In re Marriage of Dickson, 97CA1824.

• Decision Date: 29 October 1998
• Docket Number: No. 97CA1824.,97CA1824.
• Citation: 983 P.2d 44
• Parties: In re the MARRIAGE OF Diana L. DICKSON, Appellee, and Alan R. Kinman, Appellant, and Concerning El Paso County Child Support Enforcement Unit, Appellee.
• Court: Colorado Court of Appeals

983 P.2d 44

In re the MARRIAGE OF Diana L. DICKSON, Appellee, and

Alan R. Kinman, Appellant, and Concerning

El Paso County Child Support Enforcement Unit, Appellee.

No. 97CA1824.

Colorado Court of Appeals, Div. II.

October 29, 1998.

As Modified on Denial of Rehearing December 10, 1998.

Certiorari Denied September 7, 1999.

John L. Maska, Colorado Springs, Colorado, for Appellee Diana Dickson.

Alan R. Kinman, Pro Se.

Law Offices of Donald W. Belveal, Christina K. Eigel, Colorado Springs, Colorado, for Appellee El Paso County Child Support Enforcement Unit. Opinion by Judge CASEBOLT.

Alan R. Kinman (husband) appeals the permanent orders entered in conjunction with the dissolution of his marriage to Diana L. Dickson (wife). The El Paso County Child Support Enforcement Unit appears concerning child support issues. We affirm in part, reverse in part, and remand for further proceedings.

In 1990, the parties, then residents of California, married in the state of Nevada. In 1992, wife moved to Colorado, bringing with her an orphan child. The parties thereafter petitioned to adopt that child in a California court, and an adoption decree was entered in California on December 28, 1992.

Wife filed her petition for dissolution in a Colorado court in 1994, requesting, among other things, that orders enter concerning the custody and support of the child. Husband signed a waiver and acceptance of service, and specifically consented to the jurisdiction of the court to determine all issues raised in the pleadings.

The parties entered into a separation agreement wherein husband acknowledged the marital relationship and the adoption of the child. However, on August 7, 1995, husband filed a competing petition for dissolution of the marriage in a California court.

Husband then discovered that wife apparently had failed to obtain a written decree of dissolution of a previous marriage in California. Thus, on August 16, 1995, husband filed an amended petition in the California court seeking annulment of the marriage on the ground of fraud and that there was a prior existing marriage. Wife was served with the amended petition. Two months later, in a decree signed on October 16, 1995, the California court granted husband an annulment on those grounds.

In the meantime, wife took steps to cure the technical defect in the dissolution of her prior marriage. Since that dissolution was lacking only a final, written order, wife obtained a written decree dissolving her prior marriage nunc pro tunc to 1984. That decree was also signed on October 16, 1995, the same day husband obtained the annulment, but was entered by a different California judge from a different county.

Also in August 1995, husband filed motions in the Colorado court to declare the marriage invalid and to set aside the adoption, on the ground that wife had failed to dissolve her previous marriage before marrying husband.

In 1996, husband filed another action in California requesting that the adoption be set aside, alleging that the orphanage had not consented to the adoption and that the California court had lacked jurisdiction to enter the adoption decree. The two California cases dealing with custody (the annulment of the marriage and the petition to set aside the adoption) were transferred to Colorado pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA), §XX-XX-XXX, et seq., C.R.S.1998, and the federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. §1738A (1998).

On this and other evidence, the Colorado court determined that it had personal jurisdiction over the parties and concluded that the marriage between them was valid because wife had cured any defect in her prior dissolution by obtaining a written decree. The marriage was then dissolved, and husband was ordered to pay a portion of wife's attorney fees and costs.

Finding that husband's motion to set aside the adoption was time-barred because of the application of Colorado's statute of limitations, the court affirmed the validity of the adoption. Sole custody of the child was granted to wife, and husband was granted no parenting time at this juncture. Husband was ordered to pay child support, with interest to accrue at the rate of 12% on arrearages.

I.

Husband contends that the Colorado court was bound to recognize the validity of the California annulment and that, therefore it had no jurisdiction to enter a decree of dissolution. We agree.

Under U.S. Const. art. IV, §1, a final judgment of one state must be given full faith and credit in every other state. Marworth, Inc. v. McGuire, 810 P.2d 653 (Colo.1991).

Here, the record reveals that on October 16, 1995, a California superior court entered a "judgment of nullity" with respect to the parties' marriage. Wife did not seek to attack that determination based on lack of jurisdiction or other valid grounds for collateral attack. Hence, the full faith and credit clause requires that Colorado courts give that final California judgment full faith and credit. See Marworth, Inc. v. McGuire, supra. Therefore, the trial court erred when it failed to do so, and its decree of dissolution entered on October 3, 1997, nunc pro tunc to September 5, 1997, must be vacated.

However, the trial court nevertheless had jurisdiction to enter orders as to property and maintenance. See §XX-XX-XXX, C.R.S. 1998 (provisions of Uniform Dissolution of Marriage Act relating to rights of spouses, maintenance, and support and custody of children on dissolution of marriage are applicable to decrees of invalidity of marriage). And, even though the judgment of nullity reserved jurisdiction over child support and custody, that jurisdiction was later properly transferred to Colorado, as discussed below. See In re Marriage of Akins, 932 P.2d 863 (Colo.App.1997)(where only status of marriage was determined in another state, Colorado could still exercise jurisdiction over property, maintenance, and child support). Because husband had submitted to the trial court's jurisdiction, we perceive no error in the court's exercise of jurisdiction over these matters.

II.

Next, husband contends that the trial court was not the appropriate forum to resolve the attack on the validity of the adoption. We are not persuaded.

A.

First, we reject husband's argument that the matter should have been heard in the juvenile court because the Children's Code divested the district court of jurisdiction.

A claim concerning nullification of an adoption is in the nature of a custody proceeding. See In re Custody of K.R., 897 P.2d 896 (Colo.App.1995).

The jurisdictional section of the Children's Code, §19-1-104(4), C.R.S.1998, provides that "nothing in this section shall deprive the district court of jurisdiction ... when the question of legal custody is incidental to the determination of a cause in the district court," unless a petition involving that child has already been filed in the juvenile court, or the juvenile court has previously acquired jurisdiction. See In re Custody of C.C.R.S., 872 P.2d 1337 (Colo.App.1993), aff'd, 892 P.2d 246 (Colo.1995)(since no proceedings were ever commenced under the Children's Code for relinquishment or adoption of child, custody proceedings under the Marriage Dissolution Act were not preempted by the provisions of §19-1-104(4)).

Here, no petition was filed in the juvenile court under the Children's Code. Since issues regarding legal custody and adoption of the child were incidental to the determination of the issues presented in the dissolution proceeding, the district court could hear the issue.

B.

We also reject husband's argument that the trial court erred in accepting jurisdiction over the custody matter, rather than deferring to the California court's jurisdiction.

Because both state courts were making "custody determinations," the UCCJA is implicated here. See §XX-XX-XXX(2), C.R.S. 1998; In re Custody of K.R., supra. Custody was at issue in the Colorado petition for dissolution and the California petition for nullification of the adoption, and in its judgment of annulment of the marriage, the California court reserved jurisdiction to determine custody.

Jurisdiction in child custody cases is governed by §XX-XX-XXX(1), C.R.S.1998, which provides, inter alia, that jurisdiction is proper if Colorado is the child's home state, or if it is in the child's best interests that this state assume jurisdiction, either because the parties have a significant connection to this state, or because another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum. See Nistico v. District Court, 791 P.2d 1128 (Colo.1990); In re Marriage of Tonnessen, 937 P.2d 863 (Colo.App.1996).

Here, Colorado is properly the child's home state, as the trial court found, and where she maintained significant connections. She has lived with her mother and attended school here for years, and both her guardian ad litem and therapist are here. See §§XX-XX-XXX(5) & XX-XX-XXX(1)(a) & (b), C.R.S. 1998. Indeed, husband appears to have conceded as much at the 1995 hearing on temporary orders. Furthermore, the California courts in two districts both declined to exercise jurisdiction, which satisfies one of the alternative requirements in §XX-XX-XXX(1)(d), C.R.S.1998.

Accordingly,...