Giambrocco v. Giambrocco, 21126

• Decision Date: 06 February 1967
• Docket Number: No. 21126,21126
• Citation: 161 Colo. 510,423 P.2d 328
• Parties: Genevieve Josephine GIAMBROCCO, Plaintiff in Error, v. Joseph GIAMBROCCO, Defendant in Error.
• Court: Colorado Supreme Court

Page 328

423 P.2d 328

161 Colo. 510

Genevieve Josephine GIAMBROCCO, Plaintiff in Error, v. Joseph GIAMBROCCO, Defendant in Error.

No. 21126.

Supreme Court of Colorado, In Department.

Feb. 6, 1967.

Pehr & Newman, Westminister, for plaintiff in error.

Victoria F. Gross, Denver, for defendant in error.

HODGES, Justice.

The parties appear here as they did in the trial court and therefore the plaintiff in error, Genevieve Josephine Giambrocco, will hereinafter be referred to as the plaintiff and the defendant in error, Joseph Giambrocco, will hereinafter be referred to as the defendant.

In 1961 the plaintiff filed her action for divorce against the defendant, and the defendant filed an answer and cross-claim. Additional pleadings were filed and hearings had, all of which culminated in a decree of divorce entered on June 17, 1963, wherein the trial court granted the divorce to both the plaintiff and the defendant.

Thereafter, on August 28, 1966, the trial court held a hearing relating to the custody of the children, support for the children, alimony, and a division of property. In the trial court's order, provision was made for the custody of the children, their support, and $400 a month alimony to the plaintiff. Additionally, the trial court, with respect to the family home, valued at $28,500, ordered and directed that the plaintiff convey her interest in this property to the First National Bank of Denver as trustee. That portion of the 'Judgment and Decree' is quoted, as follows:

'6. The parties shall forthwith convey to The First National Bank of Denver, Denver, Colorado, as Trustee, the residence property at 4145 Yarrow Street, Wheatridge, Colorado, under an agreement which shall be drafted and approved by the parties hereto, or submitted to the Court for its approval, wherein and whereby the defendant is ordered to pay the 1962 taxes now in default, and all costs and fees of the trustee. The agreement shall provide that the property be not sold or mortgaged except upon approval of the parties hereto, or by the court, upon notice to the parties to this action then surviving, or their legal guardians, if any. The defendant may make his residence at the property, with any children then in his care and custody, without payment of rental, but upon the express condition that he pay all costs of repair, upkeep, taxes, insurance, and other burdens of ownership. All avails and proceeds from the ultimate sale or other disposition of the property shall be divided among the children of the parties, share and share alike, the children of any deceased child to take the parent's share, per stirpes.

'7. The Plaintiff shall vacate the residence property at 4145 Yarrow Street, Wheatridge, Colorado, within fifteen days from this date.'

The trial court also decreed that, in the event the defendant shall die within one year next following this decree, then in lieu of the alimony which the plaintiff would be otherwise entitled to receive, The plaintiff shall have a claim against the estate of the defendant which shall be in the nature of, and allowed as, a fourth class claim in the sum of $14,000. Further, the trial court ordered that, in the event the death of the defendant should take place after the one-year period, while the plaintiff was entitled to receive alimony, the amount of such claim should decline by the sum of $1,000 each succeeding anniversary date after the effective date of the trial court's decree.

The plaintiff herein seeks reversal, and contends that the trial court exceeded its jurisdiction and abused its discretion in entering the judgment and decree on August 28, 1963, requiring the plaintiff to convey, without consideration, certain real property to the First National Bank of Denver, Denver, Colorado, as trustee for the three minor children of the parties; also that the court erred as a matter of law and abused its discretion and exceeded its jurisdiction by providing that the alimony awarded to the wife, in the event of the death of the defendant, should be the sum of $14,000 and should constitute a fourth class claim against the estate of the defendant and should decline by the sum of $1,000 per year after August 28, 1963.

The jurisdiction of the trial court with reference to the matter of division of property in a divorce action is set forth in C.R.S. 1963, 46--1--5(2), as follows:

'At the time of the issuance of a divorce decree, or at some reasonable time thereafter as may be set by the court at the time of the issuance of said divorce decree, on application of either party, the court may make such orders, if...