Opinion
No. 79SA135
Decided July 23, 1979. Rehearing denied August 20, 1979.
District Court ruled that violation by one ex-spouse of the visitation provisions of a custody decree could not be raised as a defense in an action against the other ex-spouse to obtain support under the Uniform Reciprocal Enforcement of Support Act (URESA), sections 14-5-101, et seq., C.R.S. 1973, (1978 Supp.). Rule to show cause issued.
Rule Discharged
1. PARENT AND CHILD — Violation — Custody Decree — Relieve — Father — Obligation to Support — Colorado — Jurisdiction. In separate action under Uniform Reciprocal Enforcement of Support Act, sections 14-5-101, et seq., C.R.S. 1973 (1978 Supp.), to order father, a resident of Colorado, to pay child support, existence of a Minnesota decree finding that divorced mother's violation of a prior order prohibiting her from removing children from Minnesota relieved the children's father of his support obligations did not deprive Colorado district court of jurisdiction.
2. Duty to Support — URESA — Statute — Ex-husband — Presence in Colorado. Under choice of law rule applicable by statute to URESA proceedings, section 14-5-108, C.R.S. 1973, ex-husband's duty to support is that which is imposed by the state where he was present for the period during which support is sought, and that state is Colorado.
3. Duty to Support. Absent some compelling reason to the contrary, ex-husband's duty to support his children cannot be questioned.
4. Jurisdiction — URESA Proceeding — Appearance to Challenge — Support Orders — Proper. Where petitioner ex-husband appeared before Adams County district court — in proceeding initiated by state of Alaska under the Uniform Reciprocal Enforcement of Support Act — to challenge that court's jurisdiction which ordered him to pay child support in instant URESA proceeding, held, under these circumstances, he is clearly subject to Adams County district court's jurisdiction; thus, the court had jurisdiction to entertain the instant URESA action and to enter whatever support orders were proper.
5. JUDGMENT — Full Faith and Credit Clause — Colorado — Duty to Enforce — Decree — Final and Unmodifiable — Minnesota Decree — Modifiable. Full Faith and Credit Clause of the United States Constitution requires that the Colorado courts enforce those decrees of a sister state which are final and not modifiable; but since Minnesota decree upon which ex-husband relies to relieve him of his obligation to pay child support was modifiable under Minnesota law, the courts of this state are not required to enforce that decree.
6. PARENT AND CHILD — Child Support — Foreign Decree — Modifiable — Colorado — Need Not Enforce — But Could Enforce. Where foreign decree (Minnesota) pertaining to child support was modifiable, Colorado courts are not bound to enforce it; however, that does not mean that Colorado court could not enforce such decree.
7. Support Obligation — Suspended — Violation — Law of State — Obligor's Presence. Under Colorado statutory law, as embodied in section 14-5-108, C.R.S. 1973, the law which determines whether a spouse's support obligation is suspended or terminated by an ex-spouse's violation of visitation rights is the law of the state where the obligor was present for the period during which support is sought.
8. DIVORCE — Support Obligation — Independent — Violation — Custody Decree. A divorced husband's support obligation is independent of violations of a custody decree by his ex-spouse.
9. PARENT AND CHILD — Custody Decree — Minnesota — Violation — Ex-wife's Misconduct — No Defense — URESA Action — Child Support. Where ex-wife violated terms of Minnesota custody decree by removing children from Minnesota to Alaska, held, as such, her misconduct was not a defense to a URESA action brought against ex-husband, who was present in Colorado for the period during which child support is sought.
Original Proceedings
Taussig Flowers, P.C., W. Harold Flowers, Jr., Robert H. Ten Eyck, Jr., for petitioner.
Paul Q. Beacom, District Attorney, Seventeenth Judicial District, Steven Bernard, Deputy, Marc P. Mishkin, Deputy, for respondent.
We issued a rule to show cause to review a district court ruling that the violation by one ex-spouse of the visitation provisions of a custody decree could not be raised as a defense in an action against the other ex-spouse to obtain support under the Uniform Reciprocal Enforcement of Support Act (URESA), sections 14-5-101, et seq., C.R.S. 1973 (1978 Supp.). We determined in Clearwater County, Minnesota v. Petrash, announced contemporaneously with this opinion, that such a defense was unavailable in an action under URESA. Accordingly, we now discharge the rule to show cause.
I.
George J. Gruber, petitioner, and Louise C. Wallner, respondent, were divorced in Minnesota in 1972. Custody of their two children was awarded to respondent, and petitioner was ordered to pay $150.00 per month for the support of the children.
In March, 1974, the Minnesota court having jurisdiction over the parties and their children entered an order prohibiting respondent from removing the children from Duluth, Minnesota. Respondent moved to Alaska with the children, where she and the children still reside. In November, 1974, the Minnesota court found that respondent had removed the children from Duluth in violation of its earlier order. A decree was then issued which relieved petitioner of his obligation under the 1972 custody decree to pay child support, until the children were returned to Duluth. The November, 1974 decree was not appealed.
Thus, unlike the respondent in Clearwater County, Minnesota v. Petrash, supra, the petitioner in this case did initiate legal action to enforce compliance with the terms of the custody decree.
In March, 1976, the state of Alaska brought a proceeding under URESA, requesting that the Adams County district court initiate a support proceeding against petitioner to secure support for the parties' children. In defense, the petitioner tendered the November, 1974 Minnesota decree relieving him of his support obligations. He contended that by virtue of that decree, the Adams County district court was "without jurisdiction" to order him to pay support in this URESA action. The district court rejected petitioner's defense, and, in July 1976, ordered the petitioner to pay $150.00 per month support.
In October, 1976, petitioner appeared before the district court and obtained a modification of the July, 1976 support order. The amount of petitioner's obligation was reduced to $100.00 per month. Petitioner has not complied with that support order, and was cited for contempt. The contempt proceedings have been stayed pending this proceeding.
II.
[1] Petitioner asserts that, because of the November, 1974 Minnesota decree which relieved him of his obligation to pay child support, the Adams County district court was without jurisdiction to order him to pay support in this URESA proceeding. Petitioner is in error.
First, petitioner does not claim that the Alaska court which initiated this action was without jurisdiction to commence this URESA proceeding, or that it did so in an improper manner.
[2,3] Second, whatever the effect of the November, 1974 Minnesota decree, petitioner is an "obligor" under the terms of URESA, see section 14-5-103(7), C.R.S. 1973, upon whom a duty to support his children is "imposable by law." See, section 14-5-103(2), C.R.S. 1973. Under the choice of law rule applicable by statute to URESA proceedings, section 14-5-108, C.R.S. 1973, the petitioner's duty of support is that which is imposed by the "state where [petitioner] was present for the period during which support is sought." That state is Colorado. "Absent some compelling reason to the contrary," petitioner's duty to support his children cannot be questioned. County of Clearwater, Minnesota v. Petrash, supra.
[4] Third, petitioner appeared before the Adams County district court in this action, and he is clearly subject to that court's jurisdiction. Thus, the Adams County district court had jurisdiction to entertain the present URESA action and to enter whatever support orders were proper.
III.
The second question before us is whether the November, 1974 Minnesota decree relieving petitioner of his obligations to pay child support must be enforced by the Colorado courts as a bar to the enforcement of the support order entered by the Adams County district court.
The Full Faith and Credit Clause of the United States Constitution provides, in part, that:
"Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state."
See, United States Constitution, Art. IV. Sec. 1; 28 U.S.C.A. § 1737.
[5] In the present case, the Full Faith and Credit Clause requires that the November, 1974 Minnesota decree be enforced by the courts of this state to the extent that it is final and not modifiable. Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905 (1905). The decree upon which petitioner relies was modifiable under Minnesota law. See, Minnesota Statutes Annotated, section 518.18 (1969). Thus, the courts of this state are not required to enforce that decree.
[6] However, the fact that we are not bound to enforce the November, 1974 Minnesota decree, Sistare v. Sistare, supra, does not mean that we cannot enforce it. Worthley v. Worthley, 44 Cal.2d 465, 283 P.2d 19 (1955). We therefore look to Colorado's choice of law rules to determine whether Colorado or Minnesota law governs the issue of whether a spouse's support obligation is suspended or terminated by an ex-spouse's violation of visitation rights.
[7-9] Under Colorado statutory law, as embodied in section 14-5-108, C.R.S. 1973, the law which determines the question before us is the law of the "state where the obligor was present for the period during which support is sought." As noted above, that state is Colorado. Our choice of law rules therefore direct us to Colorado law. In County of Clearwater, Minnesota v. Petrash, supra, we determined that a husband's support obligation is independent of violations of a custody decree by his ex-spouse. Employing the same analysis, we hold that a parent's support obligation is not suspended by violations of visitation provisions contained in a custody decree.
Accordingly, the rule to show cause is discharged.
JUSTICE GROVES and JUSTICE ROVIRA dissent.
JUSTICE CARRIGAN does not participate.