Hamilton v. Hamilton, 14356.

• Decision Date: 11 September 1939
• Docket Number: 14356.
• Citation: 104 Colo. 615,94 P.2d 127
• Parties: HAMILTON v. HAMILTON.
• Court: Colorado Supreme Court

94 P.2d 127

104 Colo. 615

HAMILTON v. HAMILTON.

No. 14356.

Supreme Court of Colorado

September 11, 1939

In Department.

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Contempt proceeding on citation for failure to pay alimony by Eva C Hamilton against Curtis B. Hamilton. To review an order of discharge and that judgment for alimony be vacated and voided, plaintiff brings error.

Reversed in part and affirmed in part.

Robert L. McDougal, of Denver, for plaintiff in error.

Ernest Lee Williams, of Denver, for defendant in error.

HILLIARD Chief Justice.

In a contempt proceeding on a citation for failure to pay alimony there was order of discharge. The court further ordered that the judgment for alimony be vacated and voided.

In September, 1920, plaintiff in error obtained a divorce from defendant in error. The parties entered into a written contract in relation to 'alimony, division of property and all property rights existing between them,' the provisions of which were approved by the court and made part of the findings and decree entered in the case. Of the provisions of the contract and decree entered pursuant thereto, defendant in error was required to pay plaintiff in error 'as reasonable alimony,' the sum of $1,400, $700 on or Before June 15, 1920, and a like sum on or Before June 15, 1921. It is conceded that those payments were discharged. The further contractual and decreed provision required defendant in error to pay $150 per month on the 5th of March, April, and May, 1920, and thereafter, beginning June 5, 1920, $165 per month, 'for the support and maintenance' of plaintiff in error and three minor children. It was further provided that in the event of the remarriage of plaintiff in error, the payments should be reduced to $115 per month, and that as the children attained unto the age of twenty-one years, or were deceased, 'the monthly sums then due and payable hereunder shall be reduced to the extent of one-third thereof.' It appears that one of the children died in 1922, and that the other two have attained unto the age mentioned, the youngest of them becoming twenty-one, December 13, 1933. May 24, 1937, plaintiff in error filed a 'petition for citation' charging that defendant in error had disregarded his obligation to plaintiff in error and their children, and had failed and refused to comply with the order of the court during the children's minority, in which defaults he was persisting; and that there was due and owing from defendant in error a substantial sum of money.

Citation issued on said petition, requiring defendant in error to appear and show cause 'why the order of court, entered September 21, 1920, still in full force and effect, should not be complied with.' Defendant in error answered the citation, setting forth the contract and decree originally entered, substantially as we have recited, and alleged that he had made 'every effort to carry out the terms' of the contract and decree; further alleging that the present proceeding is the first effort of plaintiff in error to enforce the decree, he invoked the doctrine of laches.

The evidence on the citation and answer consisted of the contract executed by the parties, which was the basis of the court's findings and decree in the divorce trial proper the cross-examination of defendant in error by plaintiff in error's counsel, and supplementary examination by defendant in error's own counsel. Briefly stated, the testimony of defendant in error was to the effect that while he had not at all times paid $165 per month, or the proportionate part thereof, as reduction had resulted owing to the death of one of the...