Poor v. District Court In and For Arapahoe County
| Decision Date | 05 April 1976 |
| Docket Number | No. 27107,27107 |
| Citation | 549 P.2d 756,190 Colo. 433 |
| Parties | Donald Duane POOR, Petitioner, v. DISTRICT COURT IN AND FOR the COUNTY OF ARAPAHOE, State of Colorado, and the Honorable Richard D. Greene as District Judge, Respondents. |
| Court | Colorado Supreme Court |
Victor E. DeMouth, Lakewood, for petitioner.
Kuttler & Redman, P.C., Jeb McNew, Aurora, for respondents.
This is an original proceeding wherein we ordered the respondent district court to show cause why the relief prayed for by the petitioner should not be granted.
At issue is the propriety of the respondent district court's order denying the petitioner's motion for a new trial as not having been timely filed.
The action in the respondent court involved dissolution of marriage and permanent orders as to custody of children, their support, property division, and other related matters.
A response and briefs with exhibits have now been filed. Under the facts here, we hold that the respondent district court's denial of the petitioner's motion for a new trial was erroneous and therefore must be vacated. Accordingly, we make the rule absolute. On November 4, 1975, a trial was held before the respondent district court on the matter of the dissolution of the marriage and for a determination of permanent orders with respect to child custody, child support, maintenance, payment of family obligations, and property division.
At the conclusion of the November 4, 1975 trial, the respondent court directed the attorney for the wife to submit to the respondent court in writing within twenty days, the 'court's orders.' Previously, the respondent court made oral findings as to what would be the final orders pertaining to child custody, child support, maintenance of the wife, property division and other issues usually considered in a dissolution of marriage action. Also, the respondent court directed that the petitioner's attorney be furnished with a copy of the written orders.
The respondent district court's minutes show the following entry with reference to this case:
'D--13839 Poor and Poor (Donald Duane and
11--4--75G Carolyn Sue) Dissolution of marriage and permanent orders. Petitioner present with Atty. V. DeMouth: respondent present with Atty. J. McNew. Parties sworn. ORDER: Decree of dissolution of marriage shall enter: Atty. McNew shall submit written Order within 20 days.'
More than two months elapsed before a document entitled 'Permanent Orders' was prepared and signed by the respondent court.
When the attorney for the petitioner, by telephone inquiry of the respondent court on January 20, 1976, ascertained the time when this document was filed and signed by the respondent court, he immediately filed a motion for a new trial in which error was alleged in connection with several of the permanent orders pertaining to property division. Upon receipt of this motion for a new trial, the respondent court immediately denied it as not being timely filed. It is stated in the petition before us that when inquiry was made of the respondent court regarding the reason for denial of this motion, the attorney for the petitioner was informed by personnel of the respondent court that the judge was of the view that since this motion was not filed within ten days of November 4, 1975, it was not timely filed. C.R.C.P. 59(b) requires that a motion for a new trial be filed 'not later than ten days after the entry of the judgment.'
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