Proffitt v. Proffitt

477 P.2d 456, 173 Colo. 258, 1970 Colo. LEXIS 536

• Court: Supreme Court of Colorado
• Decided: December 7, 1970
• Docket: No. 24429
• Status: Published

Opinion

Mr. Justice Kelley

delivered the opinion of the Court.

This is an appeal from a judgment of divorce granted to the husband. The wife denied husband’s allegations of cruelty, and by cros's-complaint sought a decree for separate maintenance.

The sole ground for reversal is the contention that the trial court’s refusal to grant the wife’s motion for a separate evidentiary hearing to determine that an alleged fraud on the court resulted in a void decree of divorce.

The trial court found that there was no fraud. We agree and affirm.

The alleged fraud consisted of discrepancies in the husband’s signatures appearing on (1) an affidavit for service by publication, (2) answers to interrogatories and (3) an affidavit relating to husband’s financial condition. Documents (2) and (3) related to temporary orders. The husband was 82 years of age at the time. The same notary acknowledged all three signatures.

The husband testified. Wife’s counsel cross-examined. Wife made no effort to prove that any of the signatures were not genuine. To the extent that there was any contention that the contents of the documents were inaccurate, the court afforded the wife full latitude to cross-examine the defendant. Having given the wife an opportunity to establish the fraud in the divorce hearing, the court did not err in not holding a separate hearing on the question of the genuineness of the signatures on documents, the contents of which were not offered as evidence of any fact in issue between the parties.

The judgment is affirmed.

Mr. Justice Day not participating.