Diegel v. Diegel

• Decision Date: 07 May 1923
• Docket Number: 10633.
• Citation: 215 P. 143,73 Colo. 330
• Court: Colorado Supreme Court
• Parties: DIEGEL v. DIEGEL.

215 P. 143

73 Colo. 330

DIEGEL v. DIEGEL.

No. 10633.

Supreme Court of Colorado

May 7, 1923

Department 3.

Error to District Court, City and County of Denver; Clarence J Morley, Judge.

Action by Helen Diegel against W. Maynard Diegel. Decree for divorce and money judgment for plaintiff. Defendant's petition to modify the judgment was dismissed, and he brings error.

Writ dismissed.

Barker Lindstrom & Webster, of Denver, for plaintiff in error.

Thomas E. Watters and Percy S. Morris, both of Denver, for defendant in error.

CAMPBELL J.

In an action for divorce in the district court of the city and county of Denver, Helen Diegel, as plaintiff secured a decree of divorce from W. Maynard Diegel. The decree was in the usual form dissolving the marriage relation, and included a money judgment against the defendant for $1,090, to be paid in monthly installments as specifically provided by the terms of the decree. This money award was based upon an agreement of the parties, made out of court and which both of them asked to be included in the decree. This agreement embodied not only the costs and expenses of the divorce action, but was a settlement, and in full satisfaction, of all property rights and other matters which either party asserted against the other. Thereafter the plaintiff remarried. Under section 7 of our Divorce Act of 1917 (C. L. 1921, § 5599), this remarriage relieved the former husband, the defendant herein, from the further payment of alimony to the plaintiff. The defendant thereafter filed a petition in the district court in the divorce action for a modification of the decree by vacating the provision therein of a money judgment. The district court refused to grant the relief and dismissed the petition. The defendant, the former husband, has sued out a writ of error from this court to review the judgment and order of the district court dismissing his petition to modify, and defendant in error moves to dismiss the writ.

The ground of the motion is that the plaintiff in error, being the party to the action against whom the decree of divorce was granted, did not file within five days from the day on which such dismissal order was granted, or at all, with the clerk of the district court, a written notice that he will apply within 60 days from the date of said order to the Supreme Court for a writ of error to review the same, which section 12 of the Divorce Act makes imperative. It would seem from the decision of this court in Chamberlain v. Chamberlain, 66 Colo. 562, 185 P. 354, that this motion was well taken. Plaintiff in error, however, vigorously insists, notwithstanding the decision in the Chamberlain Case, that section 12 (C. L. 1921, § 5605) should be so construed as to make two classes of decrees or judgments under this act, to one of which the requirement of notice should, and to the other class it should not, apply. His chief argument seems to be, as applied to the concrete facts of this case, if such a notice must be given within five days from the day on which the final decree of divorce was granted, that it would be impossible to comply therewith, for the remarriage took place more than five days after the date of the original decree.

The statute will bear no such interpretation. The fundamental error in the argument is that it assumes that the one and only final decree in a divorce action is not a single decree but consists of several separate and distinct...