Peercy v. Peercy
| Decision Date | 11 May 1964 |
| Docket Number | No. 20161,20161 |
| Citation | 392 P.2d 609,154 Colo. 575 |
| Parties | Norman L. PEERCY, Plaintiff in Error, v. Dixie Kay PEERCY, by her next friend, Louise E. Litsey, Defendant in Error. |
| Court | Colorado Supreme Court |
Wm. Atha Mason, Rifle, for plaintiff in error.
Groves, Dufford, Nelson & Spiecker, Grand Junction, for defendant in error.
In response to a citation to show cause why he should not be held in contempt of the trial court for failing to make support payments for Tremaine Kay Peercy as required by its order, Mr. Peercy filed his motion in which he sought to have the decree and order vacated insofar as it directed him to make such payments. As justification for his motion, Mr. Peercy alleged that he was not the father of the child, and advanced two reasons why such relief should be granted to him. His reasons were presented in the form of designated 'affirmative defenses.'
In his first defense he acknowledged that he entered into a written agreement (incorporated in the decree of divorce) concerning the custody, reasonable visitation rights, and support of 'the parties' minor child,' but stated that he entertained at all times reservations and doubts about his paternity of the child; that he presently has proof 'that he is not the father of said child'; that paternity was not placed in issue nor adjudicated in the divorce action.
He then invoked C.R.S. '53, 46-1-5, 1960 Perm.Cum.Supp., which invests the trial court with continuing jurisdiction, whether before or after entry of the decree of divorce, to make or revise orders concerning custody, care and support of children, as affording a statutory remedy in the premises by which he could be relieved of the order for child support.
In his second defense he alleged paternity in an unknown person; that, although entertaining suspicions respecting paternity of the child, he had no 'firm evidence' at the time by which he could disprove his paternity, and therefore entered into the agreement; that at the time Mrs. Peercy 'may have had some uncertainties respecting said issue'; that Mr. Peercy's 'nonpaternity' was confirmed by blood tests taken in May 1961 (four months after the citation issued); that a mutual mistake as to the paternity of the child existed at the time the agreement was executed and the decree entered.
Because of such alleged mutual mistake, Mr. Peercy would have had the trial court revise the decree, to bring it in accord with fact as to paternity and, therefore, to set aside the order for support payments for the child.
On the day of trial Mrs. Peercy orally moved in advance of the presentation of evidence as follows:
'At this time, I would move to strike all of the affirmative defenses as set forth by the defendant * * * on the basis that those defenses are based upon facts and incidents which are alleged to have occurred prior to the entry of the property settlement agreement, and prior to the entry of the decree of divorce, and that therefore all issues which were before the Court at that time are res adjudicata, and in addition, the defendant is estopped from now raising this as an issue by virtue of having entered into a property settlement agreement and having allowed a decree of divorce to be entered by default.'
Ruling on the motion to strike was deferred until all the evidence was received, after which the trial court made extensive findings of fact and conclusions of law, and ordered that the defenses 'be stricken for the following reasons:
'1) The question as to whether the child * * * is the issue of the marriage between the parties is res adjudicata.
'2) By his very conduct and actions, the defendant has renounced his right to bastardize the minor child involved, and is estopped from denying liability for making the support payments for the benefit of said minor child.'
The trial court thereupon adjudged Mr. Peercy to be in contempt in failing to comply with its order for support of the child. His motion for new trial was denied, and he seeks reversal of the judgment by writ of error.
C.R.S. '53, 46-1-5, 1960 Perm.Cum.Supp., under which jurisdiction is retained by the court to make revisions of its orders in divorce proceedings, does not provide for a retrial procedure; such is not its purpose. An application for modification of a divorce decree in pursuance of the statute 'is neither a rehearing of the original case nor a review of the equities.' Fischer v. Fischer, 320 Mich. 176, 30 N.W.2d 826. One may not, under the guise of seeking revision of a divorce decree, obtain the advantages of a new trial in the original suit. Hagen v. Hagen, 212 Minn. 488, 4 N.W.2d 100; see Harris v. Harris, 113 Colo. 41, 154 P.2d 617. Such rule applies to the incidental fact of paternity in a divorce proceeding. Arnold v. Arnold, 207 Okl. 352, 249 P.2d 734.
Thus Mr. Peercy's reliance on the statute is ill-placed; the statute does not sanction a trial of issues which could or should have been presented initially. The issue of paternity could have been raised, tried and resolved before the entry of the divorce decree. Instead, Mr. Peercy entered into an agreement in which he tacitly recognized the child as his progeny, undertook to make support payments, and stipulated that the agreement be incorporated in whatever decree the court might enter. Mr. Peercy did not appear in the case originally, but permitted a default to be entered, after which the trial court heard evidence, decreed a divorce, and made the agreement a part of the decree.
Authority for relief from 'a judgment, order, or proceeding' is conferred in an appropriate proceeding by Rule 60(b), R.C.P.Colo. To be entitled to have a judgment vacated or set aside, a disadvantaged party must bring himself within the terms and conditions of this rule. United States v. Borchers, 2 Cir., 163 F.2d 347; see Cortvriendt v....
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