Doty v. Doty

• Decision Date: 14 February 1939
• Docket Number: 14274.
• Citation: 103 Colo. 543,88 P.2d 573
• Parties: DOTY v. DOTY.
• Court: Colorado Supreme Court

88 P.2d 573

103 Colo. 543

DOTY v. DOTY.

No. 14274.

Supreme Court of Colorado, En Banc.

February 14, 1939

Rehearing Denied March 27, 1939.

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Action for divorce by Alice May Doty against Paul Bryan Doty, who filed a cross-complaint for divorce. Plaintiff's motion to dismiss the action after entry of an interlocutory divorce decree on a jury's verdict for her was denied and final judgment entered in her favor, and she brings error.

Judgment reversed and cause remanded with directions.

FRANCIS E. BOUCK, BAKKE, and KNOUS, JJ., dissenting.

S. R Robertson and O. Otto Moore, both of Denver, for plaintiff in error.

Henley A. Calvert, of Denver, for defendant in error.

YOUNG Justice.

The parties will be herein designated as they appeared in the trial court. Plaintiff, a wife, instituted an action for separate maintenance against the defendant, her husband charging cruelty. He denied the charge and filed a cross complaint for divorce alleging cruelty and that plaintiff had a husband living at the time of the marriage. On the trial the plaintiff with the consent of the court, changed the prayer of her complaint by asking for a divorce and alimony. The parties were married in 1919 and lived together as husband and wife until 1934. They had no children. The jury found for the plaintiff on her complaint and against the defendant on his cross complaint. An interlocutory decree of divorce was entered on the verdict. After the entry of the interlocutory decree and long Before the expiration of the six months during which time both the applicable statute section 13, chapter 56, '35 C.S.A., and the decree provided that plaintiff and defendant should not be divorced, the plaintiff moved to dismiss her case. The court denied this motion. Plaintiff duly excepted to the adverse ruling and preserved her rights by proper assignments of error.

The court erred in denying plaintiff's motion to dismiss her action after the entry of the interlocutory decree, but during the six months Before the divorce became final. The statute, section 13, chapter 56, '35 C.S.A., specifically provides that after the entry of the interlocutory decree and during the subsequent six-months period the parties shall not be divorced. The interlocutory decree itself contained the same reservation.

In an early Colorado case, Stebbins v. Anthony, 5 Colo. 348, we said: 'While there are some adjudications to the effect that an action of divorce is a purely statutory proceeding, we think the weight of authority opposed to this view; and that the jurisdiction of the equity tribunals has generally been asserted and maintained in this country in the absence of statutes as well as under them.'

In Walton v. Walton, 86 Colo. 1, 278 P. 780, 782, a case in which the guilty party was seeking to compel the innocent spouse to accept a final decree of divorce to which the findings of fact and conclusions of law entitled her, this court among other things said:

'In the case of Gilpin v. Gilpin, 12 Colo. 504, 519, 21 P. 612, 617, we find the following language: 'Society, the public, the commonwealth, have an interest in the preservation of the marriage relation. In an important sense it may well be said there are three parties to every divorce proceeding, the husband, the wife, and the state, and in some instances a fourth, the children.' * * * 'It does not follow because a married person has a legal ground of divorce that he or she is bound to assert the same in the courts, either as plaintiff, or as defendant by way of cross-complaint.'

'The courts in our jurisdiction have always zealously guarded the rights of the innocent spouse, and have refused, in a number of cases, to countenance any attempt to compel the innocent spouse to accept a decree.'

Among the cases cited by the writer of this opinion is Milliman v. Milliman, 45 Colo. 291, 101 P. 58, 22 L.R.A.,N.S., 990, 132 Am.St.Rep. 181. That case was similar to the one at bar. We cannot more concisely set forth its facts and the holding of the court than to quote from the opinion in the Walton case as follows:

'In Milliman v. Milliman, 45 Colo. 291, 101 P. 58, 22 L.R.A. (N.S.) 999, 132 Am.St.Rep. 181, the plaintiff husband filed his complaint charging the defendant wife with cruelty. The wife filed her answer, denying cruelty, and also her cross-complaint alleging that the plaintiff had been guilty of cruelty. She did not ask for a divorce. The case was tried to a jury, which returned into court with a verdict in which both parties were found guilty of cruelty, as charged in the respective pleadings of the parties. In a colloquy between counsel, it became evident to the members of the jury that, under their verdict, neither party to said action could obtain a divorce, and thereupon one of the jurors announced that the verdict was not his verdict. Whereupon, the jury was polled, and each juror answered that the verdict was not his verdict. Counsel for the defendant thereupon asked leave to amend her cross-complaint so as to ask for a divorce, which leave was granted, but in fact no amendment was ever made. The jury returned with its verdict, finding the defendant not guilty of cruelty, and finding the plaintiff guilty of cruelty. The defendant objected to the reception of the verdict, and filed her written motion, in which she moved 'that no decree of divorce be granted herein.' She also announced, in her motion, her refusal to amend her cross-complaint praying for a divorce. The court, upon consideration, denied the defendant's motion, and entered a decree of divorce in favor of the defendant upon her cross-complaint. This court, speaking through Chief Justice Steele, said at page 294, of 45 Colo. (101 P. 58):

"The judgment of the court, in refusing the defendant...