Marriage of Peper, In re

• Decision Date: 12 August 1976
• Docket Number: No. 75-165,75-165
• Citation: 554 P.2d 727,38 Colo. App. 177
• Parties: In re the MARRIAGE OF Carol D. PEPER, Appellee, and Jeanette M. Peper, Appellant. . III
• Court: Colorado Court of Appeals

Page 727

554 P.2d 727

38 Colo.App. 177

In re the MARRIAGE OF Carol D. PEPER, Appellee and Jeanette M. Peper, Appellant.

No. 75-165.

Colorado Court of Appeals, Div. III.

Aug. 12, 1976.

H. Earl Moyer, Lakewood, for appellee.

Berger & Rothstein, P.C., David Berger, Commerce City, for appellant.

STERNBERG, Judge.

The primary issues in this appeal relate to a court's power to enjoin parties before it from prosecuting civil actions in another state, and the court's use of its contempt powers to punish violation of such an injunction.In this dissolution of marriage proceeding, the court enjoined such actions and punished by abating child support and maintenance.We affirm in part and reverse in part.

The marriage of the parties was dissolved by a decree entered in Colorado on July 19, 1972.A property settlement agreement previously prepared in Pennsylvania and dated January 18, 1972, was incorporated in that decree.The agreement provided, Inter alia, that the husband pay $250 per month for support of the three minor children of the parties and $200 per month maintenance.It divided the parties' assets with substantial property going to the wife and the husband receiving a $50,000 promissory note payable to the parties at the rate of $932.89 per month.

The agreement specified that 'Husband, provided he shall have the financial ability, shall pay with respect to each such child . . . funds actually expended or required for tuition, bed and board of such child in . . . (a fully accredited college).'The agreement also stated that it 'shall be governed by the laws of the Commonwealth of Pennsylvania . . ..'

The husband married a second time, but that union too was dissolved.As an incident to that dissolution proceeding, the husband received his second wife's interest in a business located in Colorado, and the second wife received as her sole property the $50,000 note which the husband had acquired upon dissolution of his first marriage.

In November 1973, the first wife filed a motion to increase support payments and the husband countered with a motion to reduce such payments.Each party sought a modification or interpretation of the order to pay college expenses for the children, one child being then enrolled in college.Thereafter, the wife commenced proceedings in Pennsylvania to attach the husband's property located in that state, including specifically, the $50,000 note.The husband moved for protective orders, and on March 19, 1974, the court enjoined the wife from proceeding in the Pennsylvania action and ordered her to dismiss that suit by April 20, 1974.

After a hearing held on all motions on June 28, 1974, the court(1) denied both motions relating to child support, (2) refused to order the husband to pay college expenses, based on findings of his inability to pay, (3) found the wife in violation of the order to dismiss the Pennsylvania action, and (4) abated, but did not terminate, the husband's obligation to pay child support and maintenance until the wife purged herself of contempt.These orders constitute the basis of the wife's appeal.

With respect to the denial of the motion to increase child support, and the refusal of the court to order the husband to pay college expenses, the court made certain findings concerning each party's financial ability.Those findings were based on evidence of enhancement of the wife's financial condition resulting from an increase in the value of the property she had received at the termination of the marriage, together with evidence of lower earnings by the husband; hence they are binding on review.Dorsey v. Dorsey, 28 Colo.App. 63, 470 P.2d 581(1970).

Moreover, the court was correct in applying the plain meaning of the contractual provision relating to college expenses, quoted above.The husband's obligation was specifically predicated on his financial ability to pay such expenses.

The wife also argues that the clause in the separation agreement making Pennsylvania law controlling in some way affects the power of the Colorado court to decide whether the husband did have the financial ability to pay for the college expenses of his children.However, the court was presented with a factual, rather than a legal issue, and thus the provision relating to applicability of Pennsylvania law in no way affects the action of the court in this regard.In fact the agreement itself provides that it may be brought into evidence 'in any court of competent jurisdiction for the purposes of enforcing any of (its) terms.'This is precisely what was done here.

The wife next challenges the power of the trial court to enter its order directing her to dismiss the Pennsylvania civil action seeking to attach the $50,000 note.That challenge is without merit.

Colorado courts have the power to enjoin a party from proceeding in an action in another jurisdiction.Hayutin v. Hayutin, 152 Colo. 261, 381 P.2d 272(1963).This power may be exercised when another action interferes unduly or inequitably with the progress of the local litigation.Such an injunction merely restrains the parties and not the foreign court.Steelman v. All Continent Corp., 301 U.S. 278, 57 S.Ct. 705, 81 L.Ed. 1085(1937).

Here the wife was attempting to attach in...