Copyright 1997 Gregg A. Greenstein, Esq., Originally published in The Colorado Lawyer, May 1997
Divorce issues may impact persons other than the parties and their children. For example, parents of the parties, corporations and other third parties involved with marital assets may be affected by the divorce. This article analyzes the usage of joinder in dissolution of marriage cases.
The Colorado Rules of Civil Procedure apply to all proceedings under the Uniform Dissolution of Marriage Act (“UDMA”) except as otherwise specifically provided in the UDMA. The UDMA does not specifically prohibit joinder of parties in divorce actions, making joinder of parties other than the husband and wife available in divorce cases.
Mandatory and Permissive Joiner Rules Mandatory Joinder
There are two types of joinder permitted by the Rules of Civil Procedure: mandatory and permissive. Mandatory joinder is governed by Rule 19 of the Colorado Rules of Civil Procedure. Joinder is mandatory when: (1) complete relief cannot be accorded among those already parties; or (2) a third person claims an interest relating to the subject matter of the action and is so situated that the disposition of the action in his absence may impede or impair the absent person’s ability to protect his interest or leave the remaining parties subject to multiple or inconsistent obligations.
If a necessary person cannot be joined in the divorce action (e.g. an out of state party over whom service of process cannot be obtained), the court must determine whether that person is indispensable. If the person is indispensable, the action may be dismissed, or the court may exercise its power to shape relief among the husband and wife to avoid prejudice to a third party. It is not practical to dismiss a divorce case simply because some third person cannot be joined to resolve an issue.
Pursuant to Rule 19, a pleading asserting a claim for relief shall state the names of any necessary persons known to the pleader who are not joined, and the reasons why they are not joined.
A claim for failure to join a necessary or indispensable party may be raised by a Rule 12 motion or in the response to the petition for dissolution of marriage. A dismissal for failure to join a necessary party does not operate as an adjudication on the merits.
Permissive joinder is governed by Rule 20 of the Colorado Rules of Civil Procedure. Persons asserting a right to relief arising out of the same transaction or occurrence may join as plaintiffs, if any questions of law or fact common to all plaintiffs will arise in the action. Persons may be joined as defendants if there is asserted against them any right to relief arising out of the same transaction or occurrence, and if any question of law or fact common to all defendants will arise in the action. In a permissive joinder situation, separate trials may be ordered.
Misjoinder of Parties
Misjoinder of parties is not a basis for dismissal of a divorce case. Parties may be added or dropped at any stage of the action, and claims against a party may be severed and proceeded with separately.
Use of Joinder In Divorce Actions
No reported Colorado divorce cases deal with Rules 19 or 20, C.R.C.P. However, absence of reported decisions does not mean that Rules 19 and 20 do not apply in Colorado divorce cases. Application of Rules 19 and 20 to some common divorce issues demonstrates that additional parties may need to be joined.
Situations Where Joinder Is Appropriate
Real estate title issues arise in divorce cases. For example, suppose the wife’s parents take title to and obtain financing for a house for husband and wife to live in. Husband and wife agree to pay the mortgage and wife’s parents immediately provide husband and wife with a quit claim deed. After the deed is recorded, the wife’s parents claim that delivery was not complete because the transfer was not intended to be effective until the parents’ death. Although husband and wife maintain for years that it was their house, wife changes her position after filing for a divorce from husband. Wife now claims that the house is really her parents’ house. Husband disagrees, and wants the house sold to pay tax debts.
The divorce trial judge must determine who owns the house for purposes of making an equitable distribution and determining maintenance issues. However, since the wife’s parents claim an interest in the house, they may be necessary parties and may need to be joined in the case.
At least one reported divorce case demonstrates the need for joinder of persons who may have a title interest in real estate. In In re Marriage of Weydert, a law firm filed a notice of attorney’s lien which was reduced to judgment. The trial court ordered that a note payable by the parties to the wife’s parents should be paid from the proceeds of the sale of the divorced parties’ residence. The law firm protested, arguing that its lien had priority.
The court of appeals agreed with the law firm, noting that a court may not adjudicate the rights of persons not actually or constructively before it. Because the parents were not in any way made parties to the divorce action, the trial court had no authority to adjudicate the parents’ rights, if any, in the property. Notwithstanding the Weydert decision, the need for joinder may be eliminated in a divorce case title dispute if a separate quiet title action is filed in which the title claimants are parties.
Parenting time issues in divorce cases may involve third persons who should be joined. For example, parenting time may be permitted only under supervision by a person deemed suitable by the Court. If a family member, friend or other third person (not otherwise a party to the divorce case) is chosen as the parenting time supervisor, that supervisor may need to be joined as a party to ensure that the supervisor carries out appropriate duties and is subject to the directive and contempt powers of the court.
Joint bank account issues may create a need for joinder. For example, while married to his wife, the husband maintains a joint bank account with his elderly mother. The bank account is maintained for the benefit of the mother, but it may fall within the definition of marital property. The mother may need to be joined as a party in the divorce case so that the bank account beneficial ownership issues can be dealt with in one action.
Fraudulent conveyance issues also arise in divorce cases. For example, a husband in a long term marriage knows that he is about to be served with divorce papers. The wife has no income and is a likely candidate for a substantial property distribution and/or spousal maintenance award. The husband transfers assets held in his name to a third party. The transfer satisfies the requirements of the fraudulent conveyance statute.
The wife could sue the husband and the transferee in a separate action for the fraudulent conveyance, or the wife could move to join the third party transferee in the divorce case. Her failure to do either may result in the husband seeking dismissal of the fraudulent conveyance claim based on failure to join a necessary party in accordance with Rule 19.
Divorce cases from other jurisdictions support third parties being joined in divorce cases. In Solomon v. Solomon, the New York appellate court allowed the wife to add her husband’s adult sons as parties in the divorce action. The wife alleged that her husband had transferred marital assets to his sons. The appellate court stated that a trial court may, on its own motion, or on the motion of any party, determine that there is a nonjoinder of necessary parties and permit or require joinder of those persons.
In Feinstein v. Feinstein, wife sued the husband for a divorce, naming the husband’s daughter (Karen) and son (David) as additional defendants, alleging that title, possession and/or control of marital property was in Karen’s and David’s names, and further, husband asserted that property acquired during the marriage belonged to his children. After the trial commenced, Karen’s husband filed a motion to intervene on his behalf and on behalf of his children (husband’s grandchildren). Karen and David filed motions for mistrial and to join Karen’s husband and the grandchildren as parties. The trial court denied both the mistrial and the joinder motions.
The Feinstein court recognized that failure to join indispensable parties in a divorce case could be raised by one or all of the appellants, all parties below, or by the court of appeals sua sponte. Analyzing Missouri’s joinder rules, the appellate court affirmed the trial court’s decision declining joinder. The decision is significant because it confirms that joinder may be permitted or necessary in a divorce case.
Restrictions on Joinder
Many marriages end because of extramarital affairs. Colorado law prohibits actions for alienation of affection and seduction. Thus, the non-marital partner is not a necessary party, and it is unlawful to join that person as a party. However, the non-marital partner may be subject to other tort claims by the non-cheating spouse. Furthermore, the mere naming of a corespondent by an adverse party is a crime. Additionally, an attorney asking questions to elicit the name of a corespondent may be guilty of contempt.
When a child is represented by a guardian ad litem (GAL), it is improper for the child to be joined as a party in a divorce case which involves custody issues. In In re the Marriage of Hartley, a child sought to intervene in divorce case involving his custody. A GAL had already been appointed to represent the child. The court determined that the child was not an interested party capable of intervening because the child was already fully represented in the proceeding. If a child represented by a GAL in a divorce case has no right to intervene, it follows that the represented child is not a necessary party regarding custody.
Dismissal for Nonjoinder
The court has the power to determine that a person not joined is indispensable and that in the absence of that joinder, the action should be dismissed. Divorce cases may involve issues of custody, parenting time, child support, property division, maintenance and attorney fees. It is unlikely that a court would dismiss the entire divorce case, including all of the ancillary issues regarding the children’s welfare, simply because a third party was not joined in the action to deal with a property distribution issue. Furthermore, courts can shape their decisions so that the non-parties’ rights are not adversely affected by the divorce court’s decision.
Although some case law supports the idea of necessary joinder in Colorado divorce cases, it should be noted that no reported Colorado decisions directly confirm that the concept of necessary or permissive joinder extends to divorce cases. In fact, the rights of joined third parties may be inconsistent with the rights of the parties and the duties of the court in divorce cases. For example, one of the purposes of the UDMA is to promote the amicable settlement of disputes that have arisen between the parties to a marriage. However, a litigant joined in a divorce case to deal with a title issue may be more interested in having a judicial resolution of an issue, rather than reaching an “amicable settlement.” Furthermore, a third party litigant may be entitled to a jury trial on the issue affecting him, yet divorce trials are not heard before a jury.
Determining who should be joined at the early stages of the case may help ensure the finality of the judgment in a divorce case. Although no case law specifically supports the joinder concept in divorce cases, joinder in divorce, or separate litigation involving persons affected by the determination of issues within a divorce case, should be considered by the practitioner as potential parties in the initial stages of every divorce case.