Duvall v. Duvall, 13514.

• Decision Date: 07 May 1934
• Docket Number: 13514.
• Citation: 95 Colo. 95,32 P.2d 842
• Parties: DUVALL v. DUVALL.
• Court: Colorado Supreme Court

32 P.2d 842

95 Colo. 95

DUVALL v. DUVALL.

No. 13514.

Supreme Court of Colorado

May 7, 1934

In Department.

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

Proceeding by Maude C. Duvall to punish Harry K. Duvall, Jr., for contempt. From decision absolving defendant from contempt and entering and modifying various judgments for payments plaintiff brings error.

Reversed and remanded.

Moffett & Hitchcock, of Denver, for plaintiff in error.

Clarence L. Bartholic, of Denver, for defendant in error.

HILLIARD, Justice.

On petition, properly supported, defendant was cited to show cause why he should not be adjudged in contempt for failure to comply with orders of court to pay toward the support of his minor child. The court absolved him from contempt computed the sum of defaulted payments, $417, entered judgment therefor, reduced monthly payments from $25, as previously decreed, to $10, to be credited, when paid, on back judgments (it appears there was a previous judgment entry of $400 covering earlier defaults).

We group plaintiff's assignments under two headings: (1) That the court erred in relieving defendant from the charge of contempt; (2) that since neither party sought modification, and no change in the circumstances of the parties was claimed or made to appear, the court's power to that end had not been invoked, hence should not have been exercised.

It appears that December 7, 1931, on trial for divorce, findings favorable to plaintiff were entered, in which the court approved a written agreement between the parties, dated February 11, 1931, providing, among other things, the plaintiff should have the custody of their minor child Cladys Nadine, and toward the support of the child defendant would pay $25 per month, payment to be made on the 20th of each month, commencing March, 1931; that March 2, 1932, on hearing, although he had not paid as he agreed and was ordered, defendant was purged of contempt, the reasons not appearing; that June 23, 1932, the court denied plaintiff's motion to withhold final decree until defendant had given surety for support of the child as agreed and ordered, and at the same time the court awarded judgment in favor of plaintiff in the sum of defendant's arrearages, $400, and continued the order of $25 per month for the support of the child, to commence July 20, 1932; that August 26, 1932, final decree of divorce was entered, in which the agreement and order for payment of $25 per month was made part; that January 10, 1934, when defendant had defaulted in the further aggregate sum of over $400, plaintiff caused him to be cited as in contempt, and January 30, 1934, on hearing, the court made orders as recited at the opening of this opinion.

It further appears that commencing June, 1932, and ending March, 1933, at various dates, defendant made eight $5 payments and two $4 payments, or $48 toward his agreed and decreed obligation; that otherwise he is wholly in default; that the parties have contracted other marriages, and the custody, control, and care of the child continues to rest with plaintiff.

We think this young man should have done more toward discharge of his agreement and court orders than the record shows to be the fact. He owns a car, recently acquired, and his answers relative to...