Lednum v. Lednum

• Decision Date: 18 March 1929
• Docket Number: 12048.
• Citation: 276 P. 674,85 Colo. 364
• Parties: LEDNUM v. LEDNUM.
• Court: Colorado Supreme Court

276 P. 674

85 Colo. 364

LEDNUM v. LEDNUM.

No. 12048.

Supreme Court of Colorado, En Banc.

March 18, 1929

Rehearing Denied April 22, 1929.

Error to District Court, City and County of Denver; H. A. Calvert Judge.

Action by Margaret C. Lednum for separate maintenance against Edmund T. Lednum. From a decree adjudging defendant guilty of contempt for failure to pay sums awarded plaintiff for separate maintenance, defendant brings error.

Affirmed.

F. A. Williams and Edwin H. Park, both of Denver for plaintiff in error.

Philip Hornbein, Golding Fairfield, and Theodore Epstein, all of Denver, for defendant in error.

BURKE J.

Plaintiff in error, hereinafter referred to as 'the husband,' was adjudged guilty of contempt for failure to pay defendant in error, hereinafter referred to as 'the wife,' certain sums awarded her for separate maintenance. He was thereupon ordered committed to jail for six months unless he should sooner purge himself by compliance. To review that judgment he prosecutes this writ.

The wife brought suit in the district court of Denver, Colo., for separate maintenance, charging nonsupport and desertion. The husband denied the charge, filed a cross-complaint, and prayed for divorce. The parties attended in person and by counsel. Judgment was for the wife on her complaint and against the husband on his cross-complaint. Five months after the date of the Colorado decree, and after having made payments thereunder, the husband, in a Montana court, sued the wife for divorce on the ground of desertion during the identical period the Colorado court had found against him and for her. Service there was by publication, the cause was heard ex parte, and decree entered for the plaintiff. Thereafter, having ceased his payments under the Colorado judgment, he was cited here for contempt. He answered by pleading the Montana decree. A demurrer to his answer was sustained, with the result above noted.

The assignments charge, in substance, the following errors: (1) The consideration of facts not appearing in the answer; (2) the order sustaining the demurrer; (3) the entry of judgment in violation of section 1, art. 4, of the Federal Constitution.

(1) The demurrer searched the record. The court was bound to notice the entire record in the cause in which the citation issued and particularly the judgment therein and the finding upon which it was based. If, for instance, the answer denied that judgment or finding, the plea would be bad.

(2) Of the many grounds of demurrer we need consider but one; i. e., want of facts. The wife depended upon the validity of the Colorade judgment, not the invalidity of that of Montana. Had the demurrer been overruled, her sole defense would have been the latter; hence it could not be overruled unless the Colorado court were powerless or unwilling to protect its own judgment. Unless its decree were vitiated by that of Montana, the demurrer was good.

(3) That the Montana decree is not binding upon us under said section 1, art. 4 (the full faith and credit clause), of the Federal Constitution, has been settled in this jurisdiction, and, while that authority stands, others need not be examined. Davis v. Davis, 70 Colo. 37, 197 P. 241. It is said that in the Davis Case the question of jurisdiction was raised as a question of fact, while the attempt here is to raise it as a question of law. The answer is that there there was no domestic judgment, while here the Colorado judgment is in itself an adjudication of no jurisdiction in Montana.

Nothing further is essential to the affirmance of this judgment, but we elect to notice the specific propositions advanced by plaintiff in error: (1) The demurrer admits all facts well pleaded; (2) the validity of the Montana judgment is a question of fact, and must be raised by plea to the jurisdiction; (3) it cannot be collaterally attacked for fraud; (4) a nonresident of Colorado (the wife) cannot invoke the jurisdiction of the Colorado courts for the purpose of questioning the jurisdiction of another state; (5) a decree of separate maintenance does not bar a decree of divorce; (6) a divorce is a bar to future alimony.

(1) In considering this demurrer, the court must, of course, treat as established all facts well pleaded. To determine whether certain facts in this answer are well pleaded, they must be read in the light of facts already adjudicated in the same cause. These adjudicated facts are read into the husband's answer. If other portions thereof are inconsistent therewith, those inconsistent portions must give way. This is true for two reasons: First, because a fact alleged is controlled by a fact adjudged; second, because a pleading is construed most strongly against the pleader. Here the husband's desertion of his wife...