In re the Marriage of Farr

Colorado Court of Appeals · Family Law

Family LawInvalidity of MarriageFraudAppellate JurisdictionAttorney Feesinvalid marriagefraudulent inducementessence of the marriage

Facts

The parties dissolved their first marriage in 1999, remarried in 2004, and in 2007 husband sought dissolution of the second marriage. Wife asked the court instead to declare the remarriage invalid, alleging she agreed to remarry only because husband represented that he had a terminal illness and would die soon. The trial court found wife more credible, found that she relied on husband's representation that he suffered from myelodysplastic syndrome and that his death was imminent, and found the representation fraudulent. After the invalidity ruling, the parties stipulated in permanent orders that each would pay his or her own attorney fees.

Issue

Was husband's appeal timely when filed within forty-five days after permanent orders rather than within forty-five days after the decree of invalidity? Did the trial court err by using a preponderance standard, by finding fraudulent inducement sufficient to invalidate the marriage, and by refusing to award husband attorney fees despite the parties' stipulation?

Rule

In a marriage-invalidity action, where permanent orders remain to be entered and the decree has not been certified under C.R.C.P. 54(b), the decree is not immediately appealable and the notice of appeal is timely if filed within forty-five days after final permanent orders. Under section 13-25-127(1), civil claims seeking to avoid a transaction on equitable grounds including fraud are proved by a preponderance of the evidence, including a petition to invalidate a marriage under section 14-10-111(1)(d). A marriage is invalid under section 14-10-111(1)(d) when one party entered it in reliance on the other party's fraudulent act or representation and that act or representation goes to the essence of the marriage.

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In Denver, Nina Cortez petitioned to have her marriage to Evan Mercer declared invalid for fraud. The trial court entered a decree of invalidity but left maintenance and property allocation for a later permanent-orders hearing, and the court did not certify the decree under Rule 54(b). Evan filed a notice of appeal 30 days after the later permanent orders were entered.

Is Evan's appeal timely?

Explanation. A decree declaring a marriage invalid is treated like a dissolution decree for purposes of permanent orders. If property, maintenance, or other permanent orders remain unresolved, and the decree was not certified as final under Rule 54(b), it is not yet appealable. The notice of appeal is timely if filed within the prescribed period after the later permanent orders that finally resolve all issues. (Derived from In re the Marriage of Farr (n.d.).)