Moses v. Moses
| Decision Date | 05 February 1973 |
| Docket Number | No. C--209,C--209 |
| Citation | 505 P.2d 1302,180 Colo. 397 |
| Parties | Barbara Joyce MOSES, Petitioner, v. Robert Wayne MOSES, Respondent. |
| Court | Colorado Supreme Court |
Leland S. Huttner, P.C., Denver, for petitioner.
Johnson & Makris, P.C., Hans W. Johnson, Denver, for respondent.
This is a proceeding in certiorari to review a decision of the Colorado Court of Appeals which affirmed the entry of a summary judgment in the Denver district court. Moses v. Moses, 30 Colo.App. 173, 494 P.2d 133. We reverse.
The summary judgment granted by the trial court evolved from the following proceedings, which we set out with some particularity. Petitioner and respondent were divorced in August of 1960. The divorce decree ordered the payment of alimony until such time as petitioner might remarry. On July 6, 1970, respondent filed his motion to reduce alimony, based upon a change of circumstances. This motion was set down for hearing on February 8, 1971.
On October 30, 1970, interrogatories and a request for admission addressed to petitioner were filed and served upon petitioner and her former counsel of record. Petitioner was living in Toronto, Canada, at that time. Counsel for respondent, being uncertain as to whether petitioner was represented by an attorney, wrote her a letter enclosing a copy of the interrogatories and request for admission, advising that they should be answered within thirty days and that the motion to reduce alimony was to be heard on February 8, 1971. The letter suggested the controversy might be settled and it invited settlement discussions with her.
The interrogatories were not answered and the request for admission was neither admitted nor denied within the time as required by C.R.C.P. 33 and 36. However, no effort was made by respondent's counsel to compel discovery as authorized by C.R.C.P. 37.
Petitioner did not retain counsel to represent her until December 31, 1970, and her counsel took no steps under the rules to obtain additional time in which to respond to the interrogatories and the request for admission.
The critical interrogatories and request for admission related to whether petitioner had in fact remarried since her divorce from respondent. If such in fact had occurred, as a matter of law, respondent under the terms of the divorce decree would be entitled to an order terminating all future alimony.
On January 18, 1971, petitioner's answers to the interrogatories were filed with the court. The critical questions as asked, and answers given in response thereto, were:
Question: 'What is your marital status?'
Answer: 'Divorced.'
Question: 'What is the name and address of your present husband?
Answer: 'None.'
Question: 'What is the name of your preceding husband?'
Answer: 'Dr. Robert W. Moses
785 Fillmore Street
Denver, Colorado.'
These answers were given under oath administered by a notary public of the Province of Ontario, Canada.
On January 19, 1971, respondent's motion for summary judgment was filed, which requested a judgment terminating alimony payments. The motion was based upon the Implied admission resulting from petitioner's failure to respond to respondent's request for admission: 'That you have entered into a marriage subsequent to your divorce from Robert W. Moses.'
Thereafter, on January 26, 1971, petitioner filed her answer to the request for admission, which denied that she had remarried since her divorce from respondent. The denial was also under oath before the Ontario notary public.
Additionally, the record contains the affidavit of petitioner's counsel, filed with his answer to the motion for summary judgment, in which he avers that counsel for respondent was advised of the fact that petitioner had never remarried subsequent to her divorce from respondent.
Hearing was held on February 8, 1971, and the court granted respondent's motion for summary judgment. The court commented from the bench that he felt petitioner had been 'stalling' in not responding to the interrogatories or request for admission within the time limits provided by the rules. Thereafter, a written order was entered by the court. Pertinent findings of the order granting summary judgment were:
We hold the court erred in granting the summary judgment. As we view the record, it contained responses to discovery which, although technically not in compliance with the Rules of Civil Procedure in that they were not timely filed, demonstrated a disputed issue concerning the material fact of remarriage. In view of the doubt as to the existence of the fact of remarriage, the motion for summary judgment should have been resolved against the movant. A litigant is entitled to have disputed facts determined by trial, and it is only in the clearest of cases, where no doubt exists concerning the facts, that a summary judgment is warranted. McKinley Construction Co. v. Dozier, Colo., 487 P.2d 1335; McCormick v. Diamond Shamrock Corp., Colo., 487 P.2d 1333; Credit Co. v. Guaranty Bank, 143 Colo. 393, 353 P.2d 1098; ...
To continue reading
Request your trial
-
Dillingham v. Greeley Pub. Co., 82SC411
...of recovery); Varner v. District Court, 618 P.2d 1388 (Colo.1980) (alternative theories of recovery). See also Moses v. Moses, 180 Colo. 397, 505 P.2d 1302 (1973) (procedural rules as a whole should be interpreted liberally and technical errors not affecting the substantial rights of the pa......
-
Kaiser Foundation Health Plan of Colorado v. Sharp, 85SC339
...issue that must be resolved in a trial. Roderick v. City of Colorado Springs, 193 Colo. 104, 563 P.2d 3 (1977); Moses v. Moses, 180 Colo. 397, 505 P.2d 1302 (1973). All doubts regarding the evidence must be resolved against the moving party, Abrahamsen v. Mountain States Telephone and Teleg......
-
Meyer v. Haskett
...is only in the clearest of cases, where no doubt exists concerning the facts, that summary judgment is warranted. Moses v. Moses, 180 Colo. 397, 402, 505 P.2d 1302, 1304 (1973). In determining whether summary judgment is proper, the court must give the party opposing the motion the benefit ......
-
U.S. Disposal Systems, Inc. v. City of Northglenn
...plaintiffs clearly contested the validity of this factual premise. Summary judgment was, therefore, improper. See Moses v. Moses, 180 Colo. 397, 505 P.2d 1302 (1973). Moreover, there is no basis for showing that the less drastic alternative of mere police power regulation of the private tra......
-
COLORADO RULES OF CIVIL PROCEDURE
...Mt. Power Co., 174 Colo. 309, 486 P.2d 438 (1971), cert. denied, 405 U.S. 996, 92 S. Ct. 1245, 31 L. Ed. 2d 465 (1972); Moses v. Moses, 180 Colo. 397, 505 P.2d 1302 (1973). Amendments to pleadings should be granted in accordance with overriding purposes of rules of civil procedure — to secu......
-
Rule 37 FAILURE TO MAKE DISCLOSURE OR COOPERATE IN DISCOVERY: SANCTIONS.
...the basis of technical defects unless he has properly raised the defects for consideration by the court. Moses v. Moses, 180 Colo. 398, 505 P.2d 1302 (1973). But employees, particularly nonresidents, of corporation cannot be compelled to answer or produce private records. Corporations are "......
-
Rule 56 SUMMARY JUDGMENT AND RULINGS ON QUESTIONS OF LAW.
...it is only in the clearest of cases, where no doubt exists concerning the facts, that a summary judgment is warranted. Moses v. Moses, 180 Colo. 397, 505 P.2d 1302 (1973). It was error for trial court to grant summary judgment when a material question of fact existed with respect to whether......
-
RULE 1
...Mt. Power Co., 174 Colo. 309, 486 P.2d 438 (1971), cert. denied, 405 U.S. 996, 92 S. Ct. 1245, 31 L. Ed. 2d 465 (1972); Moses v. Moses, 180 Colo. 397, 505 P.2d 1302 (1973). Amendments to pleadings should be granted in accordance with overriding purposes of rules of civil procedure — to secu......