Taylor v. Taylor

• Decision Date: 03 July 1961
• Docket Number: No. 19574,19574
• Citation: 147 Colo. 140,362 P.2d 1027
• Parties: Lacey O. TAYLOR, Plaintiff in Error, v. Nadine H. TAYLOR, Defendant in Error.
• Court: Colorado Supreme Court

Page 1027

362 P.2d 1027

147 Colo. 140

Lacey O. TAYLOR, Plaintiff in Error, v. Nadine H. TAYLOR, Defendant in Error.

No. 19574.

Supreme Court of Colorado, In Department.

July 3, 1961.

Victoria F. Gross, Denver, for plaintiff in error.

Fuller & Evans, Dwight A. Hamilton, Denver, for defendant in error.

McWILLIAMS, Justice.

We refer to the parties as they appeared in the trial court, where plaintiff in error was defendant, and defendant in error was plaintiff.

On February 13, 1958 plaintiff filed her complaint wherein she sought a decree of separate maintenance from her husband, and supplementary relief, including custody of the three minor children of the parties, alimony, support money, property division and attorney's fees.

On March 11, 1958 after notice had been served on defendant an ex parte temporary order was entered, providing, inter alia, for custody of the children in the plaintiff and for alimony and support money of $350 per month, beginning March 15 for a period of ninety days. The order further provided that 'after said period of 90 days, either party hereto may set this matter down for hearing on the question of further temporary alimony, support for minor children.'

On March 19, 1958 defendant filed a motion to vacate this temporary order. Hearing was had April 16, at which time the court made the following statement and entered the following order: '* * * we'll go into the full matter later and we'll temporarily abate the order of March 13 (sic) * * * the order is not being withdrawn; it's just being held in abeyance * * * the order that the court entered of $40 a week will stand and the order of March 13 will be held in abeyance until we have a full hearing. * * * It will be the temporary order of this Court that your client * * * pay $40 a week and keep up the house payments.'

On May 14, 1958 following a hearing participated in by both parties, an 'Order for Temporary Maintenance, Support for Minor Children, Temporary Custody, Temporary Attorney's Fees and Court Costs' was entered by the same judge who had issued the ex parte temporary order. The May 14 order provided, inter alia, effective May 19, 1958 for payment by defendant of $60 per week for temporary maintenance and support 'of the minor children' of the parties, plus designated other expenses, costs and attorney's fees.

In December, 1958 the claim of plaintiff was changed during trial from separate maintenance to divorce, and then proceeded as a non-contested action. The interlocutory decree provided for payment by the defendant each one-half month thereafter, starting December 15, of $90, apportioned $22.50 for alimony, $67.50 for 'support of parties' children', for other specified allowances and attorney's fees. The decree was entered by a judge other than the one who had entered the previous order, and contained no reference to any preceding ex parte or temporary orders. The interlocutory decree was in due time followed by final decree, which contained no changes or modifications.

The record clearly establishes that by reason of the failure of defendant to make all payments as provided in the temporary, interlocutory and final orders and decrees, there remained unpaid by defendant as of March 1, 1960 a total arrearage in the amount of $1,605.23. This amount takes into account the reduction of the basic sum of $350 per month to the basic sum of $40 per week for the period between April 16, 1958 and May 14, 1958, the period of so-called 'abatement'. On May 3, 1960, upon motion of plaintiff previously filed, the court entered judgment in favor of plaintiff and against defendant in the sum of $1,605.23, plus attorneys fees and costs, a total of $1,723.40.

The defendant is here contending that the judgment is erroneous and void on the following grounds, which we will consider and dispose of in order.

First, that no arrearage exists under the order of March 11, 1958, it having been 'abated' on defendant's motion to vacate, and hence the inclusion of the $250 arrearage under that order was error. Under the record before us we find no merit in such contention. It is clear from a careful scrutiny of the qualifying words of the April 16 order that it was not the purpose of the court by the, perhaps, inept use of the word 'abate' to do something which would in any event have been beyond the scope of his power, viz., to create a vacuum by setting aside the order of March 11 ab initio. Rather, the effect of the April 16 order was to suspend, from that date forward, the operation of the earlier order by the temporary modification then made. We have held repeatedly that each installment maturing under a decree or order which has not been modified prior to the installment date, becomes a judgment debt similar to any other judgment for money. Burke v. Burke, 127 Colo. 257, 255 P.2d 740; Ferkovich v. Ferkovich, 130 Colo. 228, 274 P.2d 602; Jenner v....