Marriage of Franks, In re

• Decision Date: 17 November 1975
• Docket Number: No. 26369,26369
• Parties: In re the MARRIAGE OF Rebecca Gertrude FRANKS, Petitioner-Appellee, and Maurice Rudolph Franks, Respondent-Appellant.
• Court: Colorado Supreme Court

Page 845

542 P.2d 845

189 Colo. 499

In re the MARRIAGE OF Rebecca Gertrude FRANKS, Petitioner-Appellee,

and

Maurice Rudolph Franks, Respondent-Appellant.

No. 26369.

Supreme Court of Colorado, En Banc.

Nov. 17, 1975.

Rehearing Denied Dec. 8, 1975.

Stay Denied Jan. 12, 1976. See 96 S.Ct. 766.

James E. Bicknell, Denver, for petitioner-appellee.

Maurice R. Franks, pro se.

LEE, Justice.

Appellant seeks to reverse a decree which dissolved his marriage to appellee.

The dissolution proceeding was commenced on April 19, 1973. Numerous procedural motions were filed. On February 15, 1974, appellant responded to the petition for dissolution of marriage, denying that the marriage between the parties was irretrievably broken. He asserted numerous defenses, including the absence of jurisdiction based upon the claim that, for a variety of reasons, the Uniform Dissolution of Marriage Act, section 14--10--101 Et seq., C.R.S.1973, was unconstitutional.

A contested evidentiary hearing on the merits of the petition was held on February 28, 1974, after which the trial court entered findings, conclusions, and a decree dissolving the marriage, disposing of the property, and awarding of attorney's fees.

I.

The parties were married in a civil ceremony on December 26, 1969, in Tennessee. Shortly before the marriage, they entered into an antenuptial contract. The contract provided, insofar as pertinent here, that the property of each of the parties would remain separate, including property of each acquired during the marriage. Paragraph 5 of the contract provided:

'In the event the intended marriage is unsuccessful, no award shall be made for alimony other than alimony Pendente lite, during the pendency of the suit, and then for no greater a period than the number of months during which the parties resided together in matrimony. No award shall be made of permanent alimony. No award shall be made of lump sum alimony.'

The contract was silent on the subject of attorney's fees. It also provided that it would remain in full effect under the laws of any state to which the parties might later remove.

Subsequent to their marriage, the parties moved to Custer County, Colorado, where appellant engaged in the private practice of law and appellee found employment in the local school system. They separated on April 12, 1973, and on April 19 appellee filed her petition for dissolution of marriage in the district court, claiming an irretrievable breakdown of the marriage. She simultaneously filed a motion supported by an affidavit for an ex parte restraining order, requesting that appellant be restrained from harassing her or communicating with her. This motion was granted.

Appellee then journeyed to Puerto Rico where she temporarily resided with her parents. Appellant thereupon filed an action in the United States District Court for the District of Puerto Rico, alleging a violation of his federal constitutional and civil rights in view of appellee's claim for a division of personal property and for temporary maintenance and support pending the outcome of the dissolution proceeding. Appellant subsequently filed a second federal action in the United States District Court for the District of Colorado, in which he made essentially the same federal constitutional and civil rights claims as in the Puerto Rico action. In Franks v. Wilson, 369 F.Supp. 304 (D.Colo.), the United States District Court abstained from ruling on appellant's claims until the state court had ruled on the validity and enforceability of the antenuptial contract under the Uniform Dissolution of Marriage Act.

The state court action then went forward and appellant expressly elected therein, under the doctrine of England v. Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440, to reserve the determination of his claims under the United States Constitution to the federal court.

On February 7, 1974, appellant's various motions for stays of proceedings, to dissolve the temporary restraining order, for a continuance, and certain motions for discovery and for attorney's fees, were all denied. Appellee withdrew her request for temporary alimony and maintenance. On March 28, the dissolution petiton was heard on the merits, and the court found the marriage was irretrievably broken. The court then set over to each party his or her separate property. It awarded a freezer which had been acquired during the marriage to appellee, and also one-half of the joint 1972 federal income tax refund check.

Appellant moved for a stay of the decree terminating the marriage, in order that he might file a motion for a new trial. The stay was forthwith denied, as was appellant's motion for leave to file a new trial motion. The court stated that there was no rule requiring a motion for new trial, that it was dispensing with such a motion, and that if a new trial motion were filed it would be denied. Also, the court denied appellant's motion for a stay of the marriage dissolution, pending an appeal in which he intended to challenge the findings of the court that the marriage was irretrievably broken. Appellant then commenced this appeal.

It is readily apparent from the record that the district court misapprehended the requirement that a motion for a new trial be filed under C.R.C.P. 59(f) and that technically the decree of court is not a final decree from which an appeal may be taken to this court.

Section 14--10--105, C.R.S.1973, provides that the rules of civil procedure shall govern all proceedings under the Uniform Dissolution of Marriage Act, except as otherwise specifically provided. There is no exception in the act which dispenses with the necessity of filing a motion for a new trial, or which permits the court in the exercise of its discretion to dispense with such a motion. The filing of a motion for a new trial, where required under the rule, as here, may not be dispensed with, and the court's denial of appellant's motion for leave to so file the new trial motion was an abuse of authority. In the circumstances of this case, however, we will not penalize the appellant, who sought to comply with the rule, by requiring that the cause be remanded for a hearing and determination on his motion for a new trial, but, rather, we will accept the appeal as though the court had determined his grounds for a new trial adversely to him.

We also believe it important preliminarily to note that the district court misconceived the meaning of section 14--10--120, C.R.S.1973, in denying appellant's motion for a stay of the decree dissolving the marriage. This section provides:

'Decree. (1) A decree of dissolution of marriage or of legal separation is final when entered, subject to the right of appeal. An appeal from the decree of dissolution that does not challenge the finding that the marriage is irretrievably broken does not delay the finality of that provision of the decree which dissolves the marriage beyond the time for appealing from that provision, so that either of the parties may remarry pending appeal.'

It is clear from the foregoing provision that when an appeal is taken from the finding that the marriage is 'irretrievably broken' the finality of the decree dissolving the marriage may be stayed upon an appropriate motion duly made. The denial of appellant's motion for a stay was arbitrary and unwarranted.

We disapprove the rulings of the trial court concerning the motion for new trial and the denial of the motion for a stay. We do not, however, consider that these erroneous rulings justify reversal.

II.

We consider first appellant's contention that the Colorado Uniform Dissolution of Marriage Act violates several provisions of the Colorado Constitution: Art. II, Sec. 11 (no impairment of contracts); Art. II, Sec. 25 (due process of law); Art. II, Sec. 26 (slavery prohibited); Art. II, Sec. 29 (no discrimination on account of sex). Appellant, having elected under the doctrine of England v. Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440, to reserve to the federal court the determination of his federal rights, we emphasize that we deal here with his allegations only insofar as they arise under our state constitution.

In 1971, the General Assembly enacted the Uniform Dissolution of Marriage Act, which abrogated the traditional fault criteria for divorce, and substituted the single ground of 'irretrievable' breakdown. In so doing, this state joined an ever-increasing number of others in adopting what have sometimes been referred to as 'nofault' divorce laws. ¹ The reasons underlying this change in philosophy are fairly clear. The pre-1971 state of the law has been summed up in the following manner:

'* * * Colorado * * * permits the parties to obtain divorces by consent, but subjects them to humiliation, hypocrisy, sometimes perjury, and needless hostility of having to testify to one of the prescribed grounds * * *.' Clark, Divorce Policy and Divorce Reform, 42 Colo.L.Rev. 403, 407 (1971).

To summarize briefly, the old law encouraged spouses whose relationship had deteriorated to perjure themselves in order to obtain divorces when neither party had actually committed acts enumerated by the statute as grounds for divorce. 'Cruelty' as a ground, C.R.S.1963, 46--1--1(1)(e), was in particular used to describe all manner of inter-spousal discord. See H. Clark, Domestic Relations, § 12.4. Furthermore, the fault-based system, involving the need for one spouse to 'prove' the other 'guilty' of one of a number of wrongs, induced a bitterness that only aggravated the trauma already present in the breakup of a family unit. These defects in the old divorce statute may well have contributed to undermining the public's respect for a legal system that relied on fictions to accomplish what the 1971 statute attempted to do in a more straightforward way. See Comment, No-Fault Divorce: A Proposal for Mississippi, 45 Miss.L.J. 179 (1974); note, Kentucky's New Dissolution of Marriage Law...