Hutchinson v. Hutchinson, 19799

• Decision Date: 26 December 1961
• Docket Number: No. 19799,19799
• Citation: 367 P.2d 594,149 Colo. 38
• Parties: Maxine L. HUTCHINSON, Plaintiff in Error, v. Jack L. HUTCHINSON, Defendant in Error.
• Court: Colorado Supreme Court

Page 594

367 P.2d 594

149 Colo. 38

Maxine L. HUTCHINSON, Plaintiff in Error, v. Jack L. HUTCHINSON, Defendant in Error.

No. 19799.

Supreme Court of Colorado, In Department.

Dec. 26, 1961.

Rehearing Denied Jan. 15, 1962.

J. H. Boutcher, John Gibbons, Denver, for plaintiff in error.

Joseph A. Myers, V. G. Seavy, Jr., Denver, for defendant in error.

MOORE, Justice.

We will refer to the plaintiff in error as plaintiff or the mother, and to defendant in error as defendant or the father.

The complaint filed by plaintiff is labeled as follows: 'Complaint Under Reciprocal Support.' In this ineptly drawn and rather confusing instrument it is alleged in substance that plaintiff and defendant were once husband and wife; that in 1944 a divorce decree was entered in a district court of the State of Texas; that two children were born as the issue of the marriage, one of whom was born following the divorce decree; that the said children (aged 16 and 15 respectively) were 'unemancipated and under the care and control of the plaintiff'; that they reside with the plaintiff in Arapahoe county; that 'the said minor children and the plaintiff herein are in need of [and] entitled to support from the defendant under the statutory and common law, and the Reciprocal Support Act of the State of Colorado by virtue of the Order of the [Texas court] * * * requiring the defendant to pay into the court the sum of Thirty Dollars ($30.00) per month'; that defendant 'has failed in his duty to support his aforesaid minor children by wilful refusal to properly provide for them since the date of said Order of Court and fifteen years have elapsed and the plaintiff is entitled to judgment by virtue of said decree in the amount of Five Thousand Five Hundred and Fifty Dollars * * *'; that defendant is able-bodied and working in Denver where he resides; and that 'the aforementioned dependent children are in need of support from said defendant herein in an amount not less than $100.00 per month.' The complaint contains the following statement: '* * * these proceedings are brought under the Reciprocal Support Laws of Colorado which are similar to such support laws in the State of Texas.' The foregoing quotations and summary are sufficient to explain why we have described the complaint as an 'ineptly drawn and confusing instrument.'

The prayer of the complaint contains six separate requests for relief. We quote two of them as follows:

'e. That an Order be entered herein entering judgment for relief as may be deemed fair and responsible and for such monthly payments as shall be proper from the defendant to the plaintiff, and that the Court consider the arrears of the defendant in the amount of Five Thousand Five Hundred and Fifty Dollars ($5,550.00) and if advised enter judgment therefor.

'f. Plaintiff further prays for such other further relief as the law provides may be determined by the Court of this State.'

Counsel for defendant filed a Motion to Dismiss and assigned as grounds, inter alia, the following:

'1. The Complaint fails to state a claim upon which any relief could be granted against this Defendant.

'2. The Court is without jurisdiction of the subject matter herein.

'3. The action is not brought in the name of the real parties in interest.'

The action was originally filed in the district court of Arapahoe county but was removed to the district court of the City and County of Denver on motion for change of venue.

Following a hearing on the Motion to Dismiss, the trial court ruled as follows:

'* * * The Court is going to dismiss this cause because the complaint does not state a claim for relief. A motion for a new trial is dispensed with. The Court takes the attitude that this is a final and appealable judgment.'

We conclude from the comments of the trial court and of counsel at the hearing, as disclosed by the transcript, that the court yielded to an erroneous compulsion to limit plaintiff to the theory of recovery under the Reciprocal Support Act, C.R.S. '53, 43-2-1 et seq., or that the action was to enforce an order of a Texas court awarding $30.00 per month support money, delinquent for a period of fifteen years, under the full faith and credit clause of the United States Constitution.

We can very well understand that the disconnected and rambling references to a judgment of the Texas court, and the label affixed to the complaint coupled with the statement that 'these proceedings are brought under the Reciprocal Support Laws of...