Faith v. Faith, 17102

• Decision Date: 23 November 1953
• Docket Number: No. 17102,17102
• Parties: FAITH v. FAITH.
• Court: Colorado Supreme Court

Page 225

261 P.2d 225

128 Colo. 483

FAITH v. FAITH.

No. 17102.

Supreme Court of Colorado, En Banc.

Nov. 23, 1953.

Don B. Oliver, W. H. Erickson, Lila I. Ludlam, Denver, for plaintiff in error.

Fred J. Pferdesteller, Fred W. Vondy, Denver, for defendant in error.

CLARK, Justice.

The parties are here in reverse order to that in which they appeared in the trial court where Edward, as plaintiff, instituted the action against Margaret for divorce, charging her with adultery and cruelty. Defendant answered by denial of both charges and filed a cross-complaint by which she accused plaintiff of cruelty and nonsupport. The matter came regularly on for trial before the court on September 15, 1952, whereupon, as admitted by defendant's counsel, defendant permitted the cause to proceed as a noncontested case and withdrew her answer and cross-complaint, resulting in the entry of an interlocutory decree in favor of the plaintiff upon the statutory grounds of extreme and repeated acts of cruelty.

The decree contained the usual provision 'that during the six months period next ensuing after the date of this decree the parties hereto shall not be divorced, and neither party shall contract another marriage; that during such period the Court may, upon motion or petition of either party, or upon its own motion, for good cause shown, after a hearing, set aside this decree * * *.' It further was ordered 'that the matter of care, custody and control of the minor child * * * shall be continued and heard by the Court on the 15th day of December, 1952, at the hour of ten A.M.'

Although the record is devoid of order, notice or stipulation to that effect, by some manner, said to be pursuant to agreement of counsel, the custody hearing, instead of being held on December 15, 1952, was postponed until April 13, 1953, and later changed from that date to the 9th day of March, 1953. The six-month period did not expire, and the interlocutory decree would not have become final, until March 16, 1953.

On March 9, 1953, the matter presumably coming on for hearing upon the question of the custody of the minor child, both parties being present in court in person and by counsel, plaintiff's counsel filed a verified document entitled 'Motion to Dismiss,' the pertinent portion of which is that, plaintiff 'respectfully moves this Honorable Court to enter its order herein vacating and setting aside the Interlocutory Decree of Divorce heretofore entered by this Court on September 15, 1952, and an order of this Court dismissing said cause of action.' No notice thereof appears in the record, but defendant's counsel admitted in the trial court and again in their brief here that a day or two prior to March 9, plaintiff's counsel had told him that he would file such a motion and call it up for hearing on that day. At the beginning of the hearing plaintiff's counsel called up the motion to dismiss, and a rather lengthy discussion and argument ensued with relation thereto. After due consideration of the matter and over the objection of counsel for defendant, the trial court granted plaintiff's motion and entered an order vacating the interlocutory decree and dismissing the action.

By way of specification of error it is contended that the interlocutory decree could be vacated and the action dismissed only upon a petition setting forth good cause and after a hearing, wherein the burden of showing good cause by sufficient evidence would have to be sustained by the petitioner.

On the issue here presented there is considerable lack of uniformity in the decisions of the courts of last resort of the different States of the Union. Fortunately, we are not obliged to undertake to reconcile this conflict, since our Court long ago adopted a policy with respect to such matters to which general adherence has been had in this jurisdiction, and which we now have only to follow.

We shall not attempt to review all of the earlier cases decided by our Court, but in Milliman v. Milliman, 45 Colo. 291, 101 P. 58, 59, 22 L.R.A., N.S., 999, it was held 'that the court cannot compel one to take a divorce when he does not desire to have one'; and in Walton v. Walton, 86 Colo. 1, 9, 278 P. 780, 782, in which most of the earlier cases are cited, reviewed and discussed, appears this pertinent statement: 'It has been said that the policy of the court should be to discourage, rather than encourage, divorces. The wife [plaintiff] may well be entitled to a divorce, but whether or not she [he] will exercise that right is optional with her, [him] * * *.' In Tierney v. Tierney, 86 Colo. 362, 281 P. 737, reversal was ordered because the trial court refused to grant plaintiff's motion for dismissal filed about four months after the interlocutory decree had been entered.

Following revision of the statutes in effect at the dates of rendition of the decisions hereinabove mentioned, the same...