Summary
holding that the supreme court has jurisdiction to compel a lower court to follow an order of remittitur
Summary of this case from Powell v. HartOpinion
No. 22165.
Decided October 27, 1969.
Original proceeding involving show cause order to trial court as to whether and in what manner it had complied with remittitur and motion by ex-husband to vacate order on ground of want of jurisdiction.
Rule Made Absolute.
1. COURTS — Supreme Court — Jurisdiction — Compel — Obedience — Remittitur — District Court — Support Payments. Supreme Court has jurisdiction to compel obedience to its remittitur to district court to require that court to show cause as to whether and in what manner remittitur had been complied with.
2. DIVORCE — Orders — Vacation — Entry — Alimony — Arrearages. Trial court ordered to vacate all orders entered by it and: (1) enter judgment in favor of ex-wife and against ex-husband for arrearages in alimony and support money; (2) order execution to issue on judgment; (3) that determination of sum allocated as alimony be incorporated in order for alimony to ex-wife nune pro tunc; (4) that court make determination of accrued alimony and total sum paid by ex-husband be credited to alimony accrual found to be due; (5) determine deficiency remaining after crediting such payments.
Original Proceeding.
Cisneros and Huckeby, Richard M. Huckeby, for plaintiff in error.
Felix D. Lepore, for defendant in error.
On petition by Mildred K. Green, the successful party in this court, in a previous decision Green v. Green, 168 Colo. 303, 451 P.2d 283 announced March 3, 1969, we issued an order to the district court of Jefferson County and Hon. George G. Priest, one of the judges thereof, respondents, to show cause and to set forth how and in what manner it had complied with our mandate in the remittitur dated March 19, 1969.
The trial court did not respond to our order. There was, however, a motion filed herein by defendant in error Harold S. Green requesting that we vacate our show cause order on the ground of want of jurisdiction in this court. We hold that we do have jurisdiction to compel obedience to the remittitur issued out of this court. Rude v. Wagman, 78 Colo. 317, 241 P. 720; Phares v. Don Carlos, 74 Colo. 356, 221 P. 883; Galbreath v. Wallrich, 48 Colo. 127, 109 P. 417.
Accordingly, it is the order of this court that the trial court vacate all orders entered by it and that the following orders be specifically entered forthwith in the action below:
1. That the court enter judgment in favor of Mildred K. Green and against defendant Harold S. Green for arrearages in alimony and support money in the full sum of $4605 plus interest at 6% per annum from August, 1965.
2. That the court order execution to issue on said judgment entered against the said Harold S. Green.
3. That the trial court's determination that $225 per month (the figure of $275 in the court's findings is a typographical error) allocated as alimony to Mildred be incorporated in an order for alimony to her nunc pro tunc from November 26, 1965.
4. That the court make a determination of the alimony which would accrue for the period from November 26, 1965, to the date of the court hearing; that the court also calculate that total amount paid into the court by Harold S. Green at the rate of $100 per month pursuant to an order held void by this court. The total sum paid by the said Harold S. Green under said order is to be credited to the alimony accrual found to be due under the nunc pro tunc order.
5. That the court determine the deficiency remaining, after crediting the payments made by Harold S. Green to the accrual of alimony under the nunc pro tunc order, and enter such further orders in connection therewith as may be proper.
The rule is made absolute.