In re the Marriage of Salby

126 P.3d 291, 2005 Colo. App. LEXIS 1616, 2005 WL 2456895
CourtColorado Court of Appeals
DecidedOctober 6, 2005
DocketNo. 03CA0806
StatusPublished
Cited by1,297 cases

This text of 126 P.3d 291 (In re the Marriage of Salby) 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 Salby, 126 P.3d 291, 2005 Colo. App. LEXIS 1616, 2005 WL 2456895 (Colo. Ct. App. 2005).

Opinion

ROTHENBERG, J.

In this dissolution of marriage action, Mur-ry L. Salby (father) appeals from the trial court’s orders regarding maintenance, child support, the allocation of parental responsibility, and the division of marital property. We dismiss the appeal in part, affirm the judgment in part and reverse in part, and remand with directions.

In September 2000, father and Shoshana (Eva) A. Salby (mother) entered into an “Agreement of Marital Separation.” A petition for dissolution of the marriage was filed in July 2001, and interim temporary orders were entered in September 2001. Temporary orders were entered in November 2001 under which the parties’ child was to reside primarily with mother, and father was ordered to pay family support of $2000 per month.

In August 2002, the court entered permanent orders regarding parenting time and the allocation of parental responsibility. It designated mother as the primary residential parent, awarded father parenting time, and directed that the parties share decision-making responsibility. The marriage was dissolved in November 2002.

In January-2003, mother moved for the forthwith entry of an order continuing family support, alleging that father had stopped paying support after the decree of dissolution entered. The trial court ordered that the temporary orders be continued until entry of written permanent orders and denied father’s later motion for reconsideration. In April 2003, the court entered permanent orders on the division of marital property and all other remaining issues. Father appeals the temporary and permanent orders entered by the court.

I.

As a threshold matter, we address mother’s contention that this court lacks jurisdiction (1) to review issues concerning parenting time and the allocation of parental responsibilities because father’s appeal was untimely as to the trial court’s permanent orders relating to these issues; and (2) to review the court’s temporary orders relating to child support and maintenance. We reject her first contention but agree with the second one.

A.

A final judgment ends the proceeding in which it is entered and leaves nothing further to be done regarding the rights of the parties. In re Marriage of Rappe, 650 P.2d 1352 (Colo.App.1982).

As relevant here, absent a final judgment, appeal is only permitted if the trial court certifies that there is no just reason for delay and that the judgment is final for the purpose of appeal. C.R.C.P. 54(b); In re Marriage of Baier, 39 Colo.App. 34, 561 P.2d 20 (1977)(upon entry of an order under C.R.C.P. 54(b), decree of dissolution of marriage may be appealed prior to entry of [295]*295permanent orders on issues of child custody, support, and division of property).

In this case, permanent orders regarding parenting time and the allocation of parental responsibility were entered in August 2002, and the decree of dissolution was entered in November 2002. Permanent orders regarding matters other than parenting time and the allocation of parental responsibility were not entered until April 2003. Because the permanent order entered in August 2002 regarding parenting issues did not resolve all of the issues presented in this proceeding, and was not certified as final pursuant to C.R.C.P. 54(b), father could not have appealed it at that time.

We thus conclude that father’s appeal of the permanent order regarding parenting issues was timely and that we have jurisdiction to review it.

B.

However, we conclude we lack jurisdiction to review the court’s temporary orders relating to child support and maintenance.

Temporary orders relating to support payments do not terminate automatically upon the entry of a decree dissolving the marriage. They may be continued until the entry of permanent orders relating to support. See In re Marriage of Price, 727 P.2d 1073 (Colo.1986)(where court determined child support subsequent to entry of decree of dissolution, temporary child support order was not terminated on date of dissolution). Thus, it was proper for the trial court to continue the temporary orders after entering the decree of dissolution.

Nevertheless, temporary orders terminate when permanent orders are entered, and thereafter they may not be appealed. In re Marriage of Jaeger, 883 P.2d 577 (Colo.App.1994).

Because the permanent orders relating to child support and maintenance were entered in April 2003, we lack jurisdiction to consider father’s appeal of those temporary orders. Thus, the appeal is dismissed, with respect to the temporary orders relating to child support and maintenance.

II.

Father contends the trial court erred or abused its discretion in the manner in which it ordered the marital property to be divided.

He first contends the Agreement of Marital Separation was a marital agreement rather than a separation agreement, and the trial court erred in refusing to enforce its provisions regarding the division of marital property. We disagree.

Generally, an agreement between spouses that is signed by both parties before the filing of an action for dissolution of the marriage or for legal separation is a marital agreement. Section 14-2-302(1), C.R.S.2004. Such an agreement is enforceable unless it was executed involuntarily or there was not a fair and reasonable disclosure of the property or financial obligations of the parties. Section 14-2-307(1), C.R.S.2004.

However, an agreement between spouses that is signed by both parties before the filing of an action for dissolution of the marriage or for legal separation, but in contemplation of dissolution or separation is a separation agreement. In re Marriage of Bisque, 31 P.3d 175 (Colo.App.2001); section 14-10-112(1), C.R.S.2004 (an agreement between spouses that is “attendant upon their separation or the dissolution of their marriage,” and intended “to promote the amicable settlement of disputes between the parties” is a separation agreement).

A separation agreement is enforceable unless the court, after considering the economic circumstances of the parties and other relevant circumstances, finds it unconscionable. Section 14-10-112(2), C.R.S.2004.

The determination of credibility and the weight, probative force, and sufficiency of the evidence, as well as the inferences and conclusions to be drawn therefrom, are matters within the sole discretion of the trial court. In re Marriage of Lewis, 66 P.3d 204 (Colo.App.2003). When the trial court’s order is supported by competent evidence, it will not [296]*296be disturbed on review. In re Marriage of Jones, 627 P.2d 248 (Colo.1981).

Here, the parties entered into an agreement titled “Agreement of Marital Separation” which was to “govern their separation under marriage, and, unless revoked ... the dissolution of that marriage.” The trial court found it was a separation agreement.

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Bluebook (online)
126 P.3d 291, 2005 Colo. App. LEXIS 1616, 2005 WL 2456895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-salby-coloctapp-2005.