1. DIVORCE — Duty to Support — Non-custodial Parent — Order — Provide — Beyond Limitations — Void. Neither the establishment of an insurance policy in favor of a child, nor a duty to support beyond the parent's death, nor to support other children until the youngest child reaches majority, is within the obligation of support of a non-custodial parent in a divorce action, and an order to do so is in excess of the divorce court's jurisdiction and is void.
Opinion by JUDGE SMITH.
Pursuant to C.R.C.P. 22, plaintiff, Provident Mutual Life Insurance, filed an action in interpleader to determine which of several claiming parties have the right to the proceeds of an insurance policy issued by plaintiff upon the life of Robert W. McLeod, deceased. Gladys Beatrice McLeod, as mother and natural guardian of the children of the marriage between Robert and Gladys, claims the proceeds of the policy by virtue of a court order entered in a divorce proceeding which order directed the deceased to designate his minor children as beneficiaries of the policy in question. Beverly A. McLeod, wife of the deceased at the time of his death, claims the proceeds of the policy under a change of beneficiary executed by the deceased which made her primary beneficiary of the policy.
The trial court determined that the order requiring the deceased to designate his minor children as primary beneficiaries was void because the court in the divorce proceedings had no jurisdiction to enter such an order. Judgment was entered in favor of Beverly, the widow. Gladys appeals to this court on behalf of his minor children asserting that the trial court had the jurisdiction and authority to enter the order, or if not, that Beverly is estopped from collaterally attacking the order.
[1] In the divorce proceeding, plaintiff was ordered by the court to designate his children as beneficiaries of the life insurance policy until the youngest reached 21 years of age. In Laws v. Laws, 164 Colo. 80, 432 P.2d 632, the authority of the trial court in a divorce action to issue such an order was considered and it was determined that an award to this effect, which was not intended to serve as security under provision of C.R.S. 1963, 46-1-5(3), was outside the power of the trial court. The supreme court in that case adopted the policy that a non-custodial parent may not be compelled to assume any greater duty of support than that which is required by law. Neither the establishment of an insurance policy nor a duty to support after the father's death, nor to support other children until the youngest child reaches majority is included within this obligation of support. Therefore, an order to do so exceeds the authority of the trial court. Any portion of an order, judgment or decree which is entered in excess of the court's jurisdiction is void. Davidson Chevrolet, Inc. v. City County of Denver, 138 Colo. 171, 330 P.2d 1116; Arnold v. Roup, 61 Colo. 316, 157 P. 206.
Appellant urges that since decedent failed to appeal the order, his designated beneficiary, should be estopped from collaterally attacking that aspect of the divorce court judgment. The pertinent portion of the divorce court's order is not a decree determining rights in property subject to the jurisdiction of the court, and it does not vest or convey any rights under the insurance policy, nor does it impose duties upon the insurance company. It is an in personam order requiring a party to perform an act. Thus estoppel, if applicable at all, applies only to those subject to the order.
[2] Beverly's rights as a donee beneficiary do not derive from her relationship with the deceased, but are determined by the contract provisions and cannot be defeated by claiming that she is estopped to collaterally attack the divorce court order. The rights of the widow, Beverly, and the duties of the insurance company are not affected by a void order entered in a proceeding in which they were not parties.
Judgment affirmed.
JUDGE ENOCH AND JUDGE PIERCE concur.