Markv.Mark

Colorado Court of AppealsDec 20, 1984
697 P.2d 799 (Colo. App. 1984)

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No. 83CA1280

Decided December 20, 1984. Rehearing Denied January 17, 1985. Certiorari Denied April 1, 1985.

Appeal from the District Court of the City and County of Denver Honorable Warren O. Martin, Judge Honorable Lynne M. Hufnagel, Judge

Bartholomew Cristiano, Francis V. Cristiano, for Plaintiff-Appellee.

McMichael Benedict, Mitchell Benedict III, for Defendant-Appellant. Division II.


Richard L. Mark, defendant, appeals an order of the trial court entered, nunc pro tunc November 15, 1982, which granted the C.R.C.P. 54(h) motion of plaintiff, Marjorie B. Mark, to revive a judgment entered November 15, 1962. We reverse and remand with directions.

On November 15, 1962, a judgment was entered against defendant in the amount of $124,751.05. This amount consisted of arrearages in child support and alimony from May 1959 to November 1962, and for bills defendant was ordered to pay. It appears that defendant made no payments on the judgment.

Plaintiff filed a motion to revive the judgment pursuant to C.R.C.P. 54(h) on June 22, 1982. Defendant was duly served with the motion and a notice to show cause pursuant to C.R.C.P. 54(h). Thereafter, in July of 1982, he filed appropriate answers raising several issues requiring determination by the court. On January 27, 1983, plaintiff requested that the court set the motion to revive for hearing. At that time the hearing was scheduled for June 20, 1983.

Plaintiff's motion was heard on June 20, although neither party appeared. At the conclusion of the hearing, the court entered its oral order, nunc pro tunc November 15, 1982, reviving plaintiff's 1962 judgment. A written order confirming the oral order was entered on June 29, 1983.

Defendant contends that the trial court erred, as a matter of law, by reviving the 1962 judgment after more than twenty years had passed between the date of the original judgment and the date of the order, June 29, 1983, which revived it. We agree.

C.R.C.P. 54(h) governs revival of judgments and provides in pertinent part:

"A revived judgment must be entered within twenty years after the entry of the judgment which it revives, and may be enforced and made a lien in the same manner and for like period as an original judgment . . . ."

This rule is not, as plaintiff argues, analogous to a statute of limitation. See Clark v. Glazer, 4 Kan. App. 2d 658, 609 P.2d 1177 (1980). Statutes of limitation merely limit the time within which aggrieved parties must seek to invoke a court's jurisdiction. Failure to request relief within the statutory time limit thus bars them from pursuing their quest for judicial relief. Such statutes operate only against the parties and do not deprive the court of its jurisdiction over either the subject matter or the parties.

In contrast, C.R.C.P. 54(h) is a rule which limits the power and jurisdiction of a court to revive a judgment. Thus, if a court does not enter a reviving judgment within the twenty-year period it loses jurisdiction to do so. It is therefore the date on which the court acts that is determinative of its jurisdiction, not the date on which a party requests revival.

Other jurisdictions have generally followed this reasoning in interpreting statutes which are similar to our rule. These cases hold that failure to enter a revived judgment within the time period established by statute deprives the court of its jurisdiction. This has been the rule even if the motion to revive the judgment was filed prior to the end of the statutory period. See Tefft v. Citizens Bank, 36 Kan. 457, 13 P. 783 (1887); Youts v. Tri-State Supply Co., 202 Okla. 240, 211 P.2d 1017 (1949); Bartlett Mortgage Co. v. Morrison, 183 Okla. 214, 81 P.2d 318 (1938). Revival procedure in Colorado is governed by procedural rule rather than by statute; however, we find these cases to be persuasive. Therefore, we hold that, under the plain language of C.R.C.P. 54(h), a revived judgment must be entered " within twenty years after the entry of judgment which it revives . . . ."

Plaintiff could have revived her judgment for an additional twenty year period at any time during the initial twenty years of its existence, instead she chose to wait until less than six months prior to its expiration. Although she filed her motion prior to expiration of the twenty-year period on November 15, 1982, she did not file her notice to set until January 1983, and the court did not hear the matter until June 1983, seven months after the expiration of the twenty year period. Thus, it was without jurisdiction to revive the 1962 judgment.

Moreover, the court's order, nunc pro tunc November 15, 1982, is, in effect, an attempt to avoid the impact of the twenty-year requirement of C.R.C.P. 54(h). A trial court may not regain jurisdiction, once it has been lost, by purporting to act in the past. Nunc pro tunc judgments may not be used to circumvent the time requirements set forth in our procedural rules. Dill v. County Court, 37 Colo. App. 75, 541 P.2d 1272 (1975).

In view of our conclusion defendant's other issues need not be addressed.

The order is reversed, and the cause is remanded with directions to the trial court to set aside the revival order and to dismiss the motion to revive.

JUDGE KELLY concurs.

JUDGE STERNBERG dissents.