Respondent sought extensive discovery of financial data about petitioner's sources of income. The trial court denied respondent's motion to compel additional discovery and entered a protective order on behalf of petitioner.

On November 28, 1978, a hearing was held on the petition for child support and the court found that the financial conditions of the parties had changed substantially since the entry of the California decree. Accordingly, the court modified the California decree to require a payment by the respondent of $300 per month as child support commencing on December 1, 1978.

The respondent on this appeal asserts several grounds for reversal: the trial court lacked jurisdiction to enter the order of child support under section 14-11-101, C.R.S. 1973 (1979 Supp.); alternatively, if the trial court did have jurisdiction, the award of $300 per month child support was grossly excessive; the trial court erred in not dismissing the complaint for failure of the respondent to list her address, and additionally erred in failing to order a cost bond; and the trial court erred in its discovery rulings.

I. JURISDICTION

The respondent argues that the district court lacked jurisdiction to enter the order for child support under section 14-11-101, C.R.S. 1973 (1979 Supp.), for the reason that such order is in violation of the full faith and credit clause of Article IV, Section 1 of the United States Constitution. That constitutional provision mandates that "(f)ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." See 28 U.S.C.A. § 1738.

The full faith and credit clause requires that the California decree be enforced in courts of this state to the extent that it is final and unmodifiable. See, e. g., Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82 (1944); Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905 (1910); Gruber v. Wallner, Colo., 598 P.2d 135 (1979); Potter v. Potter, 131 Colo. 14, 278 P.2d 1020 (1955). However, Colorado courts need not give conclusive effect to a foreign decree when that decree is subject to modification by the courts of the rendering state. See, e. g., People ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 137, 91 L.Ed. 1133 (1947); Gruber v. Wallner, supra; Potter v. Potter, supra; Mock v. Mock, 155 N.J.Super. 282, 382 A.2d 702 (1977); Mittenthal v. Mittenthal, 99 Misc.2d 778, 417 N.Y.S.2d 175 (1979); In re Sagan, 396 A.2d 450 (Pa.Super.1978). When a modifiable decree of a sister state is before a Colorado court, the full faith and credit clause permits the Colorado courts to alter or modify it, just as the rendering state could. See, e. g., People ex rel. Halvey v. Halvey, supra; Barber v. Barber, supra; Vincent v. Vincent, 38 N.C.App. 580, 248 S.E.2d 410 (1978); McCullough v. Hudspeth, 389 A.2d 1242 (R.I.1978); Restatement (Second) of Conflicts of Laws § 109 (1971). Thus, since the California decree expressly provided for modification upon changed circumstances, the Colorado court had as much leeway to modify or alter the California decree as did the California court which rendered it.

Section 14-11-101, C.R.S. 1973 (1979 Supp.), clearly gives Colorado courts subject matter jurisdiction over foreign judgments for support of minor children:

"(1) Upon the docketing in a court of competent jurisdiction in this state of exemplified copies of all the written pleadings and court orders, judgments, and decrees in a case of divorce, separate maintenance, or annulment, or for support of minor children or a spouse, or for a combination of the same entered in any court of competent jurisdiction in any other state or jurisdiction having reciprocal provisions for a like enforcement of orders, judgments, or decrees entered in the state of Colorado and upon obtaining jurisdiction by personal service of process as provided by the Colorado rules of civil procedure, said court in this state shall have jurisdiction over the subject matter and of the person in like manner as if the original suit or action had been commenced in this state, and is empowered to amend, modify, set aside, and make new orders as the court may find necessary and proper so as to do justice and equity to all parties to the action according to the public policy of this state, and has the same right, power, and authority to enter orders for temporary alimony, support money, and attorneys' fees as in similar actions originating in this state."

This statute reflects a legislative effort to prevent the state of Colorado from becoming a haven for a parent against whom minimal or, as in this case, no support orders have been entered in the jurisdiction of rendition by granting Colorado courts explicit authority to enter appropriate orders in a manner consistent with the full faith and credit clause. ² See generally Woodhouse v. Woodhouse, 17 N.J. 409, 111 A.2d 631 (1955). Both the California judgment and California statutory law provide for modification of support orders upon a showing of conditions similar to those demonstrated here. Cal. Civ. Code §§ 4700, 4811 (West Supp. 1980). California law also provides for like enforcement of foreign support orders under conditions substantially identical to those set forth in section 14-11-101, C.R.S. 1973 (1979 Supp.). Cal. Civ. Proc. § 1699 (West Supp. 1980). The respondent correctly points out that this court in Minnear v. Minnear, 131 Colo. 319, 281 P.2d 517 (1955), held unconstitutional C.R.S. '53, 46-4-1, which dealt with enforcement of foreign decrees and was the predecessor to section 14-11-101, C.R.S. 1973 (1979 Supp.). In that case the former husband commenced an action in Colorado to set aside a property settlement agreement incorporated into a Florida divorce decree on grounds of fraud. Although the complaint requested the court to declare the Florida decree void, jurisdiction, nevertheless, was invoked under C.R.S. '53, 46-4-1. Because the statute addressed only the enforcement of foreign decrees, it had no application to a complaint to set aside a foreign decree. In holding that the complaint did not sufficiently state a claim to set aside the foreign judgment on grounds of fraud, Minnear stated that the legislature lacked constitutional authority to adopt the statute in question because it violated Article IV, Section 1, of the United States Constitution. To the extent that Minnear might be read to prohibit Colorado courts from modifying a foreign decree that is subject to alteration by the courts of the rendering state, we expressly overrule it. Minnear is contrary to the overwhelming weight of authority which we find persuasive. See, e. g., People ex rel. Halvey v. Halvey, supra; Barber v. Barber, supra; Gruber v. Wallner, supra; Potter v. Potter, supra; Elkind v. Byck, 68 Cal.2d 453, 439 P.2d 316, 67 Cal.Rptr. 404 (1968); Mock v. Mock, supra; Woodhouse v. Woodhouse, supra; Mittenthal v. Mittenthal, supra; Vincent v. Vincent, supra; In re Sagan, supra; McCullough v. Hudspeth, supra; see also Restatement (Second) of Conflicts of Laws § 109 (1971); Comment, Interstate Modification of Support Decrees, 28 Rocky Mt.L.Rev. 355 (1956).

Subsequent to Minnear the legislature has consistently re-enacted, with only minor amendments in form, the provisions of the original foreign decree statute adopted in 1947. Colo. Sess. Laws 1947, ch. 178 at 398; C.R.S. '53, 46-4-1; C.R.S. 1963, 46-4-1; section 14-11-101, C.R.S. 1973 (1979...