Bieler v. Bieler, 17429
| Decision Date | 12 July 1954 |
| Docket Number | No. 17429,17429 |
| Citation | 130 Colo. 17,272 P.2d 636 |
| Parties | BIELER v. BIELER |
| Court | Colorado Supreme Court |
F. W. Harding, G. E. Boatright, Denver, for plaintiff in error.
Benjamin E. Sweet, Denver, for defendant in error.
This is an action for divorce brought by the wife on the ground of cruelty. While there was included a prayer for temporary alimony and attorney fees, the complaint alleged that plaintiff was then gainfully employed. However, some four months later, plaintiff filed her affidavit setting forth her assets, income and liabilities, and alleging that she was then unemployed and unable for some time to be engaged in any gainful employment, because of her physical condition and advice of physicians. Thereafter, upon hearing plaintiff's application, the court awarded her $55 per week, together with $200 for temporary attorney fees. Such award is here challenged, upon the grounds: (1) that pleadings do not entitle plaintiff to such relief, and (2) that the record shows that she is not destitute of the means of subsistence to entitle her to such relief.
As to the first ground: Right to temporary alimony arises out of the legal obligation of the husband to support the wife. Such obligation may exist at the time of the filing of the complaint or it may arise afterwards. It is an ancillary matter when sought to be enforced in a divorce proceeding and the right of enforcement does not depend necessarily upon the situation of the parties at the time of the filing of the suit, but upon the condition at the time it is sought. Therefore, the pleadings to be considered include the application papers as well as the complaint in the action and, under our notice form of pleadings, it is not necessary to set out the facts upon which the application is based.
As to the second ground: The evidence before the court showed that plaintiff had remained living in the little family home in which she owned a one-half interest; that in addition to such interest and furniture, household goods, clothing, jewelry and a Ford car, she owned $2,500 in government bonds and approximately $1,000 in savings account and bank account, and that her mother, who lived with her, paid her from $55 to $75 per month. Against this she showed debts in excess of $600, all apparently for care of herself and property.
The record showed that the husband had assets other than furniture and tools totaling more than $75,000, largely consisting of rental...
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