Graham v. Graham

• Decision Date: 07 January 1907
• Citation: 38 Colo. 453,88 P. 852
• Parties: GRAHAM v. GRAHAM.
• Court: Colorado Supreme Court

88 P. 852

38 Colo. 453

GRAHAM v. GRAHAM.

Supreme Court of Colorado

Jan 7, 1907

Rehearing Denied Feb. 4, 1907.

Error to County Court, City and County of Denver; Ben. B. Lindsey Judge.

Action by Ione Parker Graham against James A. Graham. From a judgment for plaintiff, defendant brings error. Reversed and remanded.

F. A. Williams, for plaintiff in error.

D. B Kinkaid, for defendant in error.

GODDARD J.

In an action for divorce brought by the defendant in error against the plaintiff in error in the county court of Arapahoe county a decree was rendered on the 31st day of August, 1897, which in addition to annulling the marriage theretofore existing between these parties, inter alia, provided 'that the sole care, custody, and control and education of the said Edward A. Graham, Philip P. Graham, and Elizabeth B. Graham issue of said marriage, be and the same is hereby awarded to the plaintiff. It is further ordered, adjudged, and decreed by the court that the said defendant pay to the plaintiff as alimony for the support of herself and that of said minor children the sum of fifty dollars per month, monthly during each and every calendar month hereafter, in all not exceeding the sum of two thousand dollars.' In compliance with this decree, the plaintiff in error paid to the defendant in error $50 per month, including the month of December, 1900, in the aggregate the sum of $2,000. On June 12, 1903, the present action was brought to recover for money expended for the support, maintenance, and education of the said Philip P. Graham and Elizabeth B. Graham from the 1st day of January, 1901, until the commencement of the action, and for the support and maintenance of Edward A. Graham until he became of age, and for an allowance for the further care, support, and education of Philip and Elizabeth until they became of age.

The plaintiff in error pleaded the judgment recovered in the divorce proceeding as a bar to a recovery in this action, and averred that defendant in error, by securing the custody and services of the children, assumed the cost of their care and maintenance, and that their services exceed in value such cost. The replication traversed the latter allegations. The case was tried to the court. Upon the trial the court eliminated the claim for the support of Edward, and allowed $25 per month for the support of Philip and Elizabeth from the commencement of the suit until the time of trial, aggregating $300, and adjudged that the father should pay $20 per month to the mother on account of each of the other children until they became of age, to wit, $40 a month for the maintenance, education, and support of Philip and Elizabeth until the ___ day of December, 1904, when Elizabeth will arrive at her majority; and thereafter $20 per month for the support, maintenance, and education of Philip, until the 19th day of January, 1906, when he will become of age. The evidence discloses that Elizabeth was at the time of the trial and for several years previous had been in delicate health and unable to perform physical labor, and able to attend school but a part of the time, and that Philip, who was 16 years of age in 1901, was in good health, and who testified that he had been physically able since he was 16 to support himself. It also appears that he had been employed in various ways portions of the time, receiving considerable compensation, and at the time of the trial was working for the telephone company at $45 per month.

It is unnecessary to consider many of the questions which have been ably discussed by counsel. It is sufficient to say that we think the court below correctly ruled that the plaintiff in error was not relieved of his obligation to furnish necessary support for his minor children by reason of being deprived of their care and...