Bell v. Bell, 20679

• Decision Date: 29 March 1965
• Docket Number: No. 20679,20679
• Citation: 156 Colo. 513,400 P.2d 440
• Parties: Carolyn Elizabeth BELL, Plaintiff in Error, v. Allen BELL, Defendant in Error.
• Court: Colorado Supreme Court

Page 440

400 P.2d 440

156 Colo. 513

Carolyn Elizabeth BELL, Plaintiff in Error, v. Allen BELL, Defendant in Error.

No. 20679.

Supreme Court of Colorado, In Department.

March 29, 1965.

Dickerson, Morrissey & Dwyer, Denver, for plaintiff in error.

Graham Susman, Hyman D. Landy, Denver, for defendant in error.

McWILLIAMS, Justice.

This writ of error presents the second chapter in the rather protracted litigation stemming from the divorce of Carolyn and Allen Bell. See Bell v. Bell, 150 Colo. 174, 371 P.2d 773, where the matter was considered by us for the first time.

Carolyn and Allen were married in 1947 and in 1960 Allen was granted a non-contested decree of divorce from Carolyn. In the decree the trial court reserved for future determination matters concerning division of property, attorneys' fees, and the like. In due time hearing was held regarding a division of the property belonging to the parties and in connection therewith the trial court entered the following order:

1. The residence at 304 Ivanhoe St. Denver, formerly occupied by the parties, together with all furniture and household goods located therein, was awarded Carolyn;

2. real estate commonly described as 2415 Champa Street, Denver, and other realty located at 2425-2427 Champa Street was also awarded Carolyn;

3. an encumbrance in the amount of $27,000 on the Ivanhoe property and another encumbrance in the amount of $23,100 on the aforementioned Champa Street properties were to be paid by Allen within 6 months;

4. real estate commonly described as 2403 Champa Street, in Denver, was awarded Allen;

5. the business known as Bell Publications, as well as another known as the Golden Bell Press, were awarded Allen; and

6. the real estate commonly described as 2400 Curtis Street, Denver, where Allen conducted his business operations, was also awarded Allen.

Being dissatisfied with this division of their property, Allen by writ of error sought and obtained a review thereof. See, Bell v. Bell, supra, where we held that this division of property was in fact 'manifestly unfair, inequitable and unconscionable, and amounts to such an abuse of discretion on the part of the trial court that it must be vacated and set aside.'

Thereafter a second hearing relating to a division of property was held. After much testimony the trial court entered a very detailed order which, in essence, divided the property in the following manner:

1. the residence at 304 Ivanhoe Street was awarded Carolyn, with the direction that she, not Allen, should pay a $7,000 encumbrance thereon, with Allen directed to pay a second encumbrance thereon in the amount of $20,000; and

2. all of the remaining property of the parties, i. e. the 3 parcels of realty on Champa Street plus the Bell Publications and the Golden Bell Press plus the realty at 2400 Curtis Street were awarded Allen.

By the present writ of error Carolyn, being dissatisfied with this division of their property, now seeks reversal of this judgment, and as ground therefor contends--as did Allen in the prior proceeding--that the order is 'manifestly unfair, inequitable and unconscionable' and should not be permitted to stand. We agree with Carolyn's appraisal of the division of property as made on the second hearing of this matter. Accordingly we must reverse this judgment and remand the cause for a third and, what we optimistically hope will be, a last hearing in connection therewith.

There is little dispute as to the general law which governs this controversy. C.R.S. '53, 46-1-5 (1960 Perm.Supp.) declares that 'the court may make such orders, if any, as the circumstances of the case warrant relative to division of property, in such proportion as may be fair and equitable.' (Emphasis supplied.) The matter of division of property between divorced parties is traditionally a matter which lies within the sound discretion of the trial court, and in the absence of a clear showing of an abuse of this discretion this Court, on review, will not set aside or vacate the findings of the trial court. A finding that a party to a marriage was at fault will not, of itself, bar an equitable division of property. It is only one of the elements to be taken into consideration, and in the absence of moral delinquency or a complete disregard of the marriage vows individual fault should not act as an obstacle to an equitable division of property. Nor is it a prerequisite to an equitable division of property that the wife show that she had contributed by funds or efforts to the original acquisition of the specific property awarded to her. See, Bell v. Bell, supra; Shapiro v. Shapiro, 115 Colo. 505, 176 P.2d 363; Reap v. Reap, 142 Colo. 354, 350 P.2d 1063; Walden v. Walden, 147 Colo. 221, 363 P.2d 168; and Liggett v. Liggett, 152 Colo. 110, 380 P.2d 673.

Some very limited background information regarding the parties, in addition to that already set forth in Bell v. Bell, supra, is deemed advisable to an adequate understanding of our definite conclusion that this is an instance where the trial court abused its discretion. Allen and Carolyn first met in 1945, Allen then being about 30 years of age and in business for himself in Denver and Carolyn being 17 and a high school student. Very shortly thereafter Carolyn, while still in high school, went to work for Allen on a part-time basis and upon her graduation from high school in June 1946, she became employed by Allen on a full-time basis. The two were married in June 1947, thereafter separated and reconciled in 1956, and finally separated and were then divorced in 1960. For virtually the entire period of this marriage, save and except when she was enceinte on two occasions, Carolyn worked as a bookkeeper and secretary for her husband in the business known as Bell Publications. Some of this work was admittedly only part-time, as she also had duties in the Bell household. During this period of employment Carolyn was paid a salary which was ultimately used for family expenses, as well as for Carolyn's use.

The trial court found that as of 1960 the Bells' 'net worth' was $145,000. It is Carolyn's basic position that of this $145,000 she was only awarded a $10,000 equity in the family residence. This residence, together with the furnishings, was valued at about $40,000, but was subject...