Eadon v. Reuler

• Court: Colorado Supreme Court
• Writing for the Court: DOYLE; HALL, C. J., and McWILLIAMS
• Citation: Eadon v. Reuler, 361 P.2d 445, 146 Colo. 347 (Colo. 1961)
• Decision Date: 01 May 1961
• Docket Number: No. 19314,19314
• Parties: Georgia C. EADON, Plaintiff in Error, v. Maurice REULER, as Conservator of Estate of Arthur E. Eadon, a/k/a Earnest E Eadon, Maurice Reuler, Lee Goodbar, Paul V. Evans, and W. H. Moulton, Defendants in Error.

Page 445

361 P.2d 445

146 Colo. 347

Georgia C. EADON, Plaintiff in Error, v. Maurice REULER, as Conservator of Estate of Arthur E. Eadon a/k/a Earnest E Eadon, Maurice Reuler, Lee Goodbar, Paul V. Evans, and W. H Moulton, Defendants in Error.

No. 19314.

Supreme Court of Colorado, In Department.

May 1, 1961.

D. E. Johnson, Ordway, for plaintiff in error.

Myron H. Burnett, Denver, for defendants in error, Earnest Eadon and Maurice Reuler.

Tarter & Tarter, Clinton M. Cole, Colorado Springs, for defendants in error, Lee Goodbar and Paul V. Evans.

DOYLE, Justice.

This writ of error seeks review of a judgment dismissing a complaint seeking damages against attorneys who had acted for plaintiff in error, to whom we will refer as plaintiff or as Georgia, in a divorce action. The husband in the divorce action and his attorneys were also named as defendants, and the claims asserted against them were likewise dismissed by the trial court.

A divorce action was commenced by the husband, Earnest Eadon, on December 1, 1956 in the district court of Lincoln County. He was then represented by attorneys who, fortunately for them, withdrew before issue was joined. Maurice Reuler, a defendant in the present action, then entered appearance for Earnest. Georgia Eadon filed various motions, including requests for restraining orders against physical violence and disposition of property. Some of this relief was granted. Subsequently, Georgia Eadon, acting through the attorneys whom she is now suing, filed a verified answer and counter-claim. She denied the allegations of the complaint, prayed for divorce on the charge that Earnest had been 'extremely and repeatedly cruel toward the defendant, without cause, and that the acts of cruelty were committed within the State of Colorado.' It was not until June 10, 1957 that the matter came on for trial. The case was then heard as a non-contested matter and a decree of divorce was granted on the counter-claim of Georgia. On June 22, 1957 an order was entered granting temporary alimony. There were subsequent interlocutory property orders and finally in December, 1957, the cause was heard on final division of property. A further order dated January 29, 1958 divided the property between the parties on an equal basis.

Subsequent proceedings included a request by Messrs. Evans and Goodbar, who had represented Georgia, to withdraw from the case and for an allowance of an attorneys' fee. Present counsel for Georgia, Mr. D. E. Johnson, at first opposed the payment of fees to Evans and Goodbar, but later stipulated to the payment of one-half of the request, the sum of $500, from funds on deposit. This appears in an order of March 24, 1958. Later Georgia and attorney Johnson opposed this payment on the ground that their agreement to it had been given without full knowledge of the facts.

The sequence of events leading to the present action commenced on May 8, 1958. A motion was filed by Georgia, through her present counsel Johnson, to set aside and vacate the divorce decree and property settlement, claiming that her former attorneys, Evans and Goodbar, had conspired and connived with Earnest, his attorney and W. H. Moulton, former attorney for both Georgia and Earnest, to obtain the divorce decree and the alleged inequitable distribution of property decreed in the order of January 28, 1958. Particular emphasis was given to the failure of Georgia's former counsel to advise her that the interlocutory decree could have been set aside on her motion during the six month interlocutory period which then existed. Also relied on was the participation of her counsel in the taking of Moulton's deposition and their failure to object to its use on the ground of privilege.

Hearing on this motion was had on June 25, 1958 and at that time counsel for Georgia made an extensive offer of proof designed to substantiate the allegations of fraud, conspiracy and connivance. The gist of his showing was that a proper alignment of the evidentiary matter would have produced a far different disposition of the property; that Georgia was entitled to the lion's share by virtue of her arduous work and because in 1929 she paid off a $168 debt of Earnest and was entitled, through a parol agreement made at that time, to all the property subsequently acquired.

The trial judge, Honorable John Meikle, granted the defendants' motion to strike which attacked the material in Georgia's motion as scurrilous and scandalous. The judge commented at length on the property settlement agreement which had been theretofore entered, and stated that his judgment would not have been modified by anything advanced in the motion or the offer of proof. The court noted that it had not given weight to the deposition of Moulton and concluded that the division of property was just and equitable. In refusing to set aside the order dividing property, the court stated that the evidence failed to show any collusion with respect to obtaining the divorce or the entry of the property settlement. These comments are here pertinent:

'4. The Court further finds that there has not been any showing by the defendant of any nature whatsoever to indicate the slightest taint of any fraud or connivance between Mr. Reuler, the attorney for the plaintiff and former counsel for the defendants, Messrs. Goodbar and Evans, while representing her as said counsel. The only offer by which defendant sought to show such fraud and connivance was that the parties, through their attorneys, attempted to reach an amicable settlement as to the division of property. Such attempt failed and the matter was submitted to this Court at the hearing on December 11th, 1957, after which hearing, this Court made a determination of property rights and ordered a division of property as set forth by its decree and order dated January 27th, 1958.

'5. The Court further finds that any misconduct of either Mr. Goodbar or Mr. Evans, as attorneys for the defendant and the Court believes that there was none, did not involve Mr Reuler, nor did it have anything to do with the issues between the parties; therefore, all allegations of misconduct, fraud or connivance or both should be expunged from the record of this Court as scandalous and scurrilous.' (Emphasis supplied.)

The denial of the motion to vacate was brought to this Court (Docket No. 18823). The writ of error therein was dismissed for the failure to seek review within three months following the entry of final judgment.

Subsequently the present civil action was filed in the district court of Lincoln County, naming the various parties identified above. It purported to be a tort action and contained the same tired old allegations which had been presented in the motion to vacate in the divorce action. It alleged that the defendants had

'* * * colluded and conspired to procure a divorce for said parties, not desired by plaintiff, a division and court sale of plaintiff's separate property, through the wrongful services and aid of the defendant, W. H. Moulton, and did procure a final order of the district court, granting a divorce to the plaintiff, which she did not want, but which defendant Earnest Eadon did want, but had no grounds therefor, and did on the 11th day of December, 1957, procure a property settlement decree in consummation of defendants' plans and designs, to plaintiff's damages in the following items, to-wit: * * *'

The present action is predicated on the assumption that attorneys Goodbar and Evans agreed to obtain a divorce and to submit to the court the issues of property division contrary to the interests of their client Georgia. It alleged the misconduct of her attorneys in somewhat more extravagant terms than the motion to vacate the divorce decree had set them forth in that it positively charged that Georgia had demanded that the divorce be...