Marriage of Mann, In re
| Decision Date | 06 December 1982 |
| Docket Number | No. 81SA410,81SA410 |
| Citation | 655 P.2d 814 |
| Parties | In re the MARRIAGE OF Karen Lea MANN, Petitioner-Appellee, and John Milton Mann, Respondent-Appellant. |
| Court | Colorado Supreme Court |
William Litvak, Denver, for petitioner-appellee.
John Milton Mann, respondent-appellant pro se.
The respondent in a dissolution of marriage action, John Milton Mann (husband), appeals the Jefferson County District Court order dividing marital property and establishing child visitation. We affirm the order of the district court.
On June 6, 1978, Karen Lea Mann (wife) petitioned for dissolution of marriage and custody of the two children, then ages nine and eleven, of the marriage. Temporary orders, entered in July 1978, directed the husband to assume the debts consolidated through a consumer credit counseling service; required the husband to pay $125 a month child support for each child; and instructed both parties to do everything necessary to keep the family residence from foreclosure. The husband later was ordered to make house payments of about $390 a month from January 1979 until permanent orders were entered in November 1979.
After the dissolution action was filed, the husband's employer transferred him to New Orleans, Louisiana. The husband's gross monthly income during the pendency of this action increased from $1100 (with housing, food, and transportation expenses paid by his employer) to $1900 a month. During the same time, the wife's gross income varied, reaching a maximum of $800 a month at the time the court entered final orders.
On August 10, 1979, the husband filed for bankruptcy in Louisiana. When the district court entered the decree of dissolution on November 29, 1979, it awarded one-half of the family residence to the wife and the other half to the bankruptcy trustee. In addition, the court ordered the husband to pay $125 a month child support for each child, the consumer debts and tax liabilities of the parties, child support arrearages, and the wife's attorney's fees of $2000. The district court also set two one-week visitations per year for the children and the husband as long as the husband resided out of state. The court noted that the visitation order would be subject to change if the husband moved back to Colorado.
The husband filed an amended new trial motion, asserting that the visitation order was unreasonable, and requesting reconsideration of the marital property division because he subsequently had dismissed his petition in bankruptcy. In addition, he requested assignment of the case to a different judge because he believed that the judge who entered the decree of dissolution was biased against him. The district court heard the new trial motion on September 16, 1980, and on October 14, 1980, entered a modified order. The order directed the husband to pay $4,500 in child support arrearages and $2,730 in house payment arrearages. Finding that the husband had no legitimate excuse for the failure to make those payments, the court entered a contempt order with a 60-day sentence to be stayed if the husband paid $100 a month toward the arrearages and $250 a month child support. The court entered a wage assignment of $350 a month until the arrearages were paid.
The district court also amended the property division order because the husband had withdrawn his bankruptcy petition. The court found that the parties' equity in the family residence was $34,000. It awarded $17,000 of that equity to the husband subject to his removal of the federal tax liens for failure to pay income taxes between 1975 and 1979. In addition, the husband was to pay from his $17,000 equity the debts which the court had ordered him to pay on November 29, 1979.
Finally, the court amended its visitation order. The husband received out-of-state visitation rights with his sons for one week during winter break and two weeks during summer break. The husband also could have daytime visits whenever he came to Colorado provided he gave the wife advance notice. The court retained jurisdiction over visitation and announced an intention to interview the children after the summer, 1981 visit. The husband appeals from the order of October 14, 1980.
The husband first challenges the district court's division of property under section 14-10-113, C.R.S. 1973 1 as an abuse of discretion because the court allegedly failed to consider the economic circumstances of the parties at the time of the decree and because it denied his motion to compel discovery. The record does not support the husband's contentions. The district court heard testimony that the debts which had been consolidated through a consumer credit counseling service were for family expenses incurred by the husband's use of some of his income for personal expenditures including the costs of annulling his adoption, contributions to the Adoption Liberation Movement, and substantial medical and therapy bills. He failed to pay either federal or state income taxes between 1975 and 1979. Evidence in the record showed that federal tax liens in the amount of $12,500 had been placed on the family residence. The husband's attorney argued that tax liens and other debts that the court ordered the husband to pay exceeded the husband's $17,000 equity in the family home by $4,000. In addition, the husband had incurred attorneys' fees of about $6,500 to pay the six different attorneys he hired between the time the petition for dissolution was filed and the new trial hearing. In the modified property division award entered after the husband withdrew his bankruptcy petition, the district court recognized that even though many of the joint debts of the parties were to be paid through the husband's equity in the house, the wife would remain liable for the unpaid joint debts of the parties.
The husband also contends that the district court abused its discretion in denying a portion of his August 1980 request for discovery. The district court required the wife to comply with the husband's request for recent financial information by filing a new financial affidavit and her 1979 W-2 tax form. However, the district court did not require the wife to file supplementary bank records and other detailed financial information because the district court had had all the necessary information at the date of the dissolution decree. In addition, the district court believed the discovery request oppressive in light of the small amount of property.
Division of property in a dissolution of marriage action is a matter within the sound discretion of the trial court, and an appellate court will alter division of property only if the trial court abuses its discretion. In re Marriage of Graham, 194 Colo. 429, 574 P.2d 75 (1978); Moss v. Moss, 190 Colo. 491, 549 P.2d 404 (1976); In re Marriage of Garcia, 638 P.2d 848 (Colo.App.1981). Similarly, discovery matters ordinarily are within the discretion of the trial court. Sanchez v. District Court, 624 P.2d 1314 (Colo.1981); Mayer v. District Court, 198 Colo. 199, 597 P.2d 577 (1979). Our review of the record indicates that the district court did not abuse its discretion in dividing marital property or in protecting the wife under C.R.C.P. 26(c) from some of the discovery requests filed by the husband.
The husband's second contention is that the visitation order entered by the court was not reasonable as required by section 14-10-129(1), C.R.S. 1973. 2 The record contains testimony from the wife that the children were tired when they returned from visits with their father and that the visits were emotionally draining. The husband did not testify about visitation. Again, the question of visitation rights is within the sound discretion of the district court, taking into account the best interests of the children. In re Marriage of McGee, 44 Colo.App. 330, 613 P.2d 348 (1980). There is nothing in the record to support the husband's contention that the district court ruling was unreasonable, particularly in light of the court's willingness to review the visitation order within a year of its entry.
Finally, the husband asserts that the district judge should have disqualified himself because of an appearance of bias and prejudice against the husband. The husband contends that the judge's knowledge of a complaint he had filed against the judge with the Judicial Qualifications Commission violated the Colorado Constitution which provides, "All papers filed with and proceedings before the commission on judicial qualifications ... shall be confidential...." Colo. Const. Art. VI, Sec. 23(3)(d). 3
On July 7, 1980, the husband filed a request for reassignment of his motion for a new trial to a different district court judge because he believed that the judge had been unfair in jailing him for alleged contempt, in hearing testimony when neither he nor his counsel was present, and in reading material which biased the judge against him.
The allegation that the district judge found the husband in contempt of court arose from his arrest for violating a temporary restraining order. At the bond hearing on May 7, 1980, the district judge asked the husband, "You have been arrested for violating a temporary restraining order, is that correct?" The husband responded, "I'm not going to answer since my...
To continue reading
Request your trial
-
American Water Development, Inc. v. City of Alamosa, s. 92SA141
...than the objectors. Generally, pretrial discovery rulings are within the sound discretion of the trial court. In re Marriage of Mann 655 P.2d 814, 816 (Colo.1982); Kerwin v. District Ct., 649 P.2d 1086, 1088 (Colo.1982); Cameron v. District Ct., 193 Colo. 286, 289, 565 P.2d 925, 928 (1977);......
-
Moody v. Corsentino
...955 (Colo.1984)), resolution of which will not be disturbed on appeal unless it constitutes an abuse of discretion. In re Marriage of Mann, 655 P.2d 814, 818 (Colo.1982). The determination of the legal sufficiency of a motion and affidavit seeking disqualification, however, is subject to an......
-
Williams v. District Court, Second Judicial Dist., City and County of Denver
...v. District Court, 632 P.2d 567, 569 (Colo.1981). See also Bond v. District Court, 682 P.2d 33, 40 (Colo.1984); In re Marriage of Mann, 655 P.2d 814, 816 (Colo.1982). Although the scope of discovery is very broad in Colorado, Williams argues that the trial court abused its discretion in ord......
-
NAH v. SLS, 99SC90.
...time and decision-making responsibilities. See, e.g., In re Marriage of Francis, 919 P.2d 776, 779 (Colo.1996); In re Marriage of Mann, 655 P.2d 814, 817 (Colo.1982). If the parties refuse to accept the judge's pretrial recommendation, the court may order genetic testing if it has not alrea......
-
Disqualification of Judges
...See, Fehr, supra, note 9. 11. C.R.S. 1973, § 13-1-122. See also, C.R.S. 1973, § 16-6-201(5). 12. In re the Marriage of Mann, 655 P.2d 814 (Colo. 1982). 13. In re the Marriage of Johnson, 40 Colo.App. 250, 576 P.2d 188 (1977). 14. Supra, note 12. 15. C.R.S. 1973, § 13-1-122 specifically appr......
-
Disciplinary Opinion
...1355, 1374 (Colo. 1993) (holding that a litigant's lawsuit against a judge is not sufficient to create a reasonable inference of bias). [7]655 P.2d 814, 818 (Colo. 1982) ("To allow a litigant to file a letter critical of a trial judge or to inform the judge of the filing of a complaint with......