14-10-118. Enforcement of orders.
Statute text
(1) Repealed.
(2) The court has the power to require security to be given to insure enforcement of its orders, in addition to other methods of enforcing court orders prescribed by statute or by the Colorado rules of civil procedure on or after July 6, 1973.
History
Source: L. 71: R&RE, p. 528, 1. C.R.S. 1963: 46-1-18. L. 73: p. 554, 9. L. 81: (1) amended, p. 909, 3, effective June 8. L. 82: (1) amended, p. 280, 3, effective April 7. L. 87: (1) amended, p. 595, 25, effective July 10. L. 92: (1) amended, p. 577, 5, effective July 1. L. 93: (1) amended, p. 1871, 5, effective June 6. L. 94: (1) amended, p. 1252, 6, effective July 1. L. 96: (1) repealed, p. 598, 8, effective July 1.
Annotations
ANNOTATION
Annotations
Analysis
I. General Consideration.
II. Security for Enforcement of Order.
III. Enforcement by Execution.
IV. Enforcement by Contempt.
Law reviews. For article, "The Enforcement of Divorce Decrees in Colorado", see 21 Rocky Mt. L. Rev. 364 (1949).
Annotator's note. Since 14-10-118 is similar to repealed 46-1-5 (3), C.R.S. 1963, 46-1-5, CRS 53, CSA, C. 56, 8, and laws antecedent thereto, relevant cases construing those provisions have been included in the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 early law allowed the court to require husband to give security and permitted enforcement of decree in any manner consistent with rules and practice of court. Johnson v. Johnson, 22 Colo. 20, 43 P. 130 (1895).
Section provides only for issuance of temporary injunction. In re Davis, 44 Colo. App. 355, 618 P.2d 692 (1980).
C.R.C.P. 65 (h) grants authority to courts in dissolution proceedings to make prohibitive or mandatory orders as may be just. In re Davis, 44 Colo. App. 355, 618 P.2d 692 (1980).
Order to direct employer to withhold payments. This section does not preclude an order to the person obligated to pay support or maintenance to direct an employer to withhold child support or maintenance payments as they become due. In re McCue, 645 P.2d 854 (Colo. App. 1982).
Enforcement of agreement which did not specify dollar amount for child support is not modification of agreement. Agreement established duty on father to pay child support and it is within the discretion of the court to determine a reasonably necessary dollar amount. In re Meisner, 807 P.2d 1205 (Colo. App. 1990).
Attorney fees. An award of attorney fees may not be enforced by an assignment under this section. In re McCue, 645 P.2d 854 (Colo. App. 1982).
II. SECURITY FOR ENFORCEMENT OF ORDER.
The general assembly authorized a court to require security for the payment of alimony. Brown v. Brown, 131 Colo. 467, 283 P.2d 951 (1955).
Security required by court must be reasonable in both amount and duration. In re Jaeger, 883 P.2d 577 (Colo. App. 1994).
If the amount ordered as security is greatly in excess of the amount actually owed, it is not security, but is confiscatory. Brown v. Brown, 131 Colo. 467, 283 P.2d 951 (1955); In re Jaeger, 883 P.2d 577 (Colo. App. 1994).
It was held that the supreme court was fortified in limiting the court's authority to require security for the payment of alimony by reason of the fact that with respect to orders for the payment of sums required for the support and maintenance and education of the minor children of the parties, the general assembly had wisely enacted 14-6-101 which made it a felony for a husband to neglect, fail or refuse to provide reasonable support and maintenance for his minor children under the age of 16 years, and a father who thus neglected to discharge his natural, as well as his statutory, duty to his children "shall be deemed guilty of a felony", and may be imprisoned for so doing unless he provided a bond conditioned upon the support of such children. Brown v. Brown, 131 Colo. 467, 283 P.2d 951 (1955).
The writ of ne exeat was not a form of security for the payment of alimony within the meaning of this section. Price v. Price, 80 Colo. 158, 249 P. 648 (1926).
Property lien authorized. A court may impose a lien on a party's property in order to enforce an agreement where the party has threatened to dispose of the property and put himself beyond the court's jurisdiction. In re Valley, 633 P.2d 1104 (Colo. App. 1981).
Amount and duration of security held unreasonable where court required replacement of any security used for payment of maintenance, and amount of security equaled the amount of maintenance awarded, and where there was no competent evidence supporting the amount required to be set aside as security for the payment of child support and health insurance. In re Jaeger, 883 P.2d 577 (Colo. App. 1994).
III. ENFORCEMENT BY EXECUTION.
Mature installments of alimony under a divorce decree were final judgments, the payment of which the court could enforce by execution or imprisonment. Daniels v. Daniels, 9 Colo. 133, 10 P. 657 (1886); Paul v. Marty, 72 Colo. 399, 211 P. 667 (1922); Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926); Burke v. Burke, 127 Colo. 257, 255 P.2d 740 (1953); Beardshear v. Beardshear, 143 Colo. 293, 352 P.2d 969 (1960).
Child support payment becomes money judgment when it matures. A child support payment under a decree for dissolution of marriage becomes a money judgment when it matures and may be enforced as other judgments without further action by the court. In re McCue, 645 P.2d 854 (Colo. App. 1982).
The judgments were enforceable during the entire period of the statute of limitations. Hauck v. Schuck, 143 Colo. 324, 353 P.2d 79 (1960).
Action by a court, in the form of an order of entry of judgment, is a mandatory prerequisite to enforcement of child support obligations by means other than remedial contempt proceedings. People in Interest of G.S., 678 P.2d 1033 (Colo. App. 1983).
A husband was not prejudiced by the entering of a judgment for the correct total amount due under a divorce decree, as each installment which matures under a decree which had not been modified became a judgment debt similar to any other judgment for money. Jenner v. Jenner, 138 Colo. 149, 330 P.2d 544 (1958).
A trial court had power, without previous notice to a husband, to enter judgment for any total arrears so that execution might issue thereon and the proceedings available to any judgment creditor could thereby be made available to the wife. Jenner v. Jenner, 138 Colo. 149, 330 P.2d 544 (1958).
The trial court exceeded its jurisdiction in an order limiting the wife's right to collect her judgment on an arrearage, because the judgment entered was no different than any other money judgment, and the wife was entitled to levy execution on her judgment in the same manner as any other judgment creditor was entitled to collect on a judgment, and no authority empowered the trial court to enter an order authorizing a judgment creditor to parcel out payments in liquidating a judgment. Green v. Green, 168 Colo. 303, 451 P.2d 282 (1969).
Each installment of child support maturing under a decree which had not been modified became a judgment debt similar to any other judgment for money and retroactive modifications thereof could not be effected. Jenner v. Jenner, 138 Colo. 149, 330 P.2d 544 (1958); Drazich v. Drazich, 153 Colo. 218, 385 P.2d 259 (1963); Talbot v. Talbot, 155 Colo. 350, 394 P.2d 607 (1964).
Since past due installments for support money under a valid order constituted a debt and were in and of themselves judgment, a trial court had no power or authority to cancel such payments. Carey v. Carey, 29 Colo. App. 328, 486 P.2d 38 (1971).
Since accrued installments of support or alimony were final judgments, the appropriate statute of limitations was that which pertained to judgments. Hauck v. Schuck, 143 Colo. 324, 353 P.2d 79 (1960).
The defense of laches was not applicable in an action to enforce accrued child support payments ordered in a divorce action; it was applicable only where the attempted enforcement was by contempt proceedings. Jenner v. Jenner, 138 Colo. 149, 330 P.2d 544 (1958); Hauck v. Schuck, 143 Colo. 324, 353 P.2d 79 (1960); Carey v. Carey, 29 Colo. App. 328, 486 P.2d 38 (1971).
A husband in default in the payment of support money was not entitled to notice of the entry of a judgment thereon. Jenner v. Jenner, 138 Colo. 149, 330 P.2d 544 (1958).
Assignment of wages is proper. An assignment of wages to satisfy a judgment for child support arrearages is proper. In re McCue, 645 P.2d 854 (Colo. App. 1982).
Order is analogous to garnishment. An order entered pursuant to subsection (1) is analogous to a garnishment and should be governed by applicable limitations on garnishment. In re McCue, 645 P.2d 854 (Colo. App. 1982).
A court may exercise its power of contempt to enforce orders entered in a dissolution of marriage proceeding. Gonzales v. District Court, 629 P.2d 1074 (Colo. 1981).
Contempt not separate proceeding. Contempt for failure to comply with the court's orders is not a separate proceeding but a continuance of the dissolution action. Gonzales v. District Court, 629 P.2d 1074 (Colo. 1981).
The power to punish for contempt should be used with caution after due deliberation, and only when necessary to prevent actual, direct obstruction of, or interference with, the administration of justice. Engleman v. Engleman, 145 Colo. 299, 358 P.2d 864 (1961).
When considering whether a party is in contempt for failure to pay maintenance, a court cannot base a finding that the party has the present ability to pay solely on a conclusion that the party is voluntarily underemployed. Past or potential future ability to pay is not the proper legal question. The court can, however, consider the party's voluntary underemployment as evidence of a willful violation of the support order for punitive purposes. In re Sheehan, 2022 COA 29, 511 P.3d 708.
Absent any procedural attempt to correct an order for support payments under this section, based upon its being founded in mistake, or absent action designed to seek modification of the order, the trial court could only determine whether the husband was in contempt for failure to comply with the order. Lopez v. Lopez, 148 Colo. 404, 366 P.2d 373 (1961).
Moreover, a defendant could not be held in contempt for failure to pay alimony where it clearly appeared that he was unable to perform the acts required of him by the support order. Lopez v. Lopez, 148 Colo. 404, 366 P.2d 373 (1961).
A defendant could not be imprisoned for failure to pay alimony where it clearly and satisfactorily appeared that he was absolutely unable to perform the acts required of him at the time the order of commitment was made. Lopez v. Lopez, 148 Colo. 404, 366 P.2d 373 (1961).
Where a divorced wife for a long period of time supported the minor child of herself and divorced husband without receiving or claiming the alimony adjudged her for its support, there being no sufficient cause shown for her delay in attempting to enforce payment, the doctrine of laches applied, and a judgment of contempt against defendant for failure to pay the alimony was reversed. Price v. Price, 80 Colo. 158, 249 P. 648 (1926).
The contention of defendant that an order abating the proceedings until he complied with an order of court for the payment of alimony deprived him of his right to make a defense, and that imprisonment for failure to comply with the order was in violation of his constitutional rights, was overruled. Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926).