Marriage of Noon, In re, 84CA0888
| Decision Date | 23 October 1986 |
| Docket Number | No. 84CA0888,84CA0888 |
| Citation | 735 P.2d 884 |
| Parties | In re the Marriage of Gene B. NOON, Appellant, and Eugenie A. Noon, Appellee, and Concerning House of Noon, Inc., and G.B.N., Inc., Appellants. . II |
| Court | Colorado Court of Appeals |
Downey & Murray, P.C., O. Russell Murray, Englewood, for appellants Gene B. Noon and House of Noon, Inc.
Pryor, Carney & Johnson, P.C., Sheldon H. Smith, Elaine Ashe Wohlner, Englewood, for appellant G.B.N., Inc.
Bowman, Wright & Gower, Arthur S. Bowman, Sr., Larry M. Snyder, Denver, for appellee.
Gene B. Noon (husband), House of Noon, Inc. (HON), and G.B.N., Inc. (GBN) appeal the judgment against them for the attorney fees of Eugenie A. Noon (wife). HON appeals the injunction prohibiting it from proceeding in a separate action it brought against wife. We reverse.
In April 1981, a decree of dissolution of husband and wife's marriage was entered by the trial court. The decree incorporated a settlement agreement which included provisions for the disposition of all of the stock in two family owned corporations, GBN and HON, and which was signed by husband and wife individually and as presidents, respectively, of GBN and HON.
Pursuant to the agreement, wife transferred to husband all of her interest in GBN, and husband became the sole stockholder in that company. HON redeemed some of wife's shares in HON, and GBN purchased the balance of her HON shares, together with the shares of the three children, with the result that HON became a wholly owned subsidiary of GBN. Wife had served as president of HON for more than four years prior to the execution of the separation agreement.
In May 1983, HON and GBN filed separate lawsuits in another judicial district, claiming that wife had defrauded HON while serving as its officer. Instead of directly defending against these actions, wife, claiming they constituted collateral attacks on the dissolution decree, moved the court in the dissolution action to enjoin HON and GBN from proceeding in their respective lawsuits.
The court agreed, holding that it had jurisdiction over the corporations because their presidents had signed the settlement agreement and because the corporations were alter egos of husband. It ordered the corporations to dismiss their lawsuits and also awarded wife attorney fees, holding that husband, GBN, and HON were jointly and severally liable for the fees. GBN voluntarily dismissed its action against wife, with prejudice, and so the injunction against it is not at issue here.
The primary issue on appeal is whether the trial court had personal jurisdiction over HON and GBN to enable it to issue the injunction against HON and to enter a judgment against HON and GBN for wife's attorney fees. We hold that it did not.
Wife contends that the trial court was correct in finding that the signatures of the presidents of HON and GBN on the settlement agreement constituted a general appearance in the dissolution action and thus gave the trial court jurisdiction. We do not agree.
Ordinarily, a defendant enters a general appearance in a case by seeking relief which acknowledges jurisdiction or by other conduct manifesting consent to jurisdiction. See Weaver Construction Co. v. District Court, 190 Colo. 227, 545 P.2d 1042 (1976); Stecker v. Snyder, 118 Colo. 153, 193 P.2d 881 (1948). "Two requirements must be met to render an act adequate to support the inference that it is an appearance: (1) knowledge of the pending proceeding; (2) an intention to appear." Deeb v. Berri, 118 Mich.App. 556, 325 N.W.2d 493 (1982). "An appearance is not to be inferred except as a result of acts from which an intent to do so may properly be inferred." Rhodes v. Rhodes, 3 Mich.App. 396, 142 N.W.2d 508 (1966).
Here, GBN and HON showed no intention to submit to jurisdiction; they made no motions, filed no pleadings, and sought no relief, nor was any sought from them at that stage in the dissolution litigation. We will not stretch participation in a settlement agreement into a general appearance. Rhodes v. Rhodes, supra. See Simpson v. Simpson, 151 Colo. 88, 376 P.2d 55 (1962).
Wife contends, in the alternative, that, even if there was no general appearance, nevertheless, the...
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