Garver v. Garver

• Decision Date: 05 February 1912
• Citation: 121 P. 165,52 Colo. 227
• Parties: GARVER v. GARVER.
• Court: Colorado Supreme Court

121 P. 165

52 Colo. 227

GARVER v. GARVER.

Supreme Court of Colorado

February 5, 1912

Error to Morgan County Court; M. M. House, Judge.

Action by Annie L. P. Garver against William E. Garver. There was a judgment for plaintiff, and defendant brings error. Reversed.

James E. Jewel, for plaintiff in error.

Taylor & Pendell, for defendant in error.

WHITE J.

The defendant in error instituted a suit against her hasband, who is plaintiff in error here, to obtain a divorce on the grounds of desertion and nonsupport. She also prayed for the custody and control of a minor child. The husband filed an answer denying the allegations of wrongdoing on his part and, by way of cross-complaint, charged defendant in error with willful desertion and abandonment. The cross-complaint was not interposed for the purpose of obtaining a decree of divorce, but, under the statute, to defeat defendant in error in her attempt to secure such relief. A replication to the answer and cross-complaint was filed, and a jury trial had. The issues as presented in the complaint, and likewise the cross-complaint, were submitted to the jury. The court also prepared and submitted forms of verdict upon the causes of action alleged by each of the parties. The only verdict or finding returned by the jury was as follows: 'We, the jury duly impaneled and sworn to try the issues in the above-entitled cause, find the issues in favor of the plaintiff upon the grounds of nonsupport, and recommend that plaintiff pay the costs.' Upon the return of the verdict the defendant objected to its reception and entry, upon the ground that it was contrary to the instructions of the court, and on the following day interposed the further objection that no finding had been made on the cross-complaint. These objections were again presented to the court in a motion for a new trial. The objections were disregarded, exceptions saved, and judgment and decree entered upon the verdict.

Upon the trial of an action for divorce, if both parties shall be found guilty of injuries or offenses which would entitle the other party to a decree, no divorce shall be granted to either party. Section 2117, R. S. The law further provides substantially, that, if in any such case it appears, or the court has reason to believe that the injury or offense complained of was committed under collusion or agreement between the parties for the purpose of obtaining a divorce, the court shall fully investigate the same, and, if it so finds the facts, the suit shall be dismissed. Section 2121, R. S.

It has been frequently declared that in every divorce action there are three parties--the plaintiff, the defendant, and the state. 'And if there is any collusion or fraud between the parties, or if any facts are developed at the trial which make it inequitable or unjust for a divorce to be granted, the court must see to it that a decree for divorce is not entered.' Ward v. Ward, 25 Colo. 33, 38, 52 P. 1105; Gilpin v. Gilpin, 12 Colo. 504, 21 P. 612; Redington v. Redington, 2 Colo.App. 8, 29 P. 811.

So, if there was evidence either sustaining, or tending to sustain, the charges made by the husband, it was the duty of the court, 'in the interests of the state and to conserve public morals, to fully investigate the charge and to require the jury to make a finding upon all the issues' presented by the pleadings. While the evidence is not before us, the answer and cross-complaint, to which the husband attached his sworn verification, set forth facts that should be investigated, and which, if true, would prevent a divorce decree in favor of the wife. Moreover, the court expressly instructed the jury upon the allegations of wrongdoing charged by the husband against the wife, and submitted to the jury a form of verdict applicable thereto. Under these circumstances, it must be presumed that such issue was in the case and submitted to the jury, and it was error to receive and record the verdict returned, as it was upon a portion of the issues only. Ward v. Ward, supra.

It is claimed, however, that the cross-complaint does not state facts sufficient to constitute a cause of action, and that therefore the grounds for divorce therein alleged against the wife were not properly before the court. The particular defects pointed out are that it fails to allege that cross-complainant does not ask or seek alimony in excess of the sum of $2,000. No objections were interposed to the cross-complaint in the court below, and, while it may be true that the objection here urged may be raised at any time nevertheless we...