Opinion
Aug. 22, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Schwartz & Snyder, Arthur M. Schwartz, Denver, for defendant-appellant.
No appearance for plaintiff-appellee.
DWYER, Judge.
This is an appeal by defendant-appellant from a judgment by which he was found guilty of contempt and sentenced to six months imprisonment. The proceedings were initiated by defendant's former wife, the plaintiff-appellee.
Plaintiff and defendant were divorced in 1958, and an order was entered in those proceedings requiring defendant to pay to plaintiff the sum of $65 per month for the support of two children of the parties. In 1963, plaintiff cited defendant for contempt for failure to make the payments required by the order. The proceedings, however, were dismissed on stipulation of the parties. In February 1971, plaintiff obtained a judgment in the sum of $6,848 against defendant for arrearages which had accumulated under the order since 1963.
In October 1971, plaintiff instituted the present contempt proceedings by filing a petition alleging that the judgment against defendant for accumulated arrearages was unpaid; that since February 1971, defendant was in arrears in the sum of $585; and that defendant's failure to pay the judgment and his failure to make support payments since the entry of the judgment for arrearages constituted a contempt of court. After a hearing on the citation issued on this petition, the trial court entered its judgment and sentence.
The defendant contends that the contempt proceedings were barred by laches. Our Supreme Court held in Price v. Price,
Page 374.
80 Colo. 158, 249 P. 648, that contempt proceedings by which the wife, after the lapse of more than 15 years, sought to enforce a support money order against the husband was barred by laches. The court held that plaintiff's long delay without cause or excuse constituted laches which operated to release the husband from the enforcement of the drastic remedy of contempt.
In the present case, the plaintiff was guilty of laches in failing to enforce the support money order from 1963 until she obtained the judgment in 1971. The defendant could not be found guilty of contempt for failure to pay the support money order which was reduced to judgment in February 1971. However, the support money order is a continuing one, and laches is not available as a defense to the enforcement of defendant's current obligation to comply with the support order. Defendant's failure to pay support during the months of February through October 1971 constituted a contempt for which he could be punished.
Defendant also argues that, since plaintiff had obtained a judgment for arrearages, she could not enforce this judgment by contempt proceedings. Since the remedy of contempt as to the arrearages judgment was barred by laches, it is unnecessary to consider the merits of this argument. The fact that plaintiff had obtained a judgment for the arrearages accumulated prior to February 1971 would not prevent her from enforcing by contempt proceedings defendant's current and continuing obligation to pay support.
The sentence imposed by the court was based upon its finding that the defendant was guilty of contempt in failing to make current payments and in failing to make payments prior to the judgment in February 1971. The court properly found defendant in contempt for his failure to make the support money payments subsequent to February of 1971, but the court was in error in finding defendant in contempt for failure to pay the arrearages which had accrued as of that date.
The six months sentence was based in part on an erroneous finding of contempt, and the cause is remanded for a reconsideration of the sentence.
Judgment reversed and remanded.
PIERCE and SMITH, JJ., concur.