# Petition — Barone v. Barnes

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0575%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 435 U.S. 1007

## Text

| 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

ii
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

14

16, 17

11

. 19, 21

22

11

17

1]

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,
22
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.
23
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

iv
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)

16

Vv

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 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:

30

(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-

31

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.)

32

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

33

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

34

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.

35

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

a

—————

37

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”.

38

(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

|
;
|

39

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

40

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;
(c) The date on which the parties separated;

(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

41

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

42

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,

(c) Excluding a party from the family home or from
the home of the other party upon a showing that physical
or emotional harm would otherwise result.

43

(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

(c) Terminates when the final decree is entered, un-
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-

44

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.

45

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.

(c) A party was under the age as provided by law
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.

r

(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;

46

(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;

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

47

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-

18

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

49

(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 ;

(c) The economic circumstances of each spouse at
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-

50

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;

(c) Property acquired by a spouse after a decree of
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

51

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:

52

(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;

(c) The standard of living the child would have en-
joyed had the marriage not been dissolved;

53

(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,

54

(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.

55

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

56

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

57

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

(c) By a person other than a parent who has had
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

58

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;

(c) The interaction and interrelationship of the
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.

59

(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.

60

(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-

61

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.

62

(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.

63

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0575%3A1. Public record. Not legal advice.