Simpson v. Simpson, 20258

• Decision Date: 13 November 1962
• Docket Number: No. 20258,20258
• Citation: 376 P.2d 55,151 Colo. 88
• Parties: Norbert E. SIMPSON, Plaintiff in Error, v. Darleen A. SIMPSON; Kalamath Investment Co., a corporation, and John C. Prisner, Defendants in Error.
• Court: Colorado Supreme Court

Page 55

376 P.2d 55

151 Colo. 88

Norbert E. SIMPSON, Plaintiff in Error, v. Darleen A. SIMPSON; Kalamath Investment Co., a corporation and John C. Prisner, Defendants in Error.

No. 20258.

Supreme Court of Colorado, In Department.

Nov. 13, 1962.

Rehearing Denied Nov. 19, 1962.

W. H. Erickson, Charles F. Brega, Denver, for plaintiff in error.

John J. Gaudio, Denver, for defendants in error.

MOORE, Justice.

Plaintiff in error, to whom we will refer as the husband, was the defendant named in an action for divorce brought by the defendant in error, Darleen A. Simpson, to whom we will refer as the wife. Also named as defendants in the divorce action were Kalamath Investment Co., The People's Bank, Kearney Investment Company, John C. Prisner, C. C. Propps, Mobile Homes, Inc., and Premier Motor Hotel.

The wife alleged in her complaint that the husband had been guilty of extreme and repeated acts of cruelty. She also alleged that the other defendants, above named, had in their possession certain moneys, assets, and interests in property belonging to the husband under various business and contractual relations between them and the husband. She further alleged that because of her marriage relationship she had an interest in all the assets in the hands of the defendants who were joined as parties to the divorce action. In addition to her prayer for divorce, alimony, etc. she sought the entry of an order 'immediately restraining' all of the business associates of the husband who were named as co-defendants, from delivering to the husband any assets in their possession belonging to him. As to the Kalamath Investment Co. and John C. Prisner she requested entry of an order requiring them 'within twenty-four (24) hours after receipt of this Restraining Order,' to deposit in the registry of the court all moneys in their possession belonging to the husband.

The complaint was filed March 6, 1962, and at the same time she filed seven separate instruments entitled 'Verified Motion for Restraining Order' seeking injunctive relief against each of the defendants other than the husband. These motions contained the allegation that the wife was fearful that if the husband obtained possession of assets belonging to him, which were in the hands of said defendants, such assets would be 'used solely to the advantage of the defendant' and would be 'dissipated and spent to the disadvantage of the plaintiff and the minor children of the parties hereto.'

The trial court issued separate restraining orders as to each of the defendants other than the husband, in which they were enjoined from delivering to the husband any property in their possession which belonged to him. With reference to Kalamath Investment Co. and John C. Prisner, the court directed:

'That the defendant, KALAMATH INVESTMENT COMPANY and/or JOHN C. PRISNER, be restrained from giving over to the defendant, NORBERT E. SIMPSON, also known as N. E. SIMPSON, any monies presently due and owing to NORBERT E. SIMPSON, also known as N. E. SIMPSON, and that within a period of twenty-four hours (24) from date of receipt of this Order said KALAMATH INVESTMENT COMPANY and/or JOHN C. PRISNER, pay into the registry of the clerk of the District Court in and for the City and County of Denver, State of Colorado, the amount of $25,000.00 to be held by said clerk pending further order of court.'

All of these orders were entered without notice of any kind to the husband or to any of the other defendants in the action, and were issued on the same day the complaint was filed. Six days following the filing of the complaint the husband appeared in the action and filed certain motions including a motion to dissolve the restraining orders hereinabove mentioned. When this last mentioned motion came on for hearing thirty days after it had been filed, a judge other than the one who had issued the ex parte orders was sitting, who declined to hear the matter and directed that a new setting be arranged for a date when the original judge would be available. Thereupon counsel for the husband took appropriate steps to present the matter to this court on writ of error as provided by Rule 111(a) R.C.P.Colo.

It is argued, inter alia, that the orders entered by the trial court should be held for naught for the following reasons:

'A. An ex parte temporary restraining order depriving an individual of the use and enjoyment of his property cannot be issued without a showing that such an order is imperative and just.

'1. By entering such an order without such a showing, the trial court abused its discretion.

'2. Such a showing was not made by plaintiff in the instant case in that plaintiff failed to allege facts showing danger, present or future, that defendant husband might in any transaction involving his property, render his property unavailable to her for satisfaction of any decree which might be obtained by her.'

Rule 65(b) and (c) R.C.P.Colo. relate to the issuance of restraining orders without notice to the person to be restrained, and adequate protections are afforded in the matter of a bond and prompt hearing on the question of whether the ex parte order should be continued. Subsection (h) of said Rule, however, provides that:

'This rule shall not apply to suits for divorce, alimony, separate maintenance or custody of infants. In such suits, the court may make prohibitive or mandatory orders, without notice or bond, as may be just.'

Admittedly under this rule a discretion rests with the trial court to enter a restraining order 'without notice or bond, as may be just.' The question presented by the record before us is whether it can reasonably be said that the orders which were entered here are 'just'.

The practice of dragging banking institutions and business associates of persons involved in divorce actions into such proceedings as parties thereto, is not to be encouraged. It is an unusual situation in which an order on one spouse to refrain from transferring property is inadequate to afford needed protection to the other who seeks to maintain the status quo pending a hearing on notice. Only under extraordinary circumstances should third persons, not involved in the marital difficulties of the parties to a divorce action, who are carrying on legitimate business transactions with one of the parties thereto, be restrained or enjoined from continuing business activities with such persons,...