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14-10-108. Temporary orders in a dissolution case.

Statute text

(1) In a proceeding for dissolution of marriage, legal separation, the allocation of parental responsibilities, or declaration of invalidity of marriage or a proceeding for disposition of property, maintenance, or support following dissolution of the marriage, either party may move for temporary payment of debts, use of property, maintenance, parental responsibilities, support of a child of the marriage entitled to support, or payment of attorney fees. The motion may be supported by an affidavit setting forth the factual basis for the motion and the amounts requested.

(1.5) The court may consider the allocation of parental responsibilities in accordance with the best interests of the child, with particular reference to the factors specified in section 14-10-124 (1.5).

(2) As a part of a motion of such temporary orders or by an independent motion accompanied by an affidavit, either party may request the court to issue a temporary order:

(a) Restraining any party from transferring, encumbering, concealing, or in any way disposing of any property, except in the usual course of business or for the necessities of life, and, if so restrained, requiring him to notify the moving party of any proposed extraordinary expenditures and to account to the court for all extraordinary expenditures made after the order is issued;

(b) Enjoining a party from molesting or disturbing the peace of the other party or of any child;

(c) Excluding a party from the family home or from the home of the other party upon a showing that physical or emotional harm would otherwise result.

(2.3) and (2.5) (Deleted by amendment, L. 2004, p. 553, 4, effective July 1, 2004.)

(3) A party to an action filed pursuant to this article may seek, and the court may issue, a temporary or permanent protection order pursuant to the provisions of part 1 of article 14 of title 13, C.R.S.

(4) (Deleted by amendment, L. 2004, p. 553, 4, effective July 1, 2004.)

(5) A temporary order or temporary injunction:

(a) Does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding;

(b) May be revoked or modified prior to final decree on a showing by affidavit of the facts necessary to revocation or modification of a final decree under section 14-10-122; and

(c) Terminates when the final decree is entered, unless continued by the court for good cause to a date certain, or when the petition for dissolution or legal separation is voluntarily dismissed.

(6) (Deleted by amendment, L. 2004, p. 553, 4, effective July 1, 2004.)

(7) At the time a protection order is requested pursuant to part 1 of article 14 of title 13, C.R.S., the court shall inquire about, and the requesting party and such party's attorney shall have an independent duty to disclose, knowledge such party and such party's attorney may have concerning the existence of any prior protection orders or restraining orders of any court addressing in whole or in part the subject matter of the requested protection order.

History

Source: L. 71: R&RE, p. 522, 1. C.R.S. 1963: 46-1-8. L. 73: pp. 553, 555, 3, 12. L. 81: (6) added, p. 903, 1, effective May 13. L. 83: (1) amended, p. 644, 1, effective April 26; (1.5) added, p. 645, 1, effective June 10. L. 87: (1.5) amended, p. 575, 4, effective July 1. L. 94: (2.5) and (7) added and (3) amended, p. 2008, 4, effective January 1, 1995. L. 98: (2.3) added and (3) amended, p. 245, 4, effective April 13; (1) and (2.5) amended, p. 1396, 37, effective February 1, 1999. L. 99: (2.3) amended, p. 501, 4, effective July 1. L. 2000: (1.5) amended, p. 1844, 24, effective August 2. L. 2003: (2.3), (2.5), (3), (6), and (7) amended, p. 1010, 14, effective July 1. L. 2004: IP(2), (2.3), (2.5), (3), (4), (6), and (7) amended, p. 553, 4, effective July 1. L. 2013: (3) and (7) amended, (HB 13-1259), ch. 218, p. 1016, 17, effective July 1.

Annotations

 

ANNOTATION

Annotations

 

Analysis

 

I. General Consideration.
II. Temporary Orders.
III. Temporary Injunctions.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Legislative Update", see 12 Colo. Law. 1257 (1983).

Annotator's note. Since 14-10-108 is similar to repealed 46-1-5, C.R.S. 1963, 46-1-5, CRS 53, CSA, C. 56, 8, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

The general rule is that courts of equity should and will in a proper case enjoin a party to a divorce or separate maintenance action from proceeding in an annulment suit in a foreign jurisdiction. Hayutin v. Hayutin, 152 Colo. 261, 381 P.2d 272 (1963).

Evidence of extreme circumstances necessitating sale of co-owned property. If there is evidence of extreme circumstances that co-owned property needs to be sold to preserve equities therein, a court may decree a sale of the property prior to a final determination of the merits of the dissolution action. In re Gavend, 781 P.2d 161 (Colo. App. 1989).

Permanent orders that substantially reduce the amount of parenting time originally specified in the temporary orders are not subject to the endangerment standard but rather the best interests of the child standard. In re Fickling, 100 P.3d 571 (Colo. App. 2004).

Best interest standard, and not the endangerment standard, was properly applied to award father residential care despite mother's award of temporary custody, where awarding father residential custody of the children was not abuse of discretion and record supported findings. In re Monteil, 960 P.2d 717 (Colo. App. 1998).

Applied in In re Westlake, 674 P.2d 1386 (Colo. App. 1983).

II. TEMPORARY ORDERS.

Law reviews. For article, "Attorney Fees at Temporary Orders: Reality or Illusion?", see 24 Colo. Law. 2185 (1995).

An order granting a temporary change of custody following an ex parte hearing with no notice to the mother denied her due process where no evidence was presented and no finding was made that irreparable injury would result if no order were issued until the time for responding had elapsed. Olson v. Priest, 193 Colo. 222, 564 P.2d 122 (1977).

Court lost jurisdiction to enforce order. When an order dismissing a marriage dissolution action was signed, the court was divested of any further jurisdiction in that action and had no jurisdiction to hold husband in contempt for failing to pay support required by temporary order which was entered in that action. Hill v. District Court, 189 Colo. 356, 540 P.2d 1079 (1975).

The purpose of temporary alimony is to allow a wife to live in her accustomed manner during pendency of the action and to provide her with means to properly litigate the controversy, and is not definitive of her entitlement to support under permanent orders. Bieler v. Bieler, 130 Colo. 17, 272 P.2d 636 (1954); MacReynolds v. MacReynolds, 29 Colo. App. 267, 482 P.2d 407 (1971).

If she possesses independent means sufficient for these purposes the allowances should not be granted; however, she is not required first to impair the capital of her separate estate. Bieler v. Bieler, 130 Colo. 17, 272 P.2d 636 (1954).

The allowance of temporary alimony is dependent upon the existence of the marriage relation, and all necessary facts to establish such relation must be made to appear at least prima facie before such allowance is made by the court, but where a prima facie case is established alimony should be awarded. Eickhoff v. Eickhoff, 29 Colo. 295, 68 P. 237 (1902).

In an action for divorce where it is clear upon the admitted facts that the marriage alleged in the complaint is void in law, or where the preponderance of the evidence tends to show that there was never a marriage in fact, temporary alimony should not be awarded, and if awarded will be set aside on review. Eickhoff v. Eickhoff, 29 Colo. 295, 68 P. 237 (1902).

It appears that in a divorce proceeding, the right to apply for alimony pendente lite is dependent upon the previous filing of a complaint for a divorce, and then the application may be made to, and acted upon, by the court in term time, or by the judge in vacation. Eickhoff v. Eickhoff, 14 Colo. App. 127, 59 P. 411 (1899).

The allowance to be made for temporary alimony, attorney fees, and suit money is within the sound discretion of the trial court, and unless that discretion has been abused the order of allowance will not be disturbed on review. Cairnes v. Cairnes, 29 Colo. 260, 68 P. 233 (1902); Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926).

In a divorce suit where the wife was in indigent circumstances and the husband was a man of large means, an allowance of $50 per month as temporary alimony, $250 attorney fees, and $25 suit money was not excessive, and was not an abuse of discretion by the trial court. Eickhoff v. Eickhoff, 29 Colo. 295, 68 P. 237 (1902).

In determining the amount of temporary alimony to be allowed, the ability of the husband is an element to be considered, and the same element must necessarily be taken into consideration in fixing the amount of permanent alimony. Fahey v. Fahey, 43 Colo. 354, 96 P. 251 (1908).

If the evidence as to the ability of the husband to pay temporary alimony in a divorce action is conflicting, the order of the trial court based thereon is not reviewable. Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926).

An award of temporary alimony may be modified by the supreme court. Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926).

No appeal from temporary orders that have terminated due to entry of permanent orders. In re Jaeger, 883 P.2d 577 (Colo. App. 1994).

Temporary alimony awarded a wife cannot be modified except upon motion and sufficient showing in support thereof; thus, where no motion was made respecting the alimony, it was an abuse of discretion for the court to suspend the order for temporary alimony at a hearing on a citation for the husband to show cause why he was not in contempt of court for failure to pay alimony Wright v. Wright, 122 Colo. 179, 220 P.2d 881 (1950).

The question whether an order for temporary alimony should be modified is also within the discretion of the court. Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926).

Orders resolving child support issue are final. In dissolution proceedings, orders which resolve the issue of child support, even on a temporary basis, are final for purposes of review. In re Henne, 620 P.2d 62 (Colo. App. 1980).

"Final decree", as used in subsection (5)(c), is not limited to a final decree of dissolution, but may also include a final order concerning child support. In re Price, 727 P.2d 1073 (Colo. 1986); In re Nussbeck, 899 P.2d 347 (Colo. App. 1995), rev'd on other grounds, 974 P.2d 493 (Colo. 1999).

Where court continued determination of permanent child support to time subsequent to entry of decree of dissolution, temporary child support order was not terminated on date of dissolution by virtue of statute terminating temporary order or temporary injunction when final decree is entered. In re Price, 727 P.2d 1073 (Colo. 1986).

Temporary orders as to maintenance are reviewable as a final judgment even if there has not been a final judgment in the form of a decree of dissolution. In re Nussbeck, 899 P.2d 347 (Colo. App. 1995), rev'd on other grounds, 974 P.2d 493 (Colo. 1999).

If the decree of dissolution leaves the issue of maintenance to be resolved later, an order of temporary maintenance is not terminated on the date of dissolution by virtue of subsection (5)(c). When possible, however, at the time the decree is entered, the court should set a definite date for consideration of permanent orders concerning maintenance. In re Nussbeck, 899 P.2d 347 (Colo. App. 1995), rev'd on other grounds, 974 P.2d 493 (Colo. 1999).

A request for a temporary award includes attorney fees and related litigation expenses. In re Mockelmann, 944 P.2d 670 (Colo. App. 1997).

An award of attorney fees is a final judgment subject to appellate review as it establishes a financial right and obligation of the parties until the entry of permanent orders. A temporary award of attorney fees is based upon the same underlying premise as a temporary award of maintenance or child support in that it concerns the immediate financial need of the party to whom the attorney fees are awarded. In re Mockelmann, 944 P.2d 670 (Colo. App. 1997).

The duty to pay maintenance is independent and is not limited or specifically tied to the entry of a decree of dissolution. To allow a party to terminate his or her maintenance payments when a decree of dissolution is entered that is mute on the issue of maintenance would disturb the status quo, frustrate a central purpose of the statute, and allow evasion of an important stabilizing aspect of the dissolution process. In re Nussbeck, 899 P.2d 347 (Colo. App. 1995), rev'd on other grounds, 974 P.2d 493 (Colo. 1999).

Where a husband, plaintiff in a divorce suit, is unable to make reasonable provision for his wife during the pendency of the suit, the suit should be abated until he is able to do so. Cairnes v. Cairnes, 29 Colo. 260, 68 P. 233 (1902).

Where a wife, defendant in a divorce suit, is a nonresident of the state and desires to come to Colorado to defend the suit, she should be given an opportunity to do so and the plaintiff should be required to deposit in court a sufficient sum to pay to the state the expenses of the wife which shall be paid to her upon her arrival, within a reasonable time, with such additional sum as may be necessary to properly defend the suit. Cairnes v. Cairnes, 29 Colo. 260, 68 P. 233 (1902).

Where a trial court denies motions of both parties with respect to temporary alimony pending trial on the merits, a writ of error to review such action is premature. Hizel v. Hizel, 132 Colo. 379, 288 P.2d 354 (1955).

Since temporary orders are not in any way res judicata as to matters properly the subject of permanent order, a showing of change of circumstances is not an essential element for the trial court's consideration in its establishment of permanent alimony. MacReynolds v. MacReynolds, 29 Colo. App. 267, 482 P.2d 407 (1971).

Temporary orders do not grant "parenting time rights", as that term is specified in 14-10-129 (1)(b)(I), but simply provide for parenting time pending a final determination of permanent orders. In re Fickling, 100 P.3d 571 (Colo. App. 2004).

Temporary orders are not determinative of the permanent orders regarding allocation of parental responsibility or other matters. In re Lawson, 608 P.2d 378 (Colo. App. 1980); In re Fickling, 100 P.3d 571 (Colo. App. 2004).

There is no enforceable temporary order where the claim for spousal maintenance is based on a referee's recommendation and where the transcript is not signed and no separate order of the court is entered. In re Burke, 680 P.2d 1338 (Colo. App. 1984).

Formerly, an execution was authorized on an order for temporary alimony. Daniels v. Daniels, 9 Colo. 133, 10 P. 657 (1886); Paul v. Marty, 72 Colo. 399, 211 P. 667 (1922).

The temporary order of the "Beth Din", or its adoption in a prior proceeding for legal separation that was later dismissed, has no legal effect in a subsequent proceeding for dissolution of marriage between the same parties. In re Popack, 998 P.2d 464 (Colo. App. 2000).

Applying the intent of the Indian Child Welfare Act of 1978, court determined that trial court improperly found that mother had abandoned child for the purpose of granting a temporary allocation of parental responsibilities to caregiver. Although mother had signed document granting caregiver guardianship, the document did not suggest the placement was to be permanent, and the mother remained in continued contact with child. A parent's placement of a child in the care of another, even if prolonged, does not constitute abandonment if the parent remains in contact and demonstrates an intent to maintain the relationship. In re S.M.J.C., 262 P.3d 955 (Colo. App. 2011).

III. TEMPORARY INJUNCTIONS.

Restraining orders should not be issued in divorce actions except in circumstances of actual emergency, and where it is clearly established that grounds exist for granting such extraordinary remedy. Simpson v. Simpson, 151 Colo. 88, 376 P.2d 55 (1962).

It is an unusual situation in which an order on one spouse to refrain from transferring property is inadequate to afford needed protection to the other who seeks to maintain the status quo pending a hearing on notice. Simpson v. Simpson, 151 Colo. 88, 376 P.2d 55 (1962).

The right of the husband in a divorce action to manage his property and carry on his business in due course is fundamental and should not be interfered with or suspended by the issuance of ex parte restraining orders without notice upon persons with whom he transacts business, except upon a clear showing of emergency and a need therefor. Simpson v. Simpson, 151 Colo. 88, 376 P.2d 55 (1962).

The practice of bringing in third parties as defendants in a divorce action and issuing restraining orders against them without notice is not to be encouraged, it being only under extraordinary circumstances that such persons engaged in legitimate business transactions with one of the parties to the divorce action and not involved in their marital difficulties may be restrained or enjoined from continuing business activities with one of the spouses involved. Simpson v. Simpson, 151 Colo. 88, 376 P.2d 55 (1962).

Any reasons justifying permanent injunctive relief in dissolution of marriage proceeding must arise from factors independent of those with which the trial court is empowered to deal in a dissolution proceeding. In re Davis, 44 Colo. App. 355, 618 P.2d 692 (1980).