Rieger
v.
Rieger

Not overruled or negatively treated on appealinfoCoverage
Colorado Court of Appeals. Division IJun 30, 1977
39 Colo. App. 471 (Colo. App. 1977)
39 Colo. App. 471566 P.2d 722

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    …Our conclusion is supported by case law in this and other jurisdictions. In Rieger v. Rieger, 39 Colo.App.…

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No. 76-733

Decided June 30, 1977.

Trial court enjoined plaintiff from district court contract action that represented a challenge to validity of divorce decree. Plaintiff appealed.

Affirmed

1. DIVORCEProperty Settlement Agreement — Not Sufficiently Distinct — Divorce Decree — Support Independent Action — Collateral Attack — Divorce Decree — Different District Court — Properly Enjoined. Although, as an incident to 1968 divorce, parties entered property settlement agreement, that agreement is not sufficiently distinct in legal effect from the divorce decree to permit an independent action relative thereto; thus, since the court which issued the divorce decree retained continuing jurisdiction relative to that agreement, a fraud and breach of contract action initiated in different district court was an impermissible collateral attack on the trial court's decree, and it was thus within the authority of the trial court to enjoin plaintiff from proceeding in that litigation.

2. INJUNCTIONNotice — Hearing on Permanent Injunction — Previous Litigation — Other Circumstances — Adequate Notice Given. Where some years after property settlement of the parties had been incorporated in divorce decree, plaintiff initiated an action in a different district court premised upon fraud and breach of that settlement agreement, and thereafter plaintiff moved for a permanent injunction which motion was fully argued at a hearing some months later, where the temporary injunction or writ of prohibition thereafter issued by the trial court did not expire by its own terms, and where the record reveals that plaintiff neither objected to defendant's request that the injunction be made permanent nor requested a continuance on the ground of lack of notice; held, under the circumstances, plaintiff was afforded adequate notice of the matter to be resolved at the hearing on the permanent injunction.

Appeal from the District Court of Arapahoe County, Honorable Marvin W. Foote, Judge.

Lowery, Right, Linn Glicksman, P.C., Daniel Woodrow, for plaintiff-appellant.

Martin P. Miller, for defendant-appellee.


This divorce proceeding was commenced in 1968 in Arapahoe County District Court. Following entry of the decree and its subsequent affirmance by this court, the trial court permanently enjoined plaintiff, Lee Rieger, from pursuing a contract action in Denver District Court. From the granting of that injunction, plaintiff appeals. We affirm the judgment.

Incident to their divorce, plaintiff and defendant entered into a property settlement agreement. The agreement was approved by the court and incorporated by reference into the court's order. Plaintiff thereafter moved to reform the agreement and modify the divorce decree, which motion was denied. Plaintiff then appealed the trial court's judgment and we affirmed on the merits.

While plaintiff's motion for reformation was pending in the Arapahoe County District Court, plaintiff initiated a suit in July 1974, in the Denver District Court seeking damages for fraud, constructive fraud, and an alleged breach of contract arising out of the execution and approval of the agreement. Defendant then, on November 27, 1974, moved for a permanent injunction enjoining plaintiff from prosecuting the Denver District Court action. After a hearing in April 1975, the trial court issued an order constituting either a temporary injunction, or in the alternative, a writ of prohibition prohibiting further proceedings in the Denver District Court pending resolution of the appeal to this court. Until such eventuality occurred, the order by its terms was to remain "in full force and effect."

In June 1976, plaintiff filed a motion to revoke the writ of prohibition. After a hearing the court found that plaintiff's complaint in the Denver District Court raised the same issues with respect to the agreement which were decided adversely to her in the divorce action. It concluded that plaintiff could not collaterally attack the validity of its decree and consequently entered the permanent injunction which is the subject of this appeal.

I.

Plaintiff first contends that the granting of a permanent injunction is contrary to established precedent in this jurisdiction. Relying on Murphy v. Murphy, 138 Colo. 516, 335 P.2d 280 (1959) and similar cases, plaintiff argues that her suit in the Denver District Court was an independent action based upon the terms of the agreement rather than the divorce decree and therefore is not a collateral attack on a valid judgment. We disagree.

Prior to the enactment of C.R.S. 1963, 46-1-5(6), a contract action could be maintained under the terms of an agreement by the parties relative to divorce, the specific provisions of which were not recited in the decree even though they were approved by the court and incorporated by reference in the decree. Murphy v. Murphy, supra. Section 46-1-5(6), however, constituted a legislative repudiation of the principle announced in Murphy. Grossman v. Grossman, 159 Colo. 184, 411 P.2d 237 (1966). Under that statute, the reference to an agreement in a divorce decree is sufficient to merge the agreement into the decree. See In re Marriage of Seymour, 36 Colo. App. 104, 536 P.2d 1172 (1975).

[1] In light of the foregoing, we see no merit in plaintiff's arguments based on the premise that the agreement is a contract sufficiently distinct in legal effect from the decree to permit an independent action. The trial court retained continuing jurisdiction of the matter here; C.R.S. 1963, 46-1-5(4); Ingels v. Ingels, 29 Colo. App. 585, 487 P.2d 812 (1971), and, inasmuch as plaintiff's action in the Denver District Court was an impermissible collateral attack on the trial court's decree, see In re the Estate of Bonfils, 190 Colo. 70, 543 P.2d 701 (1976); Public Service Co. v. Miller, 135 Colo. 575, 313 P.2d 998 (1957); Cherry Hill v. Benevolent League of Colorado Travelers Ass'n, 133 Colo. 349, 295 P.2d 231 (1956); and cf. United States National Bank v. Bartges, 122 Colo. 546, 224 P.2d 658 (1958), it was within the authority of the trial court to enjoin plaintiff from proceeding in that litigation. Hayutin v. Hayutin, 152 Colo. 261, 381 P.2d 272 (1963).

II.

Nor is there any merit to plaintiff's contention that she was denied notice, as required by C.R.C.P. 6(d), of defendant's motion for a permanent injunction.

[2] Defendant moved in November 1974 for a permanent injunction, which motion was fully argued at the hearing in April 1975. The temporary injunction or writ of prohibition thereafter issued by the trial court did not, contrary to plaintiff's assertion, expire by its own terms. Rather, it was in effect at the time of plaintiff's motion to revoke, and the question before the court at the June 1976 hearing was whether the prohibition would continue in force or be revoked. The record reveals that plaintiff neither objected to defendant's request that the injunction be made permanent nor requested a continuance on the ground of lack of notice. Accordingly, we conclude that under the circumstances plaintiff was afforded adequate notice of the matter to be resolved at the latter hearing.

The judgment is affirmed.

JUDGE BERMAN and JUDGE KELLY concur.