In re the Marriage of Sabala

802 P.2d 1163, 14 Brief Times Rptr. 1318, 1990 Colo. App. LEXIS 304, 1990 WL 152251
CourtColorado Court of Appeals
DecidedOctober 11, 1990
DocketNo. 89CA0985
StatusPublished
Cited by2 cases

This text of 802 P.2d 1163 (In re the Marriage of Sabala) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Marriage of Sabala, 802 P.2d 1163, 14 Brief Times Rptr. 1318, 1990 Colo. App. LEXIS 304, 1990 WL 152251 (Colo. Ct. App. 1990).

Opinion

Opinion by

Judge RULAND.

Anita Louise Sabala, mother, appeals the order of the trial court denying her motion for wage assignment. We affirm in part, reverse in part, and remand for further proceedings.

In 1980, the marriage of the parties was dissolved in Colorado. In June 1982, the parties stipulated that child support would increase to $325 per month for the parties’ two minor children. Richard Albert Saba-la, father, failed to pay support, and consequently, mother instituted actions in California under the Revised Uniform Reciprocal Enforcement of Support Act (RURE-SA), § 14-5-101, et seq. (1987 Repl.Vol. 6B).

A California court, acting as the responding court, entered an order on February 9, 1987, determining that father was in arrears $7,429 in his child support obligation as of November 30, 1986. Later in 1987, an order was entered assigning father’s wages for payment of the monthly support together with the monthly amount ordered for arrearages.

In May 1988, mother filed in Colorado a verified entry of judgment pursuant to § 14-10-122(l)(c), C.R.S. (1990 Cum.Supp.), claiming arrearages in the amount of $18,-058.85 plus interest of $5,173.12, from May 1, 1982, through April 1,1988. In response [1165]*1165to an advance notice of activation of wage assignment, father objected. Among other things, he asserted that the California order of February 9, 1987, was res judicata as to the amount of arrearages and as to the amount to be withheld from his wages.

The trial court concluded that it was required to give full faith and credit to the California order and therefore denied mother’s request for activation of a wage assignment. The court also partially granted father’s request for attorney fees under § 14-14-107(9)(e), C.R.S. (1987 Repl.Vol. 6B).

I

First, mother asserts that the trial court erred in concluding that it must give full faith and credit to California’s reciprocal support order. We disagree.

A

RURESA provides a procedure to enforce the duties of support of a deserting spouse. See § 14-5-101, et seq., C.R.S. (1987 Repl.Vol. 6B). A responding court that has jurisdiction over a deserting spouse may enter an order for arrearages that have accrued under a “duty of support.” See Cal.Civ.Proc.Code, § 1682 (West 1982); § 14-5-103(2), C.R.S. (1987 Repl.Vol. 6B) and § 14-5-125, C.R.S. (1990 Cum.Supp.). A “duty of support” includes the duty to pay arrearages owing under an order of “any court” entered in connection with a dissolution proceeding. See § 14-5-103(2), C.R.S. (1987 Repl.Vol. 6B).

After the California court’s determination of arrearages and before mother instituted this action, the Colorado General Assembly added § 14-5-110(2), C.R.S. (1987 Repl.Vol. 6B) to our RURESA. This section provides that:

“Any arrearages that have become a support judgment, which is final by operation of law of this state, or of any other jurisdiction, shall be given full faith and credit for enforcement purposes.”

Mother contends that since she was trying to enforce the Colorado dissolution decree and not the California order, § 14-5-110(2) does not apply. We disagree.

If the language of the statute is plain and the meaning is clear, the intent of the General Assembly is thereby established and the statute must be enforced as written. In re Estate of David, 776 P.2d 813 (Colo.1989); Briggs v. Cornwell, 676 P.2d 1252 (Colo.App.1983). The plain meaning of § 14-5-110(2) requires that full faith and credit be given to a final order for arrearages entered by a responding court under RURESA. Therefore, the trial court properly concluded it was bound by California’s determination of arrearages as of November 30, 1986.

B

Mother points out that the remedies provided under RURESA “are in addition to and not in substitution for any other remedies.” Section 14-5-104, C.R.S. (1987 Repl.Vol. 6B); see Cal.Civ.Proc.Code § 1654 (1990 Cum.Supp.). Therefore, she argues, the California court when acting as a responding state under RURESA could not nullify or affect the parties’ rights and duties under prior orders for support entered in the Colorado dissolution proceeding unless the issue of modification of the prior order had been specifically raised, noticed, litigated, and resolved as required by In re Marriage of Enewold, 709 P.2d 1385 (Colo.App.1985). As this issue is postured here,, we find no merit in this contention.

The record reflects that the complaint to initiate the RURESA proceeding was verified by mother and that a determination of arrearages was specifically requested based upon the Colorado support order. Consistent with the complaint, the notice issued to father by the California court provides that arrearages are to be determined. Under these circumstances, the California order determining the amount of arrearages may not be properly characterized as a modification of the Colorado order and the requirements of In re Marriage of Enewold, supra, have been satisfied.

[1166]*1166II

The record of the RURESA proceedings in California does not include all of the pleadings. As mother argues, it appears that the claim for arrearages was pursued under the statutory equivalent of our § 14-5-125, C.R.S. (1990 Cum.Supp.), see Cal.Civ.Proc.Code § 1682 (West 1982), rather than under the alternative registration procedure described in Henry v. Knight, 746 P.2d 1375 (Colo.App.1987). California also has an alternative registration procedure under its RURESA. See Cal.Civ.Proc. Code §§ 1698.3 (West 1982) and 1699 (1990 Cum.Supp). For this reason, mother argues that we need not give full, faith and credit to California’s determination of ar-rearages because its alternative registration procedure was not followed. We disagree.

Even if we assume that the order of the California court was erroneous under the analysis of Henry v. Knight, supra, that does not render the order void and subject to collateral attack. Rather, mother’s right to relief from that order was extinguished when she failed to pursue a direct appeal of the California order. See McLeod v. Provident Mutual Life Insurance Co., 186 Colo. 234, 526 P.2d 1318 (1974). Therefore, to the extent that mother’s claim for arrear-ages involves the same time period and issue as that resolved by the California order, she is precluded by § 14-5-110(2) from relitigating the issue.

Ill

Mother contends that the trial court erred in declining to order a wage assignment to enforce payment of the claimed arrearage. We agree in part.

Mother sought arrearages in Colorado for the time period up through April 1, 1988. The California order accounted for arrearages only as of November 30, 1986. It did not purport to modify the Colorado support order. See Ross v. Thomas,

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802 P.2d 1163, 14 Brief Times Rptr. 1318, 1990 Colo. App. LEXIS 304, 1990 WL 152251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-sabala-coloctapp-1990.