Ikeler v. Ikeler
| Decision Date | 08 October 1928 |
| Docket Number | 11773. |
| Parties | IKELER v. IKELER. |
| Court | Colorado Supreme Court |
Error to District Court, Garfield County; Charles E. Herrick Judge.
Action for divorce by Mary B. Ikeler against H. B. Ikeler. To review a decree for a division of property, plaintiff brings error.
Reversed and cause remanded, with directions.
See also, 82 Colo. 278, 260 P. 104.
M. H. Kennedy and J. W. Graham, both of Denver for plaintiff in error.
M. J. Mayes, of Glenwood Springs, for defendant in error.
Mary B. Ikeler, plaintiff below, obtained a verdict and preliminary decree of divorce against her husband H. B. Ikeler. A decree dividing the property was entered November 24, 1926. She brings error against the division. The divorce matter is not in question here. By cross-complaint, defendant asked for divorce and cancellation of a deed by him to plaintiff of property called the home. The divorce matter was found against him, there was no specific findings as to the deed.
The findings of fact and conclusions of law, required by S. L. 1925, c. 90, were signed and filed November 23, 1926. The final decree of divorce was not possible within six months thereafter, and, if entered, would have been void. It has not yet been entered, according to the briefs. The plaintiff in error claims that the division of the property could not be made until the final decree of divorce was granted. We think she is right. The statute (C. L. § 5599) is as follows:
'At all times after the filing of a complaint in an action for divorce the court * * * may make such order for the care and custody of a minor child * * * as the circumstances of the case may warrant, and * * * may grant alimony and counsel fees pendente lite * * *; and when a divorce has been granted the court may make such order * * * for the payment of alimony * * * as may be reasonable and just, and may require security * * * or enforce the payment thereof by execution or imprisonment, or may decree a division of property.'
It would seem unquestionable that there could be no division of property until 'a divorce has been granted.' It would be strange, and scarcely reasonable, if the statute allowed a division of property without a divorce, or while it remained uncertain whether there would be one.
The court, on November 24th, signed what are denominated 'Findings as to Division of Property,' as follows:
No finding appears in this decree. It is a decree, and describes itself so, for the division of property, not for the cancellation of the deed to the home, and was premature, as shown above, and therefore erroneous, if not void. We think this requires a reversal.
It is suggested that there is no assignment of error on this point and that under rule 35 we ought not to notice it; but by that rule we may notice a point on which no error is assigned, and we think in this case we ought to do so, because the court, not only had no right to enter the decree when it was entered, but so...
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Efsiever v. People, 14378.
...properly covered by assignments of error, in cases where the trial court's jurisdiction was lacking. Instances are found in Ikeler v. Ikeler, 84 Colo. 429, 271 P. 193; Baker v. Denver Tramway Co., 72 Colo. 233, 210 845, 29 A.L.R. 1453; Universal Ins. Co. v. Tenery, 96 Colo. 10, 39 P.2d 776.......
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McCoy v. McCoy
...of the marriage must be effective before any court has power to decree a division of property between husband and wife. Ikeler v. Ikeler, 84 Colo. 429, 271 P. 193, is authority for this rule which is well established generally throughout the country. The recent case of Vines v. Vines, 137 C......
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Bieber v. Bieber, 15295.
... ... divorce action, may decree a division of the property ... belonging to the parties, and in Ikeler v. Ikeler, ... 84 Colo. 429, 271 P. 193, 194, we held that, 'in a proper ... case,' the court may order 'a transfer from the wife ... to the ... ...