Petition — Barone v. Barnes

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| Supreme Court, U. S$,

FILED

MAR 11 1978

}

‘| MICHAEL RODAK, JR.. CLERK

IN THE

SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1977

No. y Or lies 1256

MICHAEL BARONE, Petitioner

SUSAN GRAHAM BARNES, JUDGE, et al.,

Respondents

verre

A ee

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MAURICE R. FRANKS

444 Keeler Parkway

Pueblo, Colorado 81001

Telephone (303) 948-4100

Counsel for Petitioner

INDEX

Page

OPINION BELOW . se sas acest a tadhiaeasacccersanaaen 2

JURISDICTION 2

QUESTIONS PRESENTED .............0.00000000000.. 2

STATUTORY PROVISIONS INVOLVED eae 4

STATEMENT OF THE CASE 4

REASONS FOR GRANTING THE WRIT ............ —

THE QUESTIONS ARE SUBSTANTIAL ... 23

CONCLUSION ............ FRAN en ho Ren oN 25

APPENDIX A — Opinion and Judgment of Court

of Appeals 27

APPENDIX B— Order Denying Rehearing in Court

Be I sects ccsgsrenessnis aeieeiins 35

APPENDIX C — Text of Colorado Uniform Dissolu-

tion of Marriage Act Ua aamie 37

INDEX — Continued

CITATIONS

CASES:

Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407,

1410, 16 L. Ed.2d 469 (1966) 2000000...

Associated General Contractors of Massachusetts,

Inc. v. Altshuler, 361 F.Supp. 1293 (D. Mass.

1973), aff'd, 409 F.2d 9 (1st Cir. 1973) cert.

denied, 416 U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d

I eo a eee

Atkinson v. Atkinson, 203 N.Y.S. 49, 207 App. Div.

660 (1924) aff'd 203 N.Y.S. 372, 121 Misc. 659

SG EEESRE Tiel sete sel NG. Sune Vea CNR PR ee en

Bailey v. Alabama, 219 U.S. 219, 240-241, 31 S.Ct.

146, 55 L.Ed. 191 (1911) _2000 oo...

Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7

L.Ed.2d 512 (1962)

Bouknight v. Epting, 11 S.C. 71 (1878)

Carole K. vy. Arnold K., 380 N.Y.S.2d 593 (1976)

Carter v. Stanton, 405 U.S. 699, 92 S.Ct. 1232, 31

L.Ed.2d 569 (1972)

Cavanaugh v. Valentine, 41 N.Y.S.2d 896, 181 Misc.

48 (1943)

Page

16, 17

. 19, 21

iii

INDEX — Continued

Clyatt v. United States, 197 U.S. 207, 215 (1905) 21, 22

Conway v. Dana, 318 A.2d 324, 326 (Pa. 1973) ...... 17

Dartmouth College v. Woodward, 4 Wheat 518, 4

L.Ed. 629 (1819) ar |e

England v. Louisiana State Board of Medical Ex-

aminers, 375 U.S. 411, 84 S.Ct. 461, 11

L.Ed.2d 440 (1964) ................. eaimedidaiies .. 6,12,

Erie v. Thompkins, 304 U.S. 64, 71-72, 58 S.Ct. 817,

8) a ee 16

Franks v. Wilson, 369 F.Supp. 304 (D. Colo. 1973) 7

Frontiero v. Richardson, 411 U.S. 677 (1973) ..... 17

Geisinger v. Voss, 352 F.Supp. 104 (E.D. Wis.

1972) ..... EET ES Pee ee eC ma.

In re Lewis, 114 F. 963 (C. C. Fla. 1902) ............... 19

In re Marriage of Barone, —_— P.2d —-— (1976) 5

In ve Marriage of Franks, 542 P.2d 845, (Colo.

ee pee TDS Ve _.. 6,18

Re ences a a 15

Irving Trust Co. v. Day, 314 U.S. 556, 62 S.Ct. 398,

ciation 11,12

INDEX — Continued

Johnson v. University of Pittsburgh, 359 F.Supp.

1002, 1008 (W.D. Pa. 1973)

Kane v. Kane, 154 Colo. 440, 391 P.2d 361 (1964).

Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38

L.Ed.2d 260 (1973)

Larson vy. Gallogly, 361 F.Supp. 305, 310-311, (D.

R.I. 1973) vacated and remanded with instrue-

tions to dismiss as moot, 95 S.Ct. 819, 42

L.Ed.2d 831 (1975)

Lawrence v. Miller, 2 N.Y. 245 (1849) 00.

McCay v. State of South Dakota, 366 F.Supp. 1244

(D. S.D. 1973)

McPheeters v. McPheeters, 132 Colo. 312, 287 P.2d

959 11955)

Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32

L.Ed.2d 705 11972)

Mon Chi Hueng Au vy. Lum, 360 F.Supp. 219 (D.

Haw. 1973)

Monroe vy. Pape, 365 U.S. 167, 81 S.Ct. 473, 5

L.Ed.2d 492 +1961)

Neal v. Neal, 570 P.2d 758 (Ariz. 1977)

Penn v. Eubanks, 360 F.Supp. 699, 703 (M.D. Ala.

1973)

INDEX — Continued

Peonage Cases, 123 F. 671 (D. Ala. 1903) ........... m 19

Peonage Cases, 132 F. 671 (M.D. Ala. 1903) ......... 21

Peonage Cases, 136 F. 707 (D. Ark. 1904). 000... 19

People v. Elliott, 525 P.2d 457 (Colo. 1974) _.... is 15

Pheasant v. Pheasant, [1972] Q.B. (Family Div.)

202, 206, 209, 1 All. E.R. 587, 589, 591, 592.. 14

Plessy v. Ferguson, 163 U.S. 537, 542, (1896) 21

Pollock v. Williams, 322 U.S. 4, 64 S.Ct. 792, 88

ooo since <serceaensexcarsnnonsescosees: 19

| Reed v. Reed, 404 U.S. 71 (1971) .........0......... . 17

Smith v. Goguen, 415 U.S. 556, 94 S.Ct. 1242, 39

SATA ane 14

Stanton v. Stanton, 421 U.S. 7 (1975) 0... ipia 17

State ex rel. Watts v. Watts, 350 N.Y.S.2d 285

(1973) ...... Ea 17

Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39

el ee 7,17

Stratton v. St. Louis S. W. Ry. Co., 282 U.S. 10... 7, 22

Taylor v. Georgia, 315 U.S. 25, 62 S.Ct. 415, 86

L.Ed. 615 (1942) _.......... re 20

INDEX — Continued

Taylor v. Louisiana, 419 U.S. 522 (1975) 0. 17

Taylor v. Taylor, 7 Colo. App. 549, 44 P. 675 (1896) 15

Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24

| Gee ree 7

Warren v. United States, 340 U.S. 523, 326, 71 S.Ct.

432, 434, 95 L.Ed. 504 (1951) 220 16

Wesson & Hunting v. Johnson, 66 N.C. 189 (1872) 10,11

Wood v. Strickland, 95 S.Ct. 992, 997 footnote 6

(1975) 23

Wymelenberg v. Syman, 328 F.Supp. 1353 (£E.D.

A NO) © ee ee ae ee 7

Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19

hee ee teeee? | 14

CONSTITUTIONAL AND STATUTORY

MATERIAL:

U.S. Constitution, Article 1,§ 10 0... 3,7

U.S. Constitution, Amend. V .. ... 3, 14

U.S. Constitution, Amend. XIV 3,14

17,18

U.S. Constitution, Amend. XIII nr ee ee 4, 20

28 U.S. Code § 1254 Peat Meas 2

vil

INDEX — Continued

| git Me EE |: | DEE En EEE nea

28 U.S. Code § 220) ................... pinbdacislsntnbcalanitaisiabtadraa

28 U.S. Code § 2202 ....................... cdlakdsmnaeninds

SO TE, Coad BE anne eniess nc sscseserensecessonceseneses

28 U.S. Code § 2283 ....... Lisahaaaapdainaasinibaenesbee

28 U.S. Code § 2284 ....... i cesdeeulaaaaaatananetuadaamanntmnaaee

Ge TB Gee 6 BI anneccnciisicniscnccccsnncescesnrencctsnvenewassees

OTHER AUTHORITIES:

Comment, Male Alimony in Light of the Sex Dis-

crimination Decisions of the Supreme Court,

6 Cumberland L. Rev. 590 (Winter 1976) ....

J. Johnston & C. Knapp, Sex Discrimination by Law.

A Study in Judicial Perspective, 46 N.Y.U. Law

NE ER, EE IID os cisassinptsienesnehnmmennstsisiiins

IN THE

SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1977

No.

MICHAEL BARONE, Petitioner

ee De See

SUSAN GRAHAM BARNES, JUDGE, et al.,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

| The petitioner, Michael Barone, respectfully prays

| that a writ of certiorari issue to review the judgment and

| opinion of the United States Court of Appeals for the

Tenth Circuit entered in this proceeding on 13 December

1977. Rehearing was denied by the said Court of Appeals

nn _— y=

on 18 January 1978. The mandate issued on 26 January

1978. Respondents, defendants in the district court and

appellees in the Court of Appeals, are: (1) Hon. Susan

Graham Barnes, judge of the District Court in and for

the City and County of Denver, State of Colorado; (2)

Hon. Richard D. Lamm, Governor of Colorado; (3) Hon.

J. D. MacFarlane, Attorney General of Colorado; and,

(4) Nicoletta Marie Barone, petitioner in the dissolution

of marriage action pending against Michael Barone in the

District Court in and for the City and County of Denver,

State of Colorado, and the recipient of the alimony awarded

to her by the said court.

OPINION BELOW

The judgment and opinion of the United States Court

of Appeals for the Tenth Circuit, not yet reported, appears

in the Appendix hereto.

JURISDICTION

The judgment and opinion of the Court of Appeals

was entered on 13 December 1977. A petition for rehear-

ing timely was filed on 22 December 1977. Rehearing was

denied by the Court of Appeals on 18 January 1978. This

Court’s jurisdiction is invoked under 28 U.S. Code § 1254.

QUESTIONS PRESENTED

The following questions are presented by the instant

petition:

1. Whether, in an action filed prior to 12 August

1976, a single-judge district court errs in failing to cer-

tify for hearing and determination by a district court of

three judges a suit seeking to restrain state officials, in-

cluding the state trial judge, from enforcement of a state

statute of state-wide application on the grounds that the

statute is unconstitutional on its face and as applied?

2. Whether, in an action filed prior to 12 August

1976, a single-judge district court even has jurisdiction to

dismiss such an action, since the case is one required by

Act of Congress to be heard by a district court composed

of three judges?

3. Whether it is error to brand as “insubstantial”

petitioner’s claim that the Colorado Uniform Dissolution

of Marriage Act impairs the obligation of marriages con-

tracted prior to its passage, in violation of Article I, § 10,

of the United States Constitution?

4. Whether it is error to brand as “insubstantial”

petitioner’s claim that the Colorado Uniform Dissolution

of Marriage Act works a deprivation of a spouse’s prop-

erty without due process of law by taking that spouse’s

property regardless of that spouse’s conduct, in violation

of the due process clause of the Fifth and Fourteenth

Amendments to the United States Constitution?

5. Whether it is error to brand as “insubstantial”,

while at the same time refusing to entertain evidence,

petitioner’s claim that the Colorado Uniform Dissolution

of Marriage Act, as applied by the courts of Colorado,

as a matter of state-wide application, is discriminatory

against members of the male sex in that the courts of

Colorado show an unwarrantable preference toward mem-

bers of the female sex in awarding permanent mainte-

nance and. support, in violation of the equal protection

clause of the Fourteenth Amendment to the United States

Constitution?

6. Whether it is error to brand as “insubstantial”

petitioner’s claim that the Colorado Uniform Dissolution

of Marriage Act authorizes the imposition of involuntary

servitude and peonage in violation of the Thirteenth

Amendment to the United States Constitution and in vio-

lation of 42 U.S. Code § 1994?

7. Whether it is error for the district court (be it

a single-judge district court or a three-judge district court)

to refuse to entertain evidence and then to dismiss peti-

tioner’s action, failing to restrain and enjoin the enforce-

ment, operation and execution of the Colorado Uniform

Dissolution of Marriage Act?

STATUTORY PROVISIONS INVOLVED

The Colorado Uniform Dissolution of Marriage Act,

Article 10 of Title 14 of the Colorado Revised Statutes, is

set forth in full in the Appendix hereto.

STATEMENT OF THE CASE

This is a civil rights suit under 42 U.S. Code §§ 1983

and 1994. Jurisdiction of the district court was founded

upon 28 U.S. Code §§ 1343/3), 2201, 2202, 2281, 2283

and 2284. The complaint and motion for three-judge court

were filed in the district court on 16 January 1976, prior

to enactment of Public Law 94-381. Petitioner sought a

declaratory judgment that the Colorado Uniform Dissolu-

tion of Marriage Act is unconstitutional, and asked that

a three-judge court be impaneled for issuance of a pre-

liminary and permanent injunction restraining the Hon-

orable Susan Graham Barnes, a state divorce judge, and

others, from proceeding with the divorce action against

en gee ee ee

petitioner in the state courts pending determination of

the federal constitutional issues in federal court. Peti-

tioner seeks review of the action of the district court re-

fusing to certify the case for three-judge treatment, dis-

missing his action, and refusing to entertain the same

either on a three-judge basis or a single-judge basis.

Petitioner herein, Michael Barone, is the respondent

in an action in the District Court in and for the City and

County of Denver, State of Colorado, brought under the

Colorado Uniform Dissolution of Marriage Act. The said

action was filed by Nicoletta Marie Barone, a defendant

and appellee in the district court and Court of Appeals,

and is pending before the Honorable Susan Graham Barnes,

Judge of the said court, also a party hereto.

Petitioner is under continuing orders to pay alimony

in the amount of $250.00 per month to his ex-wife, who

has a Master’s degree, lives alone (Mr. Barone has custody

of the two children) , and has testified that she is economi-

cally self-supporting! (Mrs. Barone contributes not one

cent to support her children.)

On 12 July 1976, Judge Barnes refused to recognize

petitioner’s England reservation of all federal issues for

determination in the federal courts. On 23 September 1976,

Judge Barnes refused to reduce or terminate petitioner’s

alimony despite a showing that petitioner’s income had

fallen from $81,957 in 1974 to $9,795 in 1975. On 1 Decem-

ber 1977, the Colorado Court of Appeals affirmed the said

action of Judge Barnes. In re Marriage of Barone, ——

P.2d —._ (1976).

In his federal complaint, petitioner asked for a three-

judge panel to grant declaratory and injunctive relief

against enforcement of the Colorado Uniform Dissolution

of Marriage Act on several grounds of alleged unconsti-

tutionality. The distinguished district court refused to

certify the case for three-judge treatment and summarily

dismissed petitioner’s suit without any evidentiary hear-

ing or oral argument. The Court of Appeals affirmed.

All underlying state issues were determined by the

Supreme Court of Colorado, prior to the filing of the

instant action, in the case of Jn re Marriage of Franks,

542 P.2d 845 (Colo. 1975), thus satisfying the exhaustion

requirement. In reliance upon England v. Louisiana State

Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461,

11 L.Ed.2d 440 (1964), petitioner did not litigate his fed-

eral issues in the state courts of Colorado, and it now is

too late to do so.

REASONS FOR GRANTING THE WRIT

The steel shackles and iron bars of bondage are every

bit as real to the male slaves of the twentieth century as

they were to their black counterparts of the nineteenth.

Colorado, unfortunately, has not yet emerged from the

dark ages into the egalitarian light of the twentieth cen-

tury. Compare the reasoning of Neal v. Neal, 570 P.2d

758 (Ariz. 1977) with Jn re Marriage of Franks, 542 P.2d

845 (Colo. 1975). It is not surprising that the Colorado

courts should resist Mr. Barone’s protestations against

paying continuing alimony to a lady who has a Master’s

Degree, lives alone while Mr. Barone has custody of the

two children, and has testified that she is economically

self-supporting. It is disappointing, however, that the fed-

eral district court below succeeded in its effort to “shirk

its solemn responsibility to decide federal constitutional

questions.” See Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct.

303, 38 L.Ed.2d 260 (1973).

ee Oe an te ee

ee ee ee

Mr. Barone urges four questions presented for review.

These will be discussed in order.

1 and 2. THE HONORABLE SINGLE - JUDGE

DISTRICT COURT ERRED IN FAILING TO CERTIFY

THE INSTANT CASE FOR HEARING BY A DISTRICT

COURT OF THREE JUDGES, AND WAS WITHOUT

JURISDICTION TO DISMISS THE ACTION.

The complaint was filed and a three-judge court was

requested in the instant case on 16 January 1976. The case

was one required to be heard and determined by a district

court of three judges. Geisinger v. Voss, 352 F.Supp. 104

(E.D. Wis. 1972); Wymelenberg v. Syman, 328 F.Supp.

1353 (E.D. Wis. 1971) ; McCay v. State of South Dakota,

366 F.Supp. 1244 (D. S.D. 1973); Franks v. Wilson, 369

F.Supp. 304 (D. Colo. 1973); Steffel v. Thompson, 415

U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) ; Turner v.

Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970).

Public Law 94-381 by its own terms does not apply

to any action commenced on or before 12 August 1976.

Accordingly, the district court should have certified the

instant case for three-judge treatment, ard erred in not

doing so.

Where a case is appropriate for three-judge treat-

ment, the single district judge is without jurisdiction to

dismiss the action. Stratton v. St. Louis S.W. Ry. Co., 282

U.S. 10.

3. IT IS ERROR TO BRAND AS “INSUBSTAN-

TIAL” A CLAIM THAT THE COLORADO UNIFORM

DISSOLUTION OF MARRIAGE ACT IMPAIRS THE

OBLIGATION OF MARRIAGES CONTRACTED PRIOR

TO ITS PASSAGE, IN VIOLATION OF ARTICLE I,

§ 10, OF THE UNITED STATES CONSTITUTION.

The Uniform Dissolution of Marriage Act is a law

impairing the obligation of marriages contracted prior

to its enactment, as was the instant marriage in the case

at bar. Even without any written antenuptial agreement,

marriage is a contract. The obligations of that contract,

whether written or unwritten, may not be impaired by

subsequent enactments of the legislature. Mere changes

in divorce laws usually are procedural (since they change

the remedy afforded for breach of the marriage contract:

it abolishes the concept of breach altogether, and substi-

tutes an entirely new understanding of the marriage rela-

tionship—one that Michael Barone never agreed to when

he married Nicoletta.

The classic case concerning impairment of the obliga-

tion of a contract is Dartmouth College v. Woodward, 4

Wheat 518, 4 L.Ed. 629 (1819), argued by Daniel Webster

and decided by the Supreme Court early in the history of

this nation. The decision of Mr. Chief Justice Marshall

and by Mr. Justice Story — the great Joseph Story — is

truly a landmark. Concerning no-fault divorces, Chief Jus-

tice John Marshall had this to say:

The provision of the constitution never has been under-

stood to embrace other contracts than those which re-

spect property or some object of value, and confer

rights which may be asserted in a court of justice

It never has been understood to restrict the general

right of the legislature to legislate on the subject of

divorces. Those acts enable some tribunal, not to im-

pair a marriage contract, but to liberate one of the

parties because it has been broken by the other. When

the state legislature shall pass an act annulling all

marriage contracts, or allowing either party to annul

it without the consent of the other, it will be time

POPPA, em ae

oe NET © paren

enough to inquire whether such an act be constitu-

tional.

Dartmouth College v. Woodward, 4 Wheat 518,

629, 4 L.Ed. 629 (1819).

In his separate ovinion, considered by many scholars

to be the finest jewel in his crown of legal writings, Mr.

Justice Story went into considerably greater detail on the

subject of no-fault divorces:

It is, in the first place, contended that it it not

a contract within the prohibitory: clause of the con-

stitution, because that clause was never intended to

apply to mere contracts of civil institutions, such as

the contract of marriage, or to grants of power to

state officers, or to contracts relative to their offices,

or to grants of trust to be exercised for purposes

merely public, where the grantees take no beneficial

interest... .

As to the case of the contract of marriage, which

the argument supposes not to be within the reach of

the prohibitory clause, because it is a matter of civil

institution, I profess not to feel the weight of the

reason assigned for the exception. ... A general law

regulating divorces from the contract of marriage,

like a law regulating remedies in other cases of

breaches of contracts, is not necessarily a law im-

pairing the obligation of such a contract. It may be

the only effectual mode of endorcing the obligations

of the contract on both sides. A law punishing a breach

of contract, by imposing a forfeiture of the rights ac-

quired under it, or dissolving it because the mutual

obligations were no longer observed, is in no correct

sense a law impairing the obligations of the contract.

Could a law, compelling a specific performance, by

giving a new remedy, be justly deemed an excess of

legislative power? Thus far the contract of marriage

has been considered with reference to general laws

regulating divorces upon breaches of that contract.

But if the argument means to assert that the legisla-

tive power to dissolve such a contract, without any

breach on either side, against the wishes of the par-

ties, and without any judicial inquiry to ascertain a

breach, I certainly am not prepared to admit such a

power, or that its exercise would not entrench upon

the prohibition of the constitution. If under the faith

of existing laws a contract of marriage be duly solem-

nized, or a marriage settlement be made (and mar-

riage is always in law a valuable consideration for

a contract), it is not easy to perceive why a dissolu-

tion of its obligations, without any default or assent

of the parties, may not as well fall within the probi-

bition as any other contract for a valuable considera-

tion. A man has just as good a right to his wife as

to the property acquired under a marriage contract.

He has a legal right to her society and her fortune;

and to devest such right without his default, and

against his will, would be as flagrant a violation of

the principles of justice as the confiscation of his

own estate. I leave this case, however, to be settled

when it shall arise.

Dartmouth College v. Woodward, 4 Wheat 518,

693-697, 4 L.Ed. 629, 673-674 11819).

And there are other cases so holding. In Lawrence

v. Miller, 2 N.Y. 245 (18491, New York’s highest court

held that a marriage contract is protected by the federal

contract clause against impairment of its obligations by

subsequent enactments of the legislature. In Wesson &

Hunting v. Johnson, 66 N.C. 189 (1872), the Supreme

Court of North Carolina held that: “Acts of the General

Assembly, restoring to married women, their common law

right of dower, are unconstitutional, so far as they apply,

to marriages contracted prior to their passage.” Ruled the

North Carolina court:

It impairs the obligation of a contract. Marriage

is a civil contract, and the rights growing out of it,

are entitled to the protection of the Constitution of

the United States.

Wesson & Hunting v. Johnson, 66 N.C. 189, 191

(1872).

In Bouknight v. Epting, 11 S.C. 71 (1878), the Su-

preme Court of South Carolina held that a marriage con-

tracted prior to the enactment of the married woman acts

remains outside such acts, since any other construction

would bring the acts into conflict with that provision of

the Constitution of the United States which forbids a state

from passing any law impairing the obligation of con-

tracts. Accordingly, property acquired by the wife in her

own name, despite passage of the act authorizing same and

removing the disabilities of coverture, was held neverthe-

less to be subject to the claims of the husband’s creditors.

In Atkinson v. Atkinson, 203 N.Y.S. 49, 207 App. Div.

660 (1924), aff'd 203 N.Y.S. 372, 121 Misc. 659 (1923),

the Appellate Division of the New York Supreme Court

again held that marriage is a “contract” the obligation

of which may not be impaired by a subsequent enactment

of the legislature. See also Cavanaugh v. Valentine, 41

N.Y.S.2d 896, 181 Misc. 48 (1943).

A federal question clearly is presented. In Irving

Trust Co. v. Day, 314 U.S. 556, 62 S.Ct. 398, 86 L.Ed.

452 (1942), the Supreme Court of the United States said:

When this Court is asked to invalidate a state

statute upon the grounds that it impairs the obliga-

tion of a [marriage] contract, the existence of the

contract and the nature and extent of its obligation

become federal questions for the purposes of deter-

mining whether they are within the scope and mean-

ing of the Federal Constitution, and for such purposes

finality cannot be accorded to the views of state court.

Irving Trust Co. v. Day, 314 U.S. 556, 561, 62

S.Ct. 398, 86 L.Ed. 452 (1942).

The Day case was litigated in the state courts without

an England reservation, and was appealed from the state’s

highest court to the Supreme Court of the United States

in the traditional manner. In the 1964 case of England v.

Louisiana State Board of Medical Examiners, 375 U.S.

411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964), the Supreme

Court approved the procedure that petitioner has elected

to follow in the instant case.

Accordingly, the courts below erred in branding as

“insubstantial” petitioner’s claim that Colorado’s “no-

fault” divorce law violated the contract clause, and that

this honorable court should so hold.

4. IT IS ERROR TO BRAND AS “INSUBSTAN-

TIAL” A CLAIM THAT THE COLORADO UNIFORM

DISSOLUTION OF MARRIAGE ACT WORKS A DE-

PRIVATION OF A SPOUSE’S PROPERTY WITH-

OUT DUE PROCESS OF LAW BY TAKING THAT

SPOUSE’S PROPERTY REGARDLESS OF THAT

SPOUSE’S CONDUCT, IN VIOLATION OF THE DUE

PROCESS CLAUSE OF THE FIFTH AND FOUR-

TEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION.

a nal a

Petitioner suggests that the Uniform Dissolution of

Marriage Act, both on its face and as applied, is uncon-

stitutional in that it works’ a continuing deprivation of

appellant’s property regardless of his conduct. At the time

Michael Barone married, in faith on existing laws, he

could not be divorced and subjected to permanent alimony

unless he misbehaved in certain specific ways enumerated

in the existing statutes. The effect of the no-fault enact-

ment is to give Mrs. Barone continuing eminent domain

over her former husband’s property, in violation of the

due process clauses.

“Trretrievable breakdown” is not, and cannot be, a

valid ground for dissolution of marriage. The Colorado

standards are unconstitutionally overbroad and imper-

missible vague in that they do not inform petitioner of the

situation required to justify dissolution of his marriage

or imposition of continuing alimony obligations.

Parliament in England has enacted a no-fault di-

vorce law. But the British version elaborately defines the

term “irretrievably broken down.” About the definitions

that appear in the English version (but which are singu-

larly absent in the Colorado version) Judge Ormrod of

the Queen’s Bench Division of the High Court of Justice

had this to say:

The question of irretrievable breakdown has not,

therefore, been left at large for the court to determine,

no doubt because it was realized that, except in the

clearest cases, this is not a justifiable issue. With-

out guide lines the court has no means of judging

what one person, let alone two, may decide to do in

the future in relation to their marriage if there is

any doubt about it....

Applying this test to the facts of the present

case I have no hesitation in holding that there is noth-

ing in respondent’s behaviour which could be regarded

as a breach on her part of any of the obligations of

the married state or as effectively contributing to the

break-up of the marriage. . . . Petition dismissed.

Pheasant v. Pheasant, [1972] Q.B. (Family

Div.) 202, 206, 209, 1 All. E.R. 587, 589, 591, 592.

Certainly the term “irretrievable breakdown” is

every bit as vague as the term “contemptuous treatment.”

Smith v. Goguen, 415 U.S. 556, 94 S.Ct. 1242, 39 L.Ed.2d

605 (1974). It has been held that: “Vague laws in any area

suffer a constitutional infirmity.” Ashton v. Kentucky,

384 U.S. 195, 86 S.Ct. 1407, 1410, 16 L.Ed.2d 469 (1966).

Anent the doctrine of void-foe-vagueness, see also Zwickler

v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 44 (1967).

Accordingly, the courts below erred in branding as

“insubstantial” petitioner’s claim that Colorado’s “no-

fault” divorce law violates the due process clauses of the

Fifth and Fourteenth Amendments.

5. It IS ERROR TO BRAND AS “INSUBSTAN-

TIAL”, WHILE AT THE SAME TIME REFUSING TO

ENTERTAIN EVIDENCE, A CLAIM THAT THE

COLORADO UNIFORM DISSOLUTION OF MAR-

RIAGE ACT, AS APPLIED BY THE COURTS OF

COLORADO, AS A MATTER OF STATEWIDE APPLI-

CATION, IS DISCRIMINATORY AGAINST MEMBERS

OF THE MALE SEX IN THAT THE COURTS OF

COLORADO SHOW AN UNWARRANTABLE PREF-

ERENCE TOWARD MEMBERS OF THE FEMALE

SEX IN AWARDING PERMANENT MAINTENANCE

AND SUPPORT, IN VIOLATION OF THE EQUAL

PROTECTION CLAUSE OF THE FOURTEENTH

AMENDMENT TO THE UNITED STATES CONSTI-

UTION.

Mrs. Barone has a Master’s degree, and has testified

that she is self-supporting. Mr. Barone has custody of the

two children, and Mrs. Barone is not contributing one cent

to their financial support. Yet Mr. Barone must pay main-

tenance to Mrs. Barone.

The honorable district court dismissed petitioner’s

complaint summarily, without giving petitioner an oppor-

tunity to prove that the courts of Colorado, as a matter of

statewide application and as a matter of state common

law, are quicker to force husbands to support their former

wives than to force wives to support their former hus-

bands. Indeed, a paternalistic, stereotyped presumption in

favor of the female litigant is mandated by decisional law

from the Supreme Court of Colorado. See, e.g., Kane v.

Kane, 154 Colo. 440, 391 P.2d 361 (1964), in which the

state’s highest court reaffirms the proposition that females

are to be given perference in obtaining custody of children

of tender years. See also McPheeters v. McPheeters, 132

Colo. 312, 287 P.2d 959 (1955), in which the Supreme

Court held that the husband has the duty to support the

wife, even though he is poor. See also Taylor v. Taylor, 7

Colo. App. 549, 44 P. 675 (1896), holding that a wife is

entitled to suit money since the male spouse has the burden

of putting the female spouse on equal footing in the litiga-

tion. Nor has the sexist standard changed since enactment

of the no-fault law. Jn re Marriage of Moore, 531 P.2d 995

(Colo. App. 1975); People v. Elliott, 525 P.2d 457 (Colo.

1974).

The above-cited Colorado cases are state “laws,”

“customs” and “usages” within the meaning of 42 U.S.

Code § 1983, denying appellant his federally protected

rights. Erie R. Co. v. Thompkins, 304 U.S. 64, 71-72, 58

S.Ct. 817, 819, 82 L.Ed. 1188 (1938). Accord, Warren v.

United States, 340 U.S. 523, 326, 71 S.Ct. 432, 434, 95

L.Ed. 504 (1951), holding that “The term law in our juris-

prudence usually includes the rules of court decisions as

well as legislative acts.”

In the court below, petitioner would have proven his

inability to obtain equal treatment under the state divorce

law as applied by showing evidence of clear discrimination.

At the evidentiary hearing, petitioner would have intro-

duced the State Court Administrator’s summary of do-

mestic relations terminations for 1972 (being the last year

for which such statistics were kept). That summary shows

that, during 1972, female litigants were awarded custody

of all children born of the marriage in 4358 cases, whereas

the hapless husband got the kids in only 251 cases. The

mere statistical disparity creates a presumption of sexual

discrimination. Thus, in Johnson v. University of Pitts-

burgh, 359 F.Supp. 1002, 1008, (W.D. Pa. 1973), the

United States District Court for the Western District of

Pennsylvania said:

We agree that the statistics and other evidence of

discrimination showing the imbalance of men and

women with tenure in the School of Medicine and the

Department of Biochemistry in particular make out

a prima facie case which imposes upon the defendant

the duty to go forward with rebutting evidence.

Johnson v. University of Pittsburgh, 359 F.Supp.

1002, 1008, (W.D. Pa. 1973).

Accord, Penn v. Eubanks, 360 F.Supp. 699, 703 (M.D.

Ala. 1973); Associated General Contractors of Massa-

chusetts, Inc. v. Altshuler, 361 F.Supp. 1293 (D. Mass.

1973), aff'd, 409 F.2d 9 (1st Cir. 1973), cert. denied, 416

U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974).

In further support of his position, petitioner would have

introduced testimony and other statistical evidence as to

the inability of a male to obtain equal treatment under the

present Colorado divorce law as applied. It is settled that

unconstitutionality as applied is sufficient to require the

empaneling of a three-judge court. Steffel v. Thompson,

415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) ; Gei-

singer v. Voss, 352 F.Supp. 104 (E.D. Wis. 1972).

At the very least, the question whether sexist stand-

ards in divorce violate the equal protection clause is suf-

ficiently justiciable to have required the district court to

certify the case for hearing by three judges. At the very

least, the matter should have been heard by a single-judge

district court and it was error to deny petitioner his day

in court to present evidence. Stanton v. Stanton, 421 U.S.

7 (1975); Taylor v. Louisiana, 419 U.S, 522 (1975) ; Reed

v. Reed, 404 U.S. 71 (1971); Frontiero v. Richardson, 411

U.S. 677 (1973); Comment, Male Alimony in Light of the

Sex Discrimination Decisions of the Supreme Court, 6

Cumberland L. Rev. 590 (‘Winter 1976). See also the en-

lightened decisions of several state courts applying the

Fourteenth Amendment to the domestic relations situation

as mandating equal treatment for males in divorce: Con-

way v. Dana, 318 A.2d 324, 326 | Pa. 1973), State ex rel.

Watts v. Watts, 350 N.Y.S.2d 285 (1973); Carole K. v.

Arnold K., 380 N.Y.S.2d 593 (1976), in which Judge Na-

nette Dembitz, observes that “sexual generalization in the

law of support is the quintessence of unconstitutionality.”

Accordingly, it is submitted that the courts below

erred in branding as “insubstantial” petitioner’s claim that

the Colorado Uniform Dissolution of Marriage Act, as

applied by the courts of Colorado, is discriminatory against

members of the male sex in violation of the equal protec-

tion clause of the Fourteenth Amendment to the United

States Constitution.

6. IT IS ERROR TO BRAND AS “INSUBSTAN-

TIAL” A CLAIM THAT THE COLORADO UNIFORM

DISSOLUTION OF MARRIAGE ACT AUTHORIZES

THE IMPOSITION OF INVOLUNTARY SERVITUDE

AND PEONAGE IN VIOLATION OF THE THIR-

TEENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND IN VIOLATION OF 42 USS.

CODE § 1994.

Even after a marriage has been dissolved, and even

though dissolved through the fault of the person seeking

maintenance, the Colorado statute permits the court to

command the innocent party to labor to the profit of the

guilty spouse. The command is issued by the courts of Colo-

rado not in the form of a mere money judgment, but rath-

er under coercion of imprisonment for noncompliance. The

steel shackels and iron bars of bondage are every bit as real

to the male slaves of the twentieth century as they were

to their Black counterparts of the nineteenth. The State of

Colorado has erected a vast statutory structure for the

purpose of imposing involuntary servitude upon persons

even beyond the duration of the marriage relationship.

Under Colorado's statutory scheme, even the guilty spouse

at fault is made master over the life and fortune of the

innocent spouse. This is doubly injust now that Colorado

purports to allow the spouse at fault to terminate the con-

jugal relationship unilaterally. Jn re Marriage of Franks,

542 P.2d 845 (Colo. 1975'!. The other spouse is left with

all the burdens and none of the benefits of the marriage con-

tract.

To start collecting alimony, all she ‘and it usually is

the “she’’ — this relates to the separate issue of sexual dis-

crimination, supra) need do is show a lack of sufficient

property to support herself.

To force a human being thus to labor to pay another’s

debts, when a viable marriage relationship no longer ex-

ists between them, and particularly when today’s marriage

relationship is terminable at the unilateral option of the

person seeking court appointment as taskmaster, consti-

tutes slavery and peonage. The only cases to the contrary

are from states where maintenance may not be awarded

without a showing of fault on the person being subjected

to liability. Such cases, therefore, are not in point.

It is no answer that petitioner voluntarily entered into

the contract of marriage, since 42 U.S. Code § 1994 pro-

hibits persons from binding themselves into indenture and

prohibits the state from incarcerating persons for quitting

work or using the threat of incarceration to hold unwilling

persons to labor. Peonaye Cases, 136 F. 707 (D. Ark.

1904); Pollock v. Williams, 322 U.S. 4, 64 S.Ct. 792, 88

L.Ed. 1095 (1944). Marriage is a contract. In Peonage

Cases, 123 F. 671 (D. Ala. 1903), it was held that any

contract giving another the right to exact compelled labor

in liquidation of some debt or obligation is invalid, and

treated as though made involuntarily, and affords the

creditor or master no protection.

The essence of peonage is compulsory service in pay-

ment of a debt, a “peon’” being one who is compelled to

work for his creditor until his debt is paid. Bailey v. Ala-

bama, 219 U.S. 219, 31 S.Ct. 146, 55 L.Ed. 191 (1911). A

“neon” is a “species of serf, compelled to work for his credi-

tor until his debts are paid.” Jn re Lewis, 114 F. 963 (C.C.

Fla. 1902). In divorce cases, the debt is never paid.

It is no answer that the peonage is authorized by state

law. Taylor v. Georgia, 315 U.S. 25, 62 S.Ct. 415, 86 L.Ed.

615 (1942). 42 U.S. Code § 1994 expressly provides:

The holding of any person to service or labor

under the system known as peonage is abolished and

forever prohibited in any Territory or State of the

United States; and all acts, laws, resolutions, orders,

regulations, or usages of any Territory or State, which

have heretofore established, maintained, or enforced,

or by virtue of which any attempt shall hereafter be

made to establish, maintain, or enforce, directly or

indirectly, the voluntary or involuntary service or

labor of any persons as peons, in liquidation of any

debt or obligation, or otherwise, are declared null and

void.

42 U.S. Code § 1994.

Additionally, the Thirteenth Amendment mandates

that:

Neither slavery nor involuntary servitude, except

as punishment for crime, whereof the party shall have

been duly convicted, shall exist within the United

States, or any place subject to their jurisdiction.

U.S. Constitution, Amend. XIII.

If courts exist to end injustices, then the time is now

for this honorable Court to hold that maintenance, at most,

may be the object of no more than an ordinary money judg-

ment; and to abolish maintenance altogether where the

marriage relationship has been terminated by the person

seeking to profit from his or her own breach of that con-

tract without any showing of fault on the part of the other

party. The Arizona Supreme Court has been progressive

enough to realize the injustices perpetrated upon both sexes

by the stereotyped notion of alimony in the no-fault situa-

tion. Neal v. Neal, 570 P.2d 758 (Ariz. 1977). Unfortun-

ately, not all states have been so courageous. However,

there are important federal issues involved.

Involuntary servitude, whether imposed upon Blacks,

upon males, or even without discrimination as to color or

sex, cannot survive constitutional scrutiny. See Plessy v.

Ferguson, 163 U.S. 537, 542 (1896); Clyatt v. United

States, 197 U.S. 207, 215 (1905) ; Bailey v. Alabama, 219

U.S. 219, 240-241, 31 S.Ct. 146, 55 L.Ed. 191 (1911). In

Bailey, the Supreme Court said:

While the immediate concern was with African slav-

ery, the Amendment was not limited to that. It was

a charter of universal civil freedom for all persons,

of whatever race, color or estate, under the flag.

The words involuntary servitude have a “larger

meaning than slavery.” ... The plain intention was to

abolish slavery of whatever name and form and all

its badges and incidents; to render impossible any

state of bondage; to make labor free, by prohibiting

that control by which the personal service of one man

is disposed of or coerced for another’s benefit which

is the essence of involuntary servitude.

Bailey v. Alabama, 219 U.S. 219, 240-241, 31

S.Ct. 146, 55 L.Ed. 191 (1911).

The mutual obligation of support (and the obliga-

tion of support must always be mutual) existing between

parent and child is an exception to this rule. Peonage Cases,

132 F. 671, 681, (M.D. Ala. 1903) ; Clyatt v. United States,

197 U.S. 207, 215 1905). But the cases make no correspond-

ing exception for the relationship between a spouse and a

former spouse. To treat children as helpless is logical; to

treat women as helpless is insulting to womanhood.

Accordingly, it is submitted that the courts below

erred in branding as “insubstantial” petitioner’s proposi-

tion that the Colorado Uniform Dissolution of Marriage

Act violates the constitutional and statutory prohibitions

against involuntary servitude and peonage.

7. IT IS ERROR FOR THE DISTRICT COURT

(BE IT A SINGLE-JUDGE DISTRICT OR A THREE-

JUDGE DISTRICT COURT) TO REFUSE TO ENTER-

TAIN EVIDENCE AND THEN TO DISMISS PETI-

TIONER’S ACTION, FAILING TO RESTRAIN AND

ENJOIN THE ENFORCEMENT, OPERATION AND

EXECUTION OF THE COLORADO UNIFORM DISSO-

LUTION OF MARRIAGE ACT.

Petitioner submits that the district court was without

jurisdiction to dismiss the action. Stratton vy. St. Louis

S.W. Ry. Co., 282 U.S. 10. An injunction should have is-

sued. England v. Louisiana State Board of Medical Ex-

aminers, 375 U.S. 411, 84S.Ct. 461, 11 L.Ed.2d 440 (1964) ;

Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d

705 (1972); Zwicker v. Koota, 389 U.S. 31, 88 S.Ct. 391,

19 L.Ed.2d 444 (1967); Bailey vy. Patterson, 369 U.S. 31,

82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Kusper v. Pontikes,

414 USS. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973) ; Carter

v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569

(1972); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5

L.Ed.2d 492 (1961).

It should be noted that the honorable Judge Barnes

does not enoy judicial immunity from such an injunction.

PF 6 erties anne Own . a

Wood v. Strickland, 95 S.Ct. 992, 997 footnote 6 (1975) ;

Larsen v. Gallogly, 361 F.Supp. 305, 310-311 (D. R.1.

1973), vacated and remanded with instructions to dismiss

as moot, 95 S.Ct. 819, 42 L.Ed.2d 831 (1975); Mon Chi

Hueng Au v. Lum, 360 F.Supp. 219 (D. Haw. 1973) ;

Geisinger v. Voss, 352 F.Supp. 104 (E.D. Wis. 1972).

Accordingly, it is submitted that the honorable district

court erred in failing to restrain and enjoin the enforce-

ment, operation and execution of the Colorado Uniform

Dissolution of Marriage Act and in dismissing the action.

THE QUESTIONS ARE SUBSTANTIAL

President Ford was right when he said: ‘Women’s lib-

eration is truly the liberation of all people.” Changing con-

cepts of woman’s role in society, and of the obligations (or

lack of obligations) within marriage is redefined by the

Colorado legislature, make post-divorce alimony sadly an-

achronistic in these enligh.ened times. Women no longer

desire to be stereotyped as witless, helpless creatures un-

able to fend for themselves. Alimony is a holdover from

earlier days when the entire rationale of divorce and mar-

riage was different — predicated on postulates that,

perhaps unfortunately, no longer obtain.

Today, alimony for a self-sufficient woman is unjust.

An indolent woman no longer should be rewarded for her

otiosity at the expense and to the punishment of her former

husband.

In J. Johnston & C. Knapp, Sex Discrimination by

Law: A Study in Judicial Perspective, 46 N.Y.U. Law

Review 675, 747 (1971), it is said:

Another aspect of the judicial role is the re-

sponsibility to be ahead of other men. Judges are not

entitled to the luxury of shielding themselves behind

public opinion or community attitudes, however

strongly held those may be. The judiciary thus cannot

shift responsibility to the legislatures, the press,

women’s liberation activists or anyone else. A judge

whose opinions on important questions of public policy

reflect nothing more than his private estimate of pub-

lic majority opinion is engaging in journalism, not

jurisprudence.

J. Johnston & C. Knapp, Sex Discrimination by

Law: A Study in Judicial Perspective, 46 N.Y.U. Law

Review 675, 747 (1971) (emphasis in original).

The Colorado state courts, and unfortunately the

Colorado federal courts too, have declined the invitation to

bring the application of the state’s divorce laws out from

the dark ages into the light of the twentieth century. The

question now presented this honorable Court is whether

concepts of equality and justice are mere empty platitudes

or meaningful principles. Michael Barone has confidence

that this distinguished tribunal courageously will breathe

fire, meaning and life into those concepts by ending male

slavery to the profit of female indolence. Mr. Barone has

faith that this honorable Court will not hestitate to require

Mrs. Barone to exercise her newly-gained rights to equal

employment opportunity to the end that she no longer needs

be dependent upon her former husband.

= ~seegee eee a —~ 04 ~

CONCLUSION

Michael Barone so prays: that a writ of certiorari

should issue to review the judgment and opinion of the

Tenth Circuit.

Respectfully submitted,

MAURICE R. FRANKS

444 Keeler Parkway

Pueblo, Colorado 81001

Telephone (303) 948-4100

Counsel for Petitioner

APPENDIX A

NOT FOR ROUTINE PUBLICATION

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL BARONE,

Plaintiff-Appellant,

v. . No. 76-1748

HON. SUSAN GRAHAM BARNES,

HON. RICHARD D. LAMM, HON.

J. D. MacFARLANE, NICOLETTA |

MARIE BARONE,

Defendants-A ppellants.

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF COLORADO

(D.C. No. 76-M-58)

Submitted: November 15, 1977

Maurice R. Franks, Pueblo, Colorado, for Appellant.

Mary J. Mullarkey, First Assistant Attorney General, (J.

D. MacFarlane, Attorney General, Jean E. Dubofsky,

Deputy Attorney General, and Edward G. Donovan,

Solicitor General, on the brief), Denver, Colorado, for

Appellees.

Before SETH, HOLLOWAY and BARRETT, Circuit

Judges.

BARRETT, Circuit Judge.

Plaintiff and appellant Michael Barone brought

this action in federal district court challenging the consti-

tutionality of pending state court proceedings for the dis-

solution of his marriage. Barone sought a declaratory judg-

ment that the Colorado Uniform Dissolution of Marriage

Act, 1973 C.R.S. §$14-10-101, et. seq., is unconstitutional.

He also sought a permanent injunction restraining the

state court from proceeding with the dissolution action.

Barone requested a three-judge court pursuant to 28

U.S.C.A. §2281.'

Defendants and appellees are the state court judge

who presided at the dissolution proceedings, the governor

of Colorado, the attorney general of Colorado and Barone’s

former wife. All defendants moved for dismissal of the

complaint. The district court found that none of Barone’s

contentions was sufficient to raise a substantial federal

question. The court accordingly ruled that it was not neces-

sary to convene a three-judge court. The court then granted

defendants’ motions to dismiss for failure to state a claim.

Barone was the respondent in a Colorado state court

action brought under the Colorado Uniform Dissolution

' 28 U.S.C.A. $2281, now repealed, stated:

An interloctory or permanent injunction restraining

the enforcement, operation or execution of any State statute

by restraining the action of anv officer of such State in the

enforcement or execution of such statute or of an order

made by an administrative board or commission acting

under State statutes, shall not be granted by any district

court or judge thereof upon the ground of the unconstitu-

tionality of such statute unless the application thereof is

heard and determined by a district court of three judges

under section 2284 of this title.

28 U.S.C.A. $2284 describes the composition and procedure

of a three-judge court.

of Marriage Act, supra, by his then wife, appellee Nico-

letta Marie Barone. The Act provides in pertinent part

that “irretrievable breakdown of the marriage” is the only

ground for dissolution (C.R.S. §$14-10-102, 14-10-106),

and that an award of maintenance shall be without regard

to maritz misconduct (C.R.S. §14-10-114 (2) ). The Colo-

rado court dissolved Barone’s marri>ge and ordered him

to make monthly payments to his former wife.

Barone asserts that the Colorado Act:

1. Impairs the obligations of his marriage con-

tract in violation of Article I, Section 10 of the United

States Constitution;

2. Works a deprivation of a spouse’s property

without due process of law, in violation of the Fifth

and Fourteenth Amendments;

3. Discriminates against males in violation of

the Equal Protection Clause of the Fourteenth Amend-

ment; and

4. Authorizes the imposition of involuntary

servitude in violation of the Thirteenth Amendment.

Barone does not have standing to raise the Equal Pro-

tection argument. His other contentions are without merit.

Marriage is contractual in that “the consent of the

parties is necessary to create the relation.” Randall v. Krei-

ger, 90 U.S. 137, 147 (1874). But marriage is not a con-

tract within the meaning of Article I, Section 10 of the

United States Constitution. Maynard vy. Hill, 125 U.S. 190

(1888). As the Supreme Court observed in Maynard v.

Hill, supra, quoting the Supreme Court of Maine:

(When a couple are married) they have not so much

entered into a contract as into a new relation, the

rights, duties, and obligations of which rest not upon

their agreement, but upon the general law of the State,

statutory or common, which defines and prescribes

those rights, duties and obligations. They are of law,

not of contract. It was of contract that the relation

should be established, but, being established, the power

of the parties as to its extent or duration is at an end.

Their rights under it are determined by the will of the

sovereign, as evidenced by law... . It is not, then a

contract within the meaning of the clause of the Con-

stitution which prohibits the impairing of the obliga-

tion of contracts. It is, rather, a social relation, like

that of parent and child, the obligations of which

arise not from the consent of concurring minds, but are

the creation of the law itself...

125 U.S., at 211.

The Colorado Act, therefore, does not violate Article I, Sec-

tion 10 of the United States Constitution.

Barone’s argument that he was denied due process

must also be rejected. Before the Act was passed in 1971,

Barone asserts, only those spouses who had misbehaved

could be divorced and ordered to make support payments.

Now, under the new Act, even a faultless spouse may have

to pay the former mate. Barone complains that he married

“in faith” upon the former law. Perhaps he did. The Act,

however, did not apply to past events, but only those to

come. Such a one was Barone’s divorce. Nothing prevents

a legislature from declaring that, henceforth, the condi-

tions of liability are changed. Barone’s expectancy of what

the marriage statutes in Colorado would be is no more an

interest protected by the law than are the hopes of a weal-

thy testator that Congress will not increase federal estate

taxes the following year.

The term “irreconciliable breakdown” is not an un-

constitutionally vague ground for dissolution, as Barone

contends.” If the term can reasonably be interpreted as

meaning other than “‘on the rocks for good,” Barone has not

suggested what that interpretation would be. The Colorado

Supreme Court in In Re Marriage of Franks, Colo.

——-, 542 P.2d 845 (1975), cert. denied, 423 U.S. 1043, 96

S.Ct. 766 (1976), said:

Where the objects of the marital relationship are de-

stroyed to such an extent that it seems improbable

that the couple will again resume their relationship of

husband and wife, the marriage is irretrievably

broken. This is, of course, a determination to be made

under the statute by the trial judge on the basis of

all the facts and circumstances, and the factors under-

lying the determination made will necessarily vary

in each case depending upon the mutual tolerance or

lack of tolerance of the spouse.

542 P.2d, at 851.

The Florida Supreme Court resorted to Webster’s Third

International Dictionary (1966) in the case of Ryan v.

* The allegedly vague statute does not in itself take property.

It simply recites the ground for dissolution. C.R.S. $14-10-

102. The statute which authorizes support payments is

C.R.S. §14-10-114, and Barone does not allege that statute

to be vague. We consider Barone’s contention because there

can be no support payments without a dissolution. We do

not find Colorado’s ground for divorce to be vague. but even

if we did, we would be loath to intrude in a domain that has

traditionally been the concern of the separate States. See

Scherrer v. Scherrer, 334 U.S. 343 (1948). (Frankfurter,

J., dissenting.)

Ryan, 277 So. 2d 266 11973), and found the word “irre-

trievably” to be clearly defined. The Florida court rejected,

as we do, a challenge to a “no-fault” divorce statute on

grounds of vagueness.

In support of his equal protection argument, Barone

contends that he is prepared to prove that the Colorado

courts apply the Uniform Dissolution of Marriage Act in

a discriminatory manner. That is not enough. With few

exceptions, a statute may be challenged only by those it

has injured. United States v. Raines, 362 U.S. 17 (1960).

Barone has not alleged that the Colorado state court treated

him more harshly than it would a woman with like educa-

tion, earnings and health whose former spouse had the

education, earnings and health of Nicoletta Marie Barone.

The once instance where Barone darts from his refuge of

conclusory charges of discrimination against males is to

cite the State Court Administrator’s summary of domestic

relations terminations for 1972. That summary shows

that, during 1972, female litigants were awarded custody

of all children born of the marriage in 4358 cases, whereas

male litigants were awarded custody in only 251 cases. In-

asmuch as Barone was awarded custody of both his chil-

dren, the statistical disparity he discusses does nothing to

enhance his standing to challenge the Act. Barone cites

several Colorado cases which allegedly enforce “a paternal-

istic, stereotyped presumption in favor of the female liti-

gant.” None of the decisions require the state court to

discriminate against Barone in applying the Act. As we

view it, even could the statistics and case law be read as

implying injury to Barone, which they cannot, such alle-

gations of injury must be pleaded in the complaint. These

“allegations” are set forth only in Barone’s brief on appeal.

The district court properly relied on its earlier decision in

Harrington v. Shannon, D. Colo. 75-M-738, in finding the

conclusory allegations in Barone’s complaint to be insuffi-

cient to state a claim upon which relief can be granted.

Barone also argues that the Act authorizes the imposi-

tion of involuntary servitude in violation of the Thirteenth

Amendment. The Act, he contends, allows a court to coerce

support payments from a faultless former spouse under

penalty of imprisonment. See C.R.S. §14-10-118. We do not

think Barone has been cast into slavery or involuntary

servitude as those terms are used in the Thirteenth Amend-

ment. In Clyatt v. United States, 197 U.S. 207 (1905),

Bailey v. Alabama, 219 U.S. 219 (1911), United States v.

Reynolds, 235 U.S. 133 (1914), Butler v. Perry, 240 U.S.

328 (1915), and the Selective Draft Law Cases, 245 US.

366 (1918), all dealing with the issue of involuntary servi-

tude, we find nothing that would prevent Colorado from

ordering Barone to make support payments or be sent to

jail. It is coerced labor that the Thirteenth Amendment

proscribes, and not all coerced labor at that. Persons may be

put to work at established state activities, such as road

construction (Butler v. Perry, supra) and warmaking

(Selective Draft Law Cases, supra), or to honor duties

which society considers exceptional, such as the service of

a sailor, and obligations of a child to its parents (Clyatt v.

United States, supra). Barone is not being forced to labor

at the point of a gun. However, even should some forced

labor be imposed upon Barone following his failure to make

the support payments as ordered, there would be room for

argument that his obligations to his former wife are of

the exceptional nature of those mentioned in Clyatt. The

Colorado Supreme Court observed in the case of In Re

Marriage of Franks, supra:

Where two parties have undertaken the obligations

implicit in the marriage relationship, it becomes the

duty of the courts upon the dissolution of that rela-

— Sn

tionship to ensure that neither is forced to suffer

unduly as a consequence of its termination. One spouse

may have foregone earning potential in performing the

domestic duties involved in maintaining the marital

domicile, to the end that the other spouse might de-

vote his full potential to the earning of income for the

family. It would be inequitable upon dissolution to

saddle the former with the burden of his reduced

earning potential and allow the latter spouse to con-

tinue in an advantageous position which was reached

through a joint effort. Thus, the dissolution of mar-

riage statute, in an effort to eliminte the inequities

resulting from the termination of the relationship,

provides for attorney’s fees, as well as maintenance

and child support, when the relative status of the

parties involved indicates the need of such.

542 P.2d, at 851, 852.

The involuntary servitude argument is without merit.

The district court did not err in dismissing the com-

plaint without having convened a three-judge court. 28

U.S.C.A. $2281 did not require a single district judge to

convene a three-judge court if the constitutional claims

were “insubstantial.” Swift & Co. v. Wickham, 382 U.S.

111, 115 (1965). We agree with the district court finding

that none of Barone’s contentions present a substantial

federal question. Each of Barone’s contentions has been

heretofore raised by other litigants before other courts,

and each has been rejected. See Blackman v. Byrne, D.

Colo. 75-F-1269; Franks v. McFarlane, D. Colo. C-5266;

Greer v. Wolvington, D. Colo. 75-W-745; Harrington v.

Shannon, supra; In Re Marriage of Franks, supra.

WE AFFIRM.

APPENDIX B

NOVEMBER TERM — January 18, 1978

Before Honorable Oliver Seth, Honorable William J.

Holloway, Jr., and Honorable James E. Barrett,

Circuit Judges

MICHAEL BARONE,

Plaintiff-Appellant,

ve. . No. 76-1748

HONORABLE SUSAN

GRAHAM BARNES,

HONORABLE RICHARD D. LAMM,

HONORABLE J. D. Mac FARLANE,

and NICOLETTA MARIE BARONE,

Defendants-A ppellees.

This matter comes on for consideration of appellant’s

petition for rehearing in the captioned case.

Upon consideration whereof, the petition for rehear-

ing is denied.

HOWARD K. PHILLIPS, Clerk

—————

APPENDIX C

TEXT OF COLORADO UNIFORM DISSOLUTION

OF MARRIAGE ACT

Article 10 of Title 14, Colorado Revised Statutes

14-10-101. Short title. This article shall be known

and may be cited as the “Uniform Dissolution of Marriage

Act”.

14-10-102. Purposes - rules of construction. (1) This

article shall be liberally construed and applied to promote

its underlying purposes.

(2) Its underlying purposes are.

(a) To promote the amicable settlement of disputes

that have arisen between parties to a marriage;

(b) To mitigate the potential harm to the spouses

and their children caused by the process of legal dissolu-

tion of marriage; and

(ec) To make the law of legal dissolution of marriage

more effective for dealing with the realities of matrimonial

experience by making an irretrievable breakdown of the

marriage relationship the sole basis for its dissolution.

14-10-103. Definition and interpretation of terms.

(1) As used in this article, unless the context otherwise

requires, the term “decree” includes the term “judgment”,

and, for the purpose of the tax laws of the state of Colorado

or of any other jurisdiction, the term “maintenance” in-

cludes the term “alimony”.

(2) Whenever any law of this state refers to or

mentions divorce , annulment, or separate maintenance,

said law shall be interpreted as if the words dissolution of

marriage, declaration of invalidity of marriage, and legal

separation, respectively, were substituted therefor.

14-10-104. Uniformity of application and construc-

tion. (1) This article shall be so applied and construed as

to effectuate its general purpose to make uniform the law

with respect to the subject of this article among those states

which enact it.

(2) The term “irretrievable breakdown” shall be

construed as being similar to other terms having a like im-

port in the law of other jurisdictions adopting this or a

similar law.

14-10-105. Application of Colorado rules of civil pro-

cedure. (1) The Colorado rules of civil procedure apply to

all proceedings under this article, except as otherwise spe-

cifically provided in this article.

(2) <A proceeding for dissolution of marriage, legai

separation, or declaration of invalidity of marriage shall

be entitled “In re the Marriage of ..... MG + é«ves ” A

custody or support proceeding shall be entitled “In re the

(Custody) (Support) of ..... ‘

(3) The initial pleading in all proceedings under

this article shall be denominated a petition. A responsive

pleading shall be denominated a response. Other pleadings

and all pleadings in other matters under this article shall

be denominated as provided in the Colorado rules of civil

procedure.

ee Rt 1 OR an nl gE

;

14-10-106. Dissolution of marriage - legal separation.

(1) (a) The district court shall enter a decree of dissolu-

tion of marriage when.

(I) The court finds that one of the parties has been

domociled in this state for ninety days next preceding the

commencement of the proceeding, but in no event shall a

decree enter prior to ninety days after service of process;

and

(II) The court finds that the marriage is irre-

trievably broken.

(b) In connection with every decree of dissolution

of marriage and to the extent of its jurisdiction to do so,

the court shall consider, approve, or make provision for

child custody, the support of any child of the marriage who

is entitled to support, the maintenance of either spouse,

and the disposition of property; but the entry of a decree

with respect to custody, support, maintenance, or disposi-

tion of property may be deferred by the court until a time

subsequent to the decree of dissolution of marriage upon

a finding that such deferral is necessary in the best in-

terests of the parties.

(2) Ifa party requests a decree of legal separation

rather than a decree of dissolution of marriage, the court

shall grant the decree in that form unless the other party

objects.

14-10-107. Commencement - pleadings - abolition of

existing defenses. (1) Al! proceedings under this article

shall be commenced in the manner provided by the Colorado

rules of civil procedure.

(2) The petition in a proceeding for dissolution of

marriage or legal separation shall allege the marriage is

irretrievably broken and shall set forth:

(a) The residence of each party and the length of

residence in this state;

(bi The date and place of the marriage;

(d) The names, ages, and addresses of any living

children of the marriage and whether the wife is pregnant;

(e) Any arrangements as to the custody and support

of the children and the maintenance of a spouse; and

(f) The relief sought.

(3) Either or both parties to the marriage may

initiate the proceeding.

(4) Upon the commencement of a proceeding by

one of the parties, the other party shall be personally served

in the manner provided by the Colorado rules of civil pro-

cedure, and he may file a response in accordance with such

rules, except that, upon motion verified by the oath of the

party commencing the proceeding or of someone in his be-

half for an order of publication stating the facts authoriz-

ing such service, and showing the efforts, if any, which

have been made to obtain personal service within this state,

and giving the address or last known address of each per-

son to be served or stating that his address and last known

address are unknown, the court shall hear the motion ex

parte and, if satisfied that due diligence has been used to

obtain personal service within this state or that efforts to

obtain the same would have been to no avail, shall order one

20 ee ae

publication of a consolidated notice in a newspaper pub-

lished or having general circulation in the county in which

the proceeding is filed, notwithstanding the provisions of

article 70 of title 24 C.R.S. 1973. A consolidated notice

shall be published at least once during a calendar month

and shall list the proceedings filed subsequent to those

named in the previously published consolidated notice, stat-

ing as to each proceeding the names of the parties, the

action number, the nature of the action, that a copy of the

petition and summons may be obtained from the clerk of

the court during regular business hours, and that default

judgment may be entered against that party upon whom

service is made by such notice if he fails to appear or file

a response within thirty days after the date of publication.

Costs of publication of a consolidated notice may be assessed

pro rata to each of the proceedings named in the notice;

except that, if a party is indigent or otherwise unable to

pay such publication costs, the costs shall be paid by the

court from funds appropriated for the purpose. Service

shall be complete upon such publication, and a response or

appearance by the party served by publication under this

subsection (4) shall be made within thirty days thereafter,

or default judgment may be entered. No later than the day

of publication, the clerk of the court shall also post for

thirty consecutive days a copy of the process on a bulletin

board in his office, and shall mail a copy of the process to

the other party at his last known address, and shall place

in the file of the proceeding his certificate of posting and

mailing. Proof of publication of the consolidated notice

shall be by placing in the file a copy of the affidavit of

publication, certified by the clerk of the court to be a true

and correct copy of the original affidavit on file in the

clerk’s office.

(5) Defenses to divorce and legal separation exist-

ing prior to January 1, 1972, including but not limited to

condonation, connivance, collusion, recrimination, insanity,

and lapse of time, are hereby abolished.

(6) All issues raised by these proceedings shall be

resolved by the court sitting without a jury.

14-10-108. Temporary order or temporary injunc-

tion. (1) In a proceeding for dissolution of marriage, legal

separation, or child custody or a proceeding for disposition

of property, maintenance, or support following dissolution

of the marriage, either party may move for temporary pay-

ment of debts, use of property, maintenance, custody, sup-

port of a child of the marriage entitled to support, or

payment of attorney fees. The motion may be supported

by an affidavit setting forth the factual basis for the mo-

tion and the amounts requested.

(2) Asa part of a motion for such temporary orders

or by an independent motion accompanied by an affidavit,

either party may request the court to issue a temporary

injunction.

(a) Restraining any party from transferring en-

cumbering, concealing, or in any way disposing of any

property, except in the usual course of business or for the

necessities of life, and, if so restrained, requiring him to

notify the moving party of any proposed extraordinary

expenditures and to account to the court for all extraordin-

ary expenditures made after the order is issued;

(b) Enjoining a party from molesting or disturbing

the peace of the other party or of any child,

the home of the other party upon a showing that physical

or emotional harm would otherwise result.

(3) The court may issue a temporary restraining

order without requiring notice to the other party only if

it finds, on the basis of the moving affidavit or other evi-

dence, that irreparable injury would result to the moving

party if no order were issued until the time for responding

had elapsed.

(4) On the basis of the showing made, the court may

issue a temporary injunction and such temporary orders

as are just and proper in the circumstances.

(5) A temporary order or temporary injunction:

(a) Does not prejudice the rights of the parties or

the child which are to be adjudicated at subsequent hearing

in the proceeding;

(b) May be revoked or modified prior to final decree

on a showing by affidavit of the facts necessary to revoca-

tion or modification of a final decree under section 14-10-

122, and

less continued by the court for good cause to a date certain,

or when the petition for dissolution or legal separation is

voluntarily dismissed.

14-10-109. Enforcement of restraining orders. When-

ever there is exhibited to any duly authorized sheriff or

police officer a certified copy of a restraining order issued

by any district court, as provided for in section 14-10-108,

restraining and enjoining any person from threatening,

beating, striking, or assaulting any other person, or re-

quiring the person to remove himself from certain premises

and to refrain from loitering, entering, or remaining near

the premises thereafter, or requiring the doing or refrain-

ing from doing of any other act stated therein, and the copy

of the restraining order shows, under signature of the

person so serving, that a copy of the order has been properly

served upon the person named in the order, and the person

namd commits an obvious violation of its terms, it is the

duty of the sheriff or police officer to remove the violator

from the premises or to arrest said violator and take him

immediately before the court issuing the restraining order

or, if that court is not in session, to the nearest jail until the

convening of its next session to await further action for

the violation.

14-10-110. Jrvretrievable breakdown. (1) If both of

the parties by petition or otherwise have stated under oath

or affirmation that the marriage is irretrievably broken

or one of the parties has so stated and the other has not

denied it, there is a presumption of such fact, and, unless

controverted by evidence, the court shall, after hearing,

make a finding that the marriage is irretrievably broken.

(2) If one of the parties has denied under oath or

affirmation that the marriage is irretrievably broken, the

court shall consider all relevant factors, including the cir-

cumstances that gave rise to the filing of the petition and

the prospect of reconciliation, and shall:

(a) Make a finding whether the marriage is irre-

trievably broken; or

(b) Continue the matter for further hearing not less

than thirty days nor more than sixty days later, or as soon

thereafter as the matter may be reached on the court’s

calendar, and may suggest to the parties that they seek

counseling. At the adjourned hearing, the court shall make

a finding whether the marriage is irretrievably broken.

14-10-111. Declaration of invalidity. (1) The district

court shall enter its decree declaring the invalidity of a

marriage entered into under the following circumstances:

(a) A party lacked capacity to consent to the mar-

riage at the time the marriage was solemnized, either be-

cause of mental incapacity or infirmity or because of the

influence of alcohol, drugs, or other incapacitating sub-

stances.

(b) <A party lacked the physical capacity to consum-

mate the marriage by sexual intercourse, and the other

party did not at the time the marriage was solemnized know

of the incapacity.

and did not have the consent of his parents or guardian or

judicial approval as provided by law.

(d) One party entered into the marriage in reliance

upon a fraudulent act or representation of the other party,

which fraudulent act or representation goes to the essence

of the marriage.

(e) One or both parties entered into the marriage

under duress exercised by the other party or a third party,

whether or not such other party knew of such exercise of

duress. —

(f) One or both parties entered into the marriage

as a jest or dare.

(g) The marriage is prohibited by law, including

the following:

(I) A marriage entered into prior to the dissolution

of an earlier marriage of one of the parties;

(II) A marriage between an ancestor and a decend-

ant or between a brother and a sister, whether the relation-

ship is by the half or the whole blood or by adoption;

(III) A marriage between an uncle and a niece or

between an aunt and a nephew, whether the relationship

is by the half or the whole blood, except as to marriages

permitted by the established customs of aboriginal cultures;

(IV) A marriage which was void by the law of the

place where such marriage was contracted.

(2) A declaration of invalidity under subsection (1)

of this section may be sought by any of the following per-

sons and shall be commenced within the times specified,

but in no event may a declaration of invalidity be sought

after the death of either party to the marriage, except as

provided in subsection (3) of this section:

(a) For the reasons set forth in either subsection

(1) (a), (1) (d), (1) (e), or (1) (f) of this section, by

either party to the marriage who was aggrieved by the

conditions or by the legal representative of the party who

lacked capacity to consent no later than six months after

the petitioner obtained knowledge of the described condi-

tion;

(b) For the reason set forth in subsection (1) (b)

of this section, by either party no later than one year after

the petitioner obtained knowledge of the described con-

dition;

of this section, by the underaged party, his parent, or his

guardian, if such action for declaration of invalidity of

me wen tre pd oe

en Ot re Oe

marriage is commenced within twenty-four months of the

date the marriage was entered into.

(3) <A declaration of invalidity, for the reason set

forth in subsection (1) (g) of this section, may be sought

by either party; by the legal spouse in case of bigamous,

polygamous, or incestuous marriages, by the appropriate

state officials, or by a child of either party at any time prior

to the death of either party or prior to the final settlement

of the estate of either party and the discharge of the per-

sonal representative, executor, or administrator of the

estate or prior to six months after an estate is closed under

section 15-12-1204, C.R.S. 1973.

(4) Children born of a marriage declared invalid

are legitimate.

(5) Marriages declared invalid under this section

shall be so declared as of the date of the marriage.

(6) The provisions of this article relating to the

property rights of spouses, maintenance, and support and

custody of children on dissolution of marriage are applic-

able to decrees of invalidity of marriage.

(7) No decree shall be entered unless one of the par-

ties has been domiciled in this state for thirty days next

preceding the commencement of the proceeding or unless

the marriage has been contracted in this state. |

14-10-112. Separation agreement. (1) To promote

the amicable settlement of disputes between the parties to

a marriage attendant upon their separation or the dis-

solution of their marriage, the parties may enter into a

written separation agreement containing provisions for the

maintenance of either of them, the disposition of any prop-

erty owned by either of them, and the custody, support, and

visitation of their children.

(2) In a proceeding for dissolution of marriage or

for legal separation, the terms of the separation agreement,

except terms providing for the custody, support, and visita-

tion of children, are binding upon the court unless it finds,

after considering the economic circumstances of the parties

and any other relevant evidence produced by the parties,

on their own motion or on request of the court, that the

separation agreement is unconscionable.

(3) If the court finds the separation agreement un-

conscionable, the court may request the parties to submit a

revised separation agreement, or the court may make orders

for the disposition of property, support, and maintenance.

(4) If the court finds that the separation agreement

is not unconscionable as to support, maintenance, and prop-

erty:

(a) Unless the separation agreement provides to

the contrary, its terms shall be set forth in the decree of

dissolution or legal separation, and the parties shall be

ordered to perform them, or

(b) If the separation agreement provides that its

terms shall not be set forth in the decree, the decree shall

identify the separation agreement and shall state that the

court has found the terms not unconscionable.

(5) Terms of the agreement set forth in the decree

may be enforced by all remedies available for the enforce-

ment of a judgment, inciuding contempt, but are no longer

enforceable as contract terms.

eee eae ee

- see

(6) Except for terms concerning the support, cus-

tody, or visitation of children, the decree may expressly

preclude or limit modification of terms set forth in the

decree if the separation agreement so provides.

14-10-113. Disposition of property. (1) In a proceed-

ing for dissolution of marriage or in a proceeding for legal

separation or in a proceeding for disposition of property

following the previous dissolution of marriage by a court

which at the time of the prior dissolution of the marriage

lacked personal jurisdiction over the absent spouse or

lacked jurisdiction to dispose of the property, the court

shall set apart to each spouse his property and shall divide

the marital property, without regard to marital miscon-

duct, in such proportions as the court deems just after

considering all relevant factors including:

(a) The contribution of each spouse to the acquisi-

tion of the marital property, including the contribution of

a spouse as homemaker;

(b) The value of the property set apart to each

spouse ;

the time the division of property is to become effective, in-

cluding the desirability of awarding the family home or

the right to live therein for reasonable periods to the spouse

having custody of any children, and

(d) Any increases or decreases in the value of the

separate property of the spouse during the marriage or

the depletion of the separate property for marital purposes.

(2) For purposes of this article only, “marital prop-

erty” means all property acquired by either spouse subse-

quent to the marriage except:

(a) Property acquired by gift, bequest, devise, or

descent;

(b) Property acquired in exchange for property ac-

quired prior to the marriage or in exchange for property

acquired by gift, bequest, devise, or descent;

legal separation; and

(d) Property excluded by valid agreement of the

parties.

(3) All property acquired by either spouse subse-

quent to the marriage and prior to a decree of legal separa-

tion is presumed to be marital property, regardless of

whether title is held individually or by the spouses in some

form of coownership such as joint tenancy, tenancy in com-

mon, tenancy by the entirety, and community property.

The presumption of marital property is overcome by a

showing that the property was acquired by a method listed

in subsection (2) of this section.

(4) An asset of a spouse acquired prior to the mar-

riage or in accordance with subsection (2) (a) or (2) (b)

of this section shall be considered as marital property, for

purposes of this article only, to the extent that its present

value exceeds its value at the time of the marriage or at

the time of acquisition if acquired after the marriage.

(5) For purposes of this section only, property shall

be valued as of the date of the decree or as of the date of

the hearing on disposition of property if such hearing pre-

cedes the date of the decree.

SA AR Rie Metin ds ti Ot eS

ES ee er FRE I a I Re MF ee Bt heey ete 2 rm

14-10-114. Maintenance. (1) In a proceeding for

dissolution of marriage or legal separation or a proceeding

for maintenance following dissolution of marriage by a

court, the court may grant a maintenance order for either

spouse only if it finds that the spouse seeking maintenance.

(a) Lacks sufficient property, including marital

property apportioned to him, to provide for his reasonable

needs, and

(b) Is unable to support himself through appropri-

ate employment or is the custodian of a child whose condi-

tion or circumstances make it appropriate that the cus-

todian not be required to seek employment outside the home.

(2) The maintenance order shall be in such amounts

and for such periods of time as the court deems just, with-

out regard to marital misconduct, and after considering

all relevant factors including:

(a) The financial resources of the party seeking

maintenance, including marital property apportioned to

him, and his ability to meet his needs independently, in-

cluding the extent to which a provision for support of a

child living with the party includes a sum for that party

as custodian,

(b) Is unable to support himself through appropri-

ate employment or is the custodian of a child whose condi-

tion or circumstances make it appropriate that the

custodian not be required to seek employment outside the

home.

(2) The maintenance order shall be in such amounts

and for such periods of time as the court deems just, with-

out regard to marital misconduct, and after considering all

relevant factors including:

(a' The financial resources of the party seeking

maintenance, including marital property apportioned to

him, and his ability to meet his needs independently, in-

cluding the extent to which a provision for support of a

child living with the party includes a sum for that party

as custodian;

(b) The time necessary to acquire sufficient educa-

tion or training to enable the party seeking maintenance

to find appropriate employment;

(ec) The standard of living established during the

marriage;

(d) The duration of the marriage,

(e) The age and the physical and emotional condi-

tion of the spouse seeking maintenance; and

(f) The ability of the spouse from whom mainten-

ance is sought to meet his needs while meeting those of the

spouse seeking maintenance.

14-10-115. Child support. (1) In a proceeding for

dissolution of marriage, legal separation, maintenance, or

child support, the court may order either or both parents

owing a duty of support to a child of the marriage to pay

an amount reasonable or necessary for his support, without

regard to marital misconduct, after considering all relevant

factors including.

(a) The financial resources of the child;

(b) The financial resources of the custodial parent;

joyed had the marriage not been dissolved;

(d) The physical and emotional condition of the child

and his educational needs, and

(e) The financial resources and needs of the non-

custodial parent.

14-10-117. Payment of maintenance or support to

court. (1) Upon its own motion or upon motion of either

party, the court may at any time order that maintenance

or support payments be made to the clerk of the court, as

trustee, for remittance to the person entitled to receive the

payments.

(2) The clerk of the court shal] maintain records

listing the amount of payments, the date when payments

are required to be made, and the names and addresses of

the parties affected by the order.

(3) The parties affected by the order shall inform

the clerk of the court of any change of address or of other

conditions that may affect the administration of the order.

(4) Ifa party fails to make the required payment

and qualifies under section 14-6-112 or section 14-10-116,

the clerk of the court shall send by registered or certified

mail notice of the arrearage to the obligor. If payment of

the sum due is not made to the clerk of the court within ten

days after sending notice, the clerk may initiate contempt

proceedings against the obligor or refer the matter to the

attorney representing the party or the attorney appointed

under section 14-10-116 for further proceedings.

(5) The district attorney shall assist the court on

behalf of a person entitled to receive maintenance or sup-

port in all proceedings initiated under this section to en-

force compliance with the order,

(6) If the person obligated to pay support has left

or is beyond the jurisdiction of the court, the district attor-

ney may institute any other proceeding available under the

laws of this state for the enforcement of duties of support

and maintenance.

14-10-118. Assignments and enforcement of orders.

(1) The court may order the person obligated to pay sup-

port or maintenance to make an assignment of a part of

his periodic earnings or trust income to the person entitled

to receive the payments. The assignment is binding on the

employer, trustee, or other payor of the funds two weeks

after service upon him of notice that it has been made. The

payor shall withhold from the earnings or trust income

payable to the person obligated to support the amount

specified in the assignment and shall transmit the payments

to the person specified in the order. The payor may deduct

from each payment a sum not exceeding one dollar as re-

imbursement for costs. An employer shall not discharge or

otherwise discipline an employee as a result of a wage or

salary assignment authorized by this section. This section

shall not apply to trusts commonly referred to as “spend-

thrift trusts”’.

(2) The court has the power to require security to

be given to insure enforcement of its orders, in addition to

other methods of enforcing court orders prescribed by

statute or by the Colorado rules of civil procedure on or

after July 6, 1973.

14-10-119. Attorney’s fees. The court from time to

time, after considering the financial resources of both

parties, may order a party to pay a reasonable amount for

the cost to the other party of maintaining or defending any

proceeding under this article and for attorney’s fees, in-

cluding sums for legal services rendered and costs incurred

as0td

ee ata.

prior to the commencement of the proceeding or after entry

of judgment. The court may erder that the amount be paid

directly to the attorney, who may enforce the order in his

name.

14-10-120. Decree. (1) A decree of dissolution of

marriage or of legal separation is final when entered, sub-

ject to the right of appeal. An appeal from the decree of

dissolution that does not challenge the finding that the

marriage is irretrievably broken does not delay the finality

of that provision of the decree which dissolves the marriage

beyond the time for appealing from that provision, so that

either of the parties may remarry pending appeal.

(2) No earlier than six months after entry of a de-

cree of legal separation, on motion of either party, the court

shall convert the decree of legal separation to a decree of

dissolution of marriage.

(3) The clerk of the court shall give notice of the

entry of a decree of dissolution to the office of state regis-

trar of vital statistics in the division of administration of

the department of health, which office shall make this in-

formation available to the public upon request.

(a) If the marriage is registered in this state, to

the county clerk of the county where the marriage is regis-

tered, and the county clerk shall enter the fact of dissolu-

tion in his records; or |

(b) If the marriage is registered in another juris-

diction, to the appropriate official of that jurisdiction, with

the request that he enter the fact of dissolution in the ap-

propriate record.

(4) No decree that may enter shall relieve a spouse

from any obligation imposed by law as a result of the mar-

riage for the support or maintenance of a spouse determined

to be mentally incompetent by a court of competent juris-

diction prior to the decree, unless such spouse has sufficient

property or means of support.

14-10-121. Independence of provisions of decree or

temporary order. If a party fails to comply with a pro-

vision of a decree or temporary order or injunction, the

obligation of the other party to make payments for support

or maintenance or to permit visitation is not suspended;

but he may move the court to grant an appropriate order.

14-10-122. Modification and termination of provi-

sions for maintenance, support, and property disposition.

(1) Except as otherwise provided in section 14-10-112(6),

the provisions of any decree respecting maintenance or sup-

port may be modified only as to installments accruing

subsequent to the motion for modification and only upon a

showing of changed circumstances so substantial and con-

tinuing as to make the terms unconscionable. The provi-

sions as to property disposition may not be revoked or

modified unless the court finds the existence of conditions

that justify the reopening of a judgment.

(2) Unless otherwise agreed in writing or expressly

provided in the decree, the obligation to pay future main-

tenance is terminated upon the death of either party or

the remarriage of the party receiving maintenance.

(3) Unless otherwise agreed in writing or expressly

provided in the decree, provisions for the support of a child

are terminated by emancipation of the child but not by the

death of a parent obligated to support the child. When a

parent obligated to pay support dies, the amount of sup-

port may be modified, revoked, or commuted to a lump-sum

payment, to the extent just and appropriate in the circum-

stances.

14-10-123. Commencement of custody proceedings -

jurisdiction. (1) A child custody proceeding is commenced

in the district court or as otherwise provided by law.

(a) By a parent:

(I) By filing a petition for dissolution or legal separ-

ation; or

(II) By filing a petition seeking custody of the

child in the county where the child is permanently resident

or where he is found, or

(b) By a person other than a parent, by filing a

petition seeking custody of the child in the county where

the child is permanently resident or where he is found, but

only if the child is not in the physical custody of one of his

parents; or

physical custody of a child for a period of six months or

more, if such action is commenced within six months of

the termination of such physica] custody.

(2) Notice of a child custody proceeding shall be given

to the child’s parent, guardian, and custodian, who may

appear and be heard and may file a responsive pleading.

The court may, upon a showing of good cause, permit the

intervention of other interested parties.

14-10-124. Best interests of child. (1) The court

shall determine custody in accordance with the best inter-

ests of the child. In determining the best interests of the

child, the court shall consider all relevant factors, In-

cluding:

(a) The wishes of the child’s parents as to his cus-

tody;

(b) The wishes of the child as to his custodian;

child with his parents, his siblings, and any other person

who may significantly affect the child’s best interests;

(d) The child’s adjustment to his home, school, and

community; and

(e) The mental and physical health of all individuals

involved.

(2) The court shall not consider conduct of a pro-

posed custodian that does not affect his relationship to the

child.

14-10-125. Temporary orders, (1) A party to a cus-

tody proceeding may move for a temporary custody order.

The motion shall be supported by an affidavit, as provided

in section 14-10-132. The court may award temporary cus-

tody after a hearing or, if no objection, solely on the basis

of the affidavits.

(2) Ifa proceeding for dissolution of marriage or

legal separation is dismissed, any temporary custody order

is vacated unless a parent or the child’s custodian moves

that the proceeding continue as a custody proceeding and

the court finds, after a hearing, that the circumstances of

the parents and the best interests of the child require that

a custody decree be issued.

(3) If a custody proceeding commenced in the ab-

sence of a petition for dissolution of marriage or legal sep-

aration is dismissed, any temporary custody order is va-

cated.

14-10-126. Interviews. (1) The court may interview

the child in chambers to ascertain the child’s wishes as to

his custodian. The court may permit counsel to be present

at the interview. The court shall cause a record of the

interview to be made, and it shall be made part of the

record in the case.

(2) The court may seek the advice of professional

personnel whether or not they are employed on a regular

basis by the court. The advice given shall be in writing and

shall be made available by the court to counsel of record,

parties, and other expert witnesses upon request, but it shall

otherwise be considered confidential and shall be sealed

and shall not be open to inspection, except by consent of the

court. Counsel may call for cross-examination any profes-

sional personnel consulted by the court.

14-10-127. Investigations and veports. (1) In all

custody proceedings, the court shall, upon motion of either

party or upon the court’s own motion, order the court pro-

bation department or any county or district welfare de-

partment to investigate and file a written report concern-

ing custodial arrangements for the child. Except as other-

wise provided in this section, such report shall be considered

confidential and shall not be available for public inspection

unless by order of court. The cost of each investigation shall

be based on an ability to pay and shall be assessed as part

of the costs of the action or proceeding, and, upon receipt

of such sum by the clerk of court, it shall be transmitted

to the department or agency performing the investigation.

(2) In preparing his report concerning a child, the

investigator may consult any person who may have infor-

mation about the child and his potential custodial arrange-

ments. Upon order of the court, the investigator may refer

the child to professional personnel for diagnosis. The in-

vestigator may consult with and obtain information from

medical, psychiatric, or other expert persons who have

served the child in the past without obtaining the consent

of the parent or the child’s custodian; but the child’s con-

sent must be obtained if he has reached the age of sixteen

unless the court finds that he lacks mental capacity to

consent. If the requiremenis of subsection (3) of this sec-

tion are fulfilled, the investigator’s report may be received

in evidence at the hearing.

(3) The court shall mail the investigator’s report to

counsel and to any party not represented by counsel and

to any party not represented by counsel the investigator’s

file of underlying data and reports, complete texts of diag-

nostic reports made to the investigator pursuant to the

provisions of subsection (2) of this section, and the names

and addresses of all persons whom the investigator has

consulted. Any party to the proceeding may call the inves-

tigator and any person whom he has consulted for cross-

examination. No party may waive his right of cross-exami-

nation prior to the hearing.

14-10-128. Hearings. (1) Custody proceedings shall

receive priority in being set for hearing.

(2) The court may tax as costs the payment of neces-

sary travel and other expenses incurred by any person

whose presence at the hearing the court deems necessary to

determine the best interests of the child.

(3) The court without a jury shall determine ques-

tions of law and fact. If it finds that a public hearing may

be detrimental to the child’s best interests, the court may

exclude the public from a custody hearing but may admit

any person who has a direct and legitimate interest in the

particular case or a legitimate educational or research in-

terest in the work of the court.

(4) If the court finds it necessary in order to pro-

tect the child’s welfare that the record of any interview,

report, investigation, or testimony in a custody proceeding

be kept secret, the court shall make an appropriate order

sealing the record.

14-10-129. Visitation. (1) A parent not granted cus-

tody of the child is entitled to reasonable visitation rights

unless the court finds, after a hearing, that visitation by

the parent would endanger the child’s physical health or

significantly impair his emotional development.

(2) The court may make or modify an order grant-

ing or denying visitation rights whenever such order or

modification would serve the best interests of the child;

but the court shall not restrict a parent’s visitation rights

unless it finds that the visitation would endanger the child’s

physical health or significantly impair his emotional de-

velopment.

14-10-130. Judicial supervision. (1) Except as other-

wise agreed by the parties in writing at the time of the

custody decree, the custodian may determine the child’s

upbringing, including his education, health care, and re-

ligious training, unless the court, after hearing and upon

motion by the non-custodial parent, finds that, in the ab-

sence of a specific limitation of the custodian’s authority,

the child’s physical health would be endangered or his

emotional development significantly impaired.

(2) If both parents or all contestants agree to the

order or if the court finds that in the absence of the order

the child’s physical health would be endangered or his emo-

tional development significantly impaired, the court may

order the county or district welfare department or the

court’s probation department to exercise continuing super-

vision over the case to assure that the custodial or visitation

terms of the decree are carried out.

14-10-131. Modification. (1) If a motion for modi-

fication has been filed, whether or not it was granted, no

subsequent motion may be filed within two years after dis-

position of the prior motion unless the court decides, on the

basis of affidavits, that there is reason to believe that the

child’s present environment may endanger his physical

health or significantly impair his emotional development.

(2) The court shall not modify a prior custody de-

cree unless it finds, upon the basis of facts that have arisen

since the prior decree or that were unknown to the court

at the time of the prior decree, that a change has occurred

in the circumstances of the child or his custodian and that

the modification is necessary to serve the best interests of

the child. In applying these standards, the court shall retain

the custodian established by the prior decree unless:

(a) The custodian agrees to the modification;

(b) The child has been integrated into the family of

the petitioner with the consent of the custodian; or

(ce) The child’s present environment endangers his

physical health or significantly impairs his emotional de-

velopment and the harm likely to be caused by a change of

environment is outweighed by the advantage of a change

to the child.

14-10-1382. Affidavit practice. A party seeking a

temporary custody order or modification of a custody decree

shall submit, together with his moving papers, an affidavit

setting forth facts supporting the requested order or modi-

fication and shall give notice, together with a copy of his

affidavit, to other parties to the proceeding, who may file

opposing affidavits. The court shall deny the motion unless

it finds that adequate cause for hearing the motion is estab-

lished by the affidavits, in which case it shall set a date

for hearing on an order to show cause why the requested

order or modification should not be granted.

14-10-133. Effective date - applicability. This article

shall take effect January 1, 1972, and shall apply only to

actions affected by this article which are commenced on or

after such date; all such actions commenced prior to said

date shall be governed by the laws then in effect.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.