Harrod v. Harrod

• Decision Date: 25 June 1974
• Docket Number: No. 73--352,73--352
• Citation: 34 Colo.App. 172,526 P.2d 666
• Parties: Carlton W. HARROD, Plaintiff-Appellant, v. Beth Miller HARROD, Defendant-Appellee. . I
• Court: Colorado Court of Appeals

Page 666

526 P.2d 666

34 Colo.App. 172

Carlton W. HARROD, Plaintiff-Appellant, v. Beth Miller HARROD, Defendant-Appellee.

No. 73--352.

Colorado Court of Appeals, Div. I.

June 25, 1974.

As Modified on Denial of Rehearing Aug. 7, 1974.

Certiorari Denied Oct. 7, 1974. Selected for Official Publication.

Joseph P. Jenkins, P.C., Estes Park, for plaintiff-appellant.

Van Cise, Phillips & Goldberg, Richard F. Mauro, Denver, for defendant-appellee.

PIERCE, Judge.

This is an appeal from a judgment making a division of marital property.

The lawsuit was initiated by plaintiff as an action in partition under C.R.S.1963, 103--1--1 et seq. The property in question was purchased by the parties as joint tenants in 1951. In 1966, the ownership was converted by an exchange of deeds into a tenancy in common. It is mountain property with various improvements including a lodge and other buildings which were used annually for a summer music camp for students (primarily the wife's business enterprise), and also, for a part of the summer seasons, for the housing of summer guests (primarily the husband's concern). In 1964, at the close of the summer season, the husband left the wife and went to California where, in 1970, he obtained, ex parte, a final decree of dissolution of marriage. The husband then returned to Colorado in 197i and commenced the instant action.

The wife filed several counterclaims to the partition action alleging, among other things, that by virtue of the California divorce, she was entitled to a division of the marital property in Colorado. A third counterclaim called for an accounting from the husband with regard to moneys received by him as profit from the guest operation on the subject property and also, for certain alleged debts owed by the husband to the wife.

At the beginning of the trial to the court, the trial judge ruled that the case would be tried only as a division of marital property case. Following the presentation of evidence by both sides, the trial court entered extensive findings of fact and conclusions of law. After making various findings relating to the relative contributions of the parties to the acquisition, maintenance, and improvement of the subject property and relating to the income produced by the two separate enterprises carried on on the property, the court found the reasonable market value of the property to be $74,000. The court then awarded the entire property to the wife and also made an award to the husband of $10,000 'as a full settlement and division of property rights.'

The trial court also entered conclusions of law stating:

'Both parties are before the court and this court has jurisdiction to enter judgment and decree in this matter, not as a partition action but in order to settle the property rights of the parties arising out of the marriage.'

I

On appeal, the husband first alleges that the trial court erred in treating the action as an action for the division of marital property instead of a partition action. The argument is made, apparently, on two bases: (1) that the court was precluded from making the division by the California divorce decree which did not provide for a division of marital property, and (2) that even if the California decree did not bar the proceeding, there was no provision for the exercise of such jurisdiction under the divorce law in effect at the time the lawsuit was filed (C.R.S.1963, 46--1--1 et seq.). We disagree with both of plaintiff's 'jurisdictional' contentions.

Plaintiff's first contention is answered by the concept of 'divisible' divorce. It is undisputed that the California court did not have personal jurisdiction over the wife in the divorce action. In the absence of personal jurisdiction over the absent party, a divorce court may not enter final awards with respect to alimony or the division of property. Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456; Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561. Thus, while full faith and credit requires recognition of the California Divorce decree as terminating the marriage relationship, that decree could not affect (and did not purport to affect) the final settlement of financial matters between the parties. Davis v. Davis, 70 Colo. 37, 197 P. 241. See also H. Clark, Domestic Relations § 11.4 at 315.

There is no dispute here that the trial court had personal jurisdiction over both of the parties and that the California divorce decree was effective to terminate the marriage status. Nor is it significant that neither of the parties is presently a resident or domiciliary of this state. While domicile must be established in order to convey subject matter jurisdiction for the purposes of an original divorce action, Viernes v. District Court, Colo., 509 P.2d 306, there is no constitutional impediment to the exercise of jurisdiction over the...