Abrams v. Abrams, 16359

• Decision Date: 28 May 1951
• Docket Number: No. 16359,16359
• Parties: ABRAMS v. ABRAMS.
• Court: Colorado Supreme Court

Page 742

232 P.2d 742

124 Colo. 1

ABRAMS v. ABRAMS.

No. 16359.

Supreme Court of Colorado, in Department.

May 28, 1951.

Gordon L. Allott, George A. Wollbrinck, St. George Gordon, and Barbara Lee, all of Lamar, for plaintiff in error.

Todd & Statler, Lamer, for defendant in error.

HOLLAND, Justice.

This action is to review a judgment entered in defendant in error's favor on a special trial to the court concerning the property rights of plaintiff and defendant after final decree of divorce, such hearing being specially reserved in the interlocutory decree of divorce.

The parties hereto were married in Missouri in 1944 and shortly thereafter they moved to a farming community in Bent county, Colorado. In the early part of 1945, plaintiff in error, who will herein be referred to as defendant, leased 800 acres of land twelve miles away in Kiowa county. Plaintiff, Myrtle Abrams, had sold a small property in Missouri for approximately $4,000. She advanced certain sums to her husband, the defendant, for the purchase of household furnishings, and in October of that year she insisted on a settlement for the sums she had advanced and immediately thereafter instituted a divorce suit which was dismissed upon reconciliation of the parties. Defendant was under an order of court for the payment of $25.00 per month for the support of his children, who were in the custody of his divorced wife in Denver. Shortly after the reconciliation, and about Christmas time of 1945, defendant told plaintiff that he had contacted the owner of the land he had been leasing, with reference to its purchase, and he asked plaintiff if she would be willing to join him in paying the purchase price amounting to $4,000 payable $1,000 down and $1,000 per year with 4 per cent per annum on the unpaid balance. He told plaintiff that he did not have sufficient funds to make the down payment and some necessary improvements to make the place livable. They agreed, and both entered into a written contract with the owner for the purchase on the above-mentioned terms. Plaintiff and defendant agreed between themselves that each would make one-half of the down payment and one-half of the subsequent payments, including the interest. At that time defendant was delinquent in his payments for the support of his children, and, because of this delinquency, in May, 1946, his former wife sent the children to him. This apparently precipitated trouble between the parties hereto, and plaintiff, the wife, instituted another action for divorce and for alimony and property settlement. An amended complaint was filed setting up more details of the property interests, to which answer and crossclaim was filed. Trial was had to a jury on the question of cruelty, resulting in a verdict in defendant's favor on March 21, 1947. Interlocutory decree was entered April 22, 1947, with reservation for further hearing on the matters pertaining to property rights. This interlocutory decree of divorce became final after the expiration of six months from its date. On December 2, 1948 the question as to the property rights came on for hearing.

At the opening of the trial a stipulation between counsel was read into the record and is as follows:

'Mr. Todd: * * * Well, I shall interpose here,--That about the time this divorce action was filed, right afterwards, another action was filed by plaintiff for partition of this land. And Mr. Allott and I--Mr. Allott representing the defendant--I believe we agree that we will consent to this Court in this trial, having full jurisdiction of the division of the land by partition, or as the Court may see fit. Is that correct, Mr. Allott?

'Mr. Allott: Yes, that is correct.'

After hearing testimony for about four days, the trial court entered painstaking and comprehensive findings and judgment thereon in favor of plaintiff wife in the sum of $4,807.94. Motion for new trial was filed, and, pursuant to a motion to strike, was stricken from the files.

It is contended by counsel for plaintiff in error, that this case should be controlled by our statutes which relate to the partition of land, and it further is contended that the decree of the trial court is in the nature of a partition decree. We do not accept that particular theory in this case. Further, counsel for plaintiff in error seems not to be embarrassed by the stipulation entered into at the opening of the trial, nor by his answer filed in the partition suit. In the strict sense, the pleadings in the partition suit are not before us; however, a portion of the answer therein is set out in defendant in error's brief, to which we find no denial by plaintiff in error. As it relates to the question under immediate discussion, that part of the answer in the partition suit is as follows: 'That the above entitled court lacks jurisdiction over the subject matter of this action and as grounds therefor alleges that the disposition of said property was put in issue by the plaintiff in a cause in this court entitled 'Myrtle Abrams v. Harry R. Abrams' and the rights, interest and claims of both the plaintiff, Myrtle Abrams and the defendant Harry R. Abrams, have already been put in issue in said cause before the district court of Kiowa County.'

This quoted allegation refers to this divorce action which was pending prior to...