Opinion
No. 73-097
Decided December 18, 1973.
Trial court dismissed petition for dissolution of marriage on the ground that jurisdiction was not properly pled. Petitioner appealed.
Reversed
1. DISSOLUTION OF MARRIAGE — Statute — Not Require — Residency — Immediately Prior — Commencement of Action — Allegation — Sufficient. The dissolution of marriage statute does not require that the petition contain an allegation that the residency period includes the ninety days immediately prior to the commencement of the proceedings; thus, where petition contained the allegation that petitioner "has resided in the State of Colorado in excess of ninety days," that allegation satisfied the requirements imposed by the statute.
Appeal from the District Court of the County of Garfield, Honorable Gavin D. Litwiller, Judge.
Joseph E. Edwards, Jr., J. D. Muller, for petitioner-appellant.
Eugene L. Beville, for respondent-appellee.
Petitioner commenced this action by filing a petition for dissolution of marriage in the district court in and for Garfield County, Colorado, on September 29, 1972. Service of process was made on respondent in Garfield County, Colorado, on the same day. The petition contained the following allegation:
"The residence of the wife is Rifle, Garfield County, Colorado and she has resided in the state of Colorado in excess of 90 days and she is not pregnant."
Thereafter, respondent filed a motion to dismiss the petition based on the allegation that the court lacked jurisdiction over the subject matter because the statute requires that the petition allege that petitioner was a resident of Colorado for "ninety days next preceding the commencement of the proceeding." After hearing, the trial court dismissed the petition on the ground that jurisdiction was not properly pled. On appeal, petitioner contends that this ruling was error. We agree.
1971 Perm. Supp., C.R.S. 1963, 46-1-7(2)(b), provides that the petition for dissolution of marriage must contain "The residence of each party and the length of residence in this state."
Before a decree of dissolution of marriage can be entered, the court must find that one of the parties has been a resident of this state for "ninety days next preceding the commencement of the proceeding." 1971 Perm. Supp., C.R.S. 1963, 46-1-6(1)(b).
[1] The statute does not require that the petition contain an allegation that the residency period includes the 90 days immediately prior to the commencement of the proceeding. Thus, petitioner's failure to make her allegation in the words of the statute was not a fatal defect in the petition. Therefore, we conclude that petitioner's allegation satisfied the requirement imposed by 1971 Perm. Supp., C.R.S. 1963, 46-1-7(2)(b).
The judgment is reversed and the cause is remanded with directions to reinstate the petition.
JUDGE ENOCH and JUDGE PIERCE concur.