Hill v. Hill, 14633.

• Decision Date: 23 September 1940
• Docket Number: 14633.
• Parties: HILL v. HILL.
• Court: Colorado Supreme Court

107 P.2d 597

106 Colo. 492

HILL v. HILL.

No. 14633.

Supreme Court of Colorado

September 23, 1940

Rehearing Denied Nov. 25, 1940.

In Department.

Error to District Court, Phillips, County; H. E. Munson, Judge.

Divorce proceeding by Ruth Irene Hill against Harold C. Hill wherein plaintiff, after procuring a decree of divorce in which alimony payments were ordered, filed a motion for delinquent support money and that an execution issue therefor. To review an unsatisfactory judgment, plaintiff brings error.

Affirmed.

Paul W. Lee, Geo. H. Shaw, Donald C. McCreery, and William A. Bryans, III, all of Denver, and George E McConley, Jr., of Sterling, for plaintiff in error.

Sauter & Sandhouse, of Sterling, and Sherman E. Walrod, of Holyoke for defendant in error.

BAKKE Justice.

The legal problem here presented for our consideration concerns payment of alimony for the support of a wife and her minor daughter, the latter having now attained her majority. It appears from the record that December 20, 1924, Ruth Irene Hill, plaintiff in error here, procured a decree of divorce from defendant in error, Harold C. Hill, in which decree alimony payments were ordered in accordance with a formal stipulation executed by the parties. Subsequently, in July 1936, after some modifications as to the alimony payments the wife filed in the trial court a 'motion for delinquent support money and that an execution issue therefor.' In this motion, as amended, she prayed judgment for $5,646, and attorney's fees. The court entered judgment in her favor for $2,080, which included an attorney's fee of $200. Mrs. Hill, being dissatisfied with the amount of the award, brings the case here for review of that judgment, asking that it be reversed 'or that said cause be * * * remanded to the court below with instructions to make its findings, judgment and decree in favor of the plaintiff and against the defendant in the full amount claimed by plaintiff in error to be due her by defendant in error.'

The supplemental order which formed the basis for the 'amended motion for delinquent support money' was issued April 25, 1928, and increased the amount defendant was to pay plaintiff from $75 a month to $110 a month until further order of the court. Defendant complied with the supplemental order until March, 1932, when he reduced the payments to $50, without obtaining any modification of the court order as it then stood. The original stipulation provided also 'that the child may be educated to the point of a collegiate degree in some suitable institution to be selected by the wife, defendant will upon showing that the same is needed advance any necessary money needed.' Defendant, answering the allegations of the motion, asserted that the parties had agreed to the reduced payments of $50 a month for the support of the minor daughter after March, 1932, because of the then existing economic conditions which made it impossible for defendant to continue paying the decreed amount.

Defendant presented in evidence three letters (Exhibits 1, 2 and 3) which, he contended, set forth the alleged reduction agreement, the pertinent portions of which follows: Exhibit 1. 'Dear Mr. [C. D.] Walrod [a local attorney in Holyoke]. * * * I have an accurate account and have estimated that he has not sent anywhere near the amount I agreed to accept temporarily which was $50 a month. * * * Ruth T. Hill.' Exhibit 2. 'Dear Mr. [C. D.] Walrod. * * * He wrote the following summer asking to have the followance lowered to $50 monthly temporarily which I agreed to accept until he could resume the regular payments. * * * R. Hill.' Exhibit 3. 'Dear Mr. [C. D.] Walrod. Received your letter and also a check from Dr. Hill for $35. He agreed to send $50, Mr. Walrod, which is little enough at Dorothy's age. Please see that I get the difference in amount and $50 in the future. Dottie is not well and is quite an expense * * *.'

Defendant, who is a physician, owned and operated a small hospital in Holyoke, Colorado, from which, during the decade of the twenties, he derived a substantial income, but beginning with the year 1930 his net income decreased and was, as he testified, as follows: 1930-$4,043.58; 1931-$1,716.22; 1932-$1,599.10. He stated that his income for the year 1928, when the supplemental order was entered, was $7,428.46. His income for the years 1934, 1935 and 1936 averaged approximately $3,100 a year. Following the divorce, defendant married again. One child was born of this second marriage and another child was adopted.

Counsel for plaintiff summarize their assignments of error in three statements: (1) Plaintiff had a vested right in the payments fixed by the court for the daughter in 1928 until her majority, which occurred January 31, 1937. (2) The letters from plaintiff to the attorney were privileged and should not have been admitted in evidence, and without them there was lacking proof of any agreement to accept reduced payments. (3) Judgment was erroneous under any theory of the case.

1. It appears to us that counsel for plaintiff entertain the erroneous idea that this is a case where, assuming plaintiff may have had a vested right to accrued delinquent payments for alimony and support money for the daughter, the court was without power or authority to reduce those payments and have its order operate retroactively. It may be that the cases upon which they rely to...