Opinion
No. 73-343
Decided August 13, 1974. Rehearing denied September 10, 1974. Certiorari granted January 6, 1975.
Caveator appealed from a judgment of probate court dismissing his caveat to various instruments purporting to be last will and testament of deceased.
Reversed
1. WILLS — Denver Probate Court — Subject Matter Jurisdiction — Collateral Attack — Judgment — Another Court — Determination — "Legal Questions" — Necessary — Settlement of Estate. The Denver Probate Court may entertain a collateral attack on the judgment on another court if determination of the issues raised by the collateral attack is necessary for settlement of an estate; thus, where caveator contended that he is the only heir of decedent by reason of an invalid decree of divorce and that decedent's wills are also invalid, such contentions require determination of "legal questions" in connection with rights asserted in property of the decedent, and the Denver Probate Court has subject matter jurisdiction.
2. JUDGMENT — Caveator to Will — Alleges Conspiracy — Prevented by Fraud — Defending Divorce Action — Extrinsic to Judgment — May Assert Invalidity — Collaterally — Estate Proceedings. Where caveator to will alleges that decedent did not desire divorce from him, but was induced to commence such an action as a result of undue influence exerted upon her by third persons acting in furtherance of a conspiracy to defraud caveator, and that thereafter he was fraudulently induced by the conspirators into consenting to the divorce and thereby prevented by fraud from defending against the divorce action, such allegations assert fraud which is extrinsic to the judgment; and, having thereby been denied the opportunity to defend against the divorce action by extrinsic fraud, caveator may assert the invalidity of that judgment collaterally in the estate proceedings of the decedent.
Appeal from the Probate Court of the City and County of Denver, Honorable David Brofman, Judge.
Belli, Ashe, Ellison Choulos, Melvin M. Belli, Michael Youngfellow, McNichols, Nigro Baldridge, Joseph F. Nigro, for caveator-appellant.
Predovich Ward, Lester L. Ward, Jr., Grosuch, Kirgis, Campbell, Walker Grover, Robert J. Kapelke, for proponents-appellees.
Edward Mike Davis (caveator) appeals from a judgment of the Denver Probate Court dismissing his amended caveat to the various instruments purporting to be the last will and testament of Helen G. Bonfils, deceased. We reverse.
In summary, caveator alleges that he is the lawful husband of the decedent and her only heir. Caveator acknowledges by his pleadings that a decree of divorce was entered purporting to sever the marriage with decedent and that a property settlement agreement was executed in connection therewith, but alleges that the decree and the agreement are void by reason of extrinsic fraud perpetrated against decedent, against caveator, and against the court which entered the decree.
More particularly, caveator alleges that for some time prior to initiation of the divorce action by decedent, decedent suffered from a variety of physical ailments which rendered her incapable of continuous concentration or of ambulation without assistance, and that these ailments caused decedent to be exhausted, confused, and unable to make independent or intelligent judgments and decisions. According to the caveat, the proponents and others entered into a conspiracy to deprive decedent of dominion and control over her vast resources. Specifically, it is alleged that the conspirators prevailed upon decedent through fraud and undue influence to divorce caveator and to create a charitable foundation to receive the assets of her estate. According to the caveat, the divorce was prompted by the acts of the conspirators in falsely maligning caveator's conduct and character, in spreading false rumors about him, and in preventing caveator and others friendly to him from contacting decedent personally or by telephone. It is alleged that decedent did not desire a divorce and that the caveator consented thereto based upon the false representations of the conspirators that the divorce was the voluntary wish of decedent. Caveator asserts that he neither had knowledge, nor by the exercise of due diligence could he have obtained prior knowledge of the conspiracy, fraud, and undue influence. By the caveat, caveator offers to return to the registry of the court all assets received by virtue of the property settlement agreement and requests all documents purporting to be the last will and testament of decedent be declared null and void.
Proponents of the will dated October 12, 1971, filed a motion to dismiss the amended caveat asserting, inter alia; (1) That by reason of the divorce, caveator was neither an heir nor legatee with standing to challenge the will; (2) that the probate court for the City and County of Denver is a court of limited jurisdiction and lacked subject matter jurisdiction; and (3) that, although caveator was asserting a collateral attack upon a judgment awarding decedent a decree of divorce, the amended caveat failed to allege extrinsic fraud which allegation is a prerequisite to such a collateral attack on a judgment. The probate court granted the motion on the grounds that it lacked jurisdiction to set aside the decree of divorce and on the grounds that caveator had failed to allege extrinsic fraud.
I. Jurisdiction
We consider first the issue of jurisdiction. If the Denver Probate Court has jurisdiction in this case, then the caveator may establish standing by proof of the allegations in the amended caveat that the divorce decree is invalid. We hold that the Denver Probate Court has subject matter jurisdiction.
Colo. Const. Art. VI, Sec. 9( 3) provides:
"In the city and county of Denver, exclusive original jurisdiction in all matters of probate, settlement of estates of deceased persons, appointment of guardians, conservators and administrators, and settlements of their accounts, the adjudication of the mentally ill, and such other jurisdiction as may be provided by law shall be vested in a probate court, created by section 1 of this article . . . . "
Pursuant to this constitutional provision, the General Assembly enacted 1965 Perm. Supp., C.R.S. 1963, 37-20-3(3), which provides:
"The court shall have jurisdiction to determine every legal and equitable question arising in connection with decedents', wards', and absentees' estates, so far as the question concerns any person who is before the court by reason of any asserted right in any of the property of the estate or by reason of any asserted obligation to the estate . . . . "
[1] It is therefore clear that the Denver Probate Court may entertain a collateral attack on the judgment of another court if determination of the issues raised by the collateral attack is necessary for settlement of an estate. Caveator's contentions that he is the only heir of decedent by reason of an invalid decree of divorce and that decedent's wills are also invalid requires determination of "legal questions" in connection with rights asserted in property of the decedent. Hence, the Denver Probate Court has subject matter jurisdiction.
II. Sufficiency of the Amended Caveat
In reviewing the judgment dismissing the amended caveat in this case, we are required to treat the allegations of fact in the caveat as admitted. See Cook v. Denver, 128 Colo. 578, 265 P.2d 700. The judgment cannot be sustained if substantive law will authorize relief under the facts alleged. Nelson v. Nelson, 31 Colo. App. 63, 497 P.2d 1284.
[2] In essence, the caveator in this case alleges that decedent did not desire a divorce from him, but was induced to commence such an action as the result of undue influence exerted upon her by third persons acting in furtherance of a conspiracy to defraud caveator. Thereafter, he was fraudulently induced by the conspirators into consenting to the divorce and thereby prevented by fraud from defending against the divorce action. These allegations assert fraud which is extrinsic to the judgment. See Matthews v. Matthews, 73 Colo. 597, 216 P. 704. Having been denied the opportunity to defend against the divorce action by extrinsic fraud, caveator may assert the invalidity of that judgment collaterally in the present estate proceeding. See Fahrenbruch v. People, 169 Colo. 70, 453 P.2d 601.
The judgment is reversed and the cause remanded to the Denver Probate Court with directions to determine the merits of caveator's collateral attack on the prior decree of divorce pursuant to 1965 Perm. Supp., C.R.S. 1963, 153-3-33.
JUDGE PIERCE concurs.
JUDGE SMITH dissents.