Githens v. Githens

• Decision Date: 05 October 1925
• Docket Number: 11258.
• Parties: GITHENS v. GITHENS.
• Court: Colorado Supreme Court

239 P. 1023

78 Colo. 102

GITHENS v. GITHENS.

No. 11258.

Supreme Court of Colorado, En Banc.

October 5, 1925

Error to Arapahoe County Court; George W. Dunn, Judge.

Motion by George W. Githens to vacate a decree anulling a decree of divorce granted to Margaret J. Githens. Motion denied, and movant brings error.

Affirmed.

B. O. Wheeler and Ivan A. Allen, both of Denver for plaintiff in error.

S Harrison White and John L. Griffith, both of Denver, for defendant in error.

CAMPBELL J.

In an action for a divorce by Margaret J. Githens against her husband, George W. Githens, the county court of Arapahoe county, in November, 1909, awarded to her a decree dissolving the marriage relation. Thereafter, in January 1923, the parties appeared in person in the same court and joined in a written application, signed by them respectively, to have the same annulled so that their status as married persons shall remain as though the divorce had never been granted. They further set forth in the application that, notwithstanding the decree of divorce, they have not recognized the same, but have been for more than 13 years, and ever since it was rendered, and still are, living together as man and wife, and further ask that the divorce action be dismissed and neither party take any decree or judgment by reason of the same. The court granted the application and entered a decree of annulment, dismissed the action as prayed for, put its stamp of approval upon their reconciliation, and judicially restored the parties to their former marital relation. More than two years thereafter the husband made an application to the court to vacate the annulling decree, which the wife resisted. Unon final hearing the trial court denied his motion, and the plaintiff husband is here with this writ of error for a review of its judgment.

In a recent case, Hinderlider et al. v. Town of Berthoud (Colo. Sup.) 238 P. 64, we reannounced the settled doctrine in this jurisdiction that a party who procures or gives his consent to a decree, even though it be void as beyond the power of the court to pronounce, is estopped to question its validity. But if it be assumed for our present purpose, but not so deciding, that the plaintiff in error may have his contentions determined by a writ of error, and that this writ of error lies, we think the decree of the county court was right and should be affirmed for the following additional reasons: The only objection urged by plaintiff in error to the judgment under review is that, since the county court is governed by section 81 of our Code of Civil Procedure it had thereunder no jurisdiction to reopen or vacate this decree unless the application therefor was made within the period of six months after the adjournment of the term, this application not having been made within the time. If the Code provision is applicable to divorce actions, we think the contention not tenable. At the common law, as adopted by us, courts of law and equity in England did not have jurisdiction in divorce cases. The ecclesiastical courts alone had such power. The doctrine there was that after a decree of divorce was rendered reconciliation and living togehter as husband and wife by the parties of itself nullified the divorce decree. In Barrere v. Barrere, 4 Johns Ch. (N.Y.) 187, Chancellor Kent, in an able opinion, refers to the practice in the ecclesiastical courts in England and other countries. The Barrere Case was one for separation from bed and board forever or for a limited time. The learned chancellor decided that, inasmuch as opportunity should be left open for reconciliation, the proper course is to declare the separation perpetual with the power reserved to the parties to come together under sanction of the court whenever they should find it to be their mutual and voluntary disposition. It appears from the opinion...