Johnson v. Johnson

• Decision Date: 19 October 1925
• Docket Number: 11335.
• Citation: 240 P. 944,78 Colo. 187
• Parties: JOHNSON v. JOHNSON.
• Court: Colorado Supreme Court

240 P. 944

78 Colo. 187

JOHNSON v. JOHNSON.

No. 11335.

Supreme Court of Colorado

October 19, 1925

Department 2.

Error to District Court, City and County of Denver; Francis E Bouck, Judge.

Suit for divorce by Edna B. Johnson against Elmo Johnson. Decree for defendant, and plaintiff brings error. On plaintiff's motion for alimony, suit money, and attorney's fees.

Motion denied.

Henry J. Hersey and C. A. Bailey, both of Denver for plaintiff in error.

Horace N. Hawkins, of Denver, for defendant in error.

DENISON J.

This is upon a motion for alimony, suit money, and attorney's fees pending the proceedings in this court.

This court has held in Pleyte v. Pleyte, 15 Colo. 44, 24 P. 579; Id., 15 Colo. 125, 25 P. 25, and other cases, that such a motion, under proper circumstances, may be granted here, but that it will not be granted when the wife is plaintiff in error, unless probable error appears. Was there probable error? The pertinent facts are as follows:

The plaintiff in error, Edna Johnson, brought suit against her husband, in the district court of Denver, and alleged an antenuptial contract between them to accept and pay $5,000 'as full and permanent alimony' in case there should be a divorce; and in pursuance thereof she asked $5,000 alimony, 'the same when paid to be in full settlement release, and discharge of all her rights or claims against the defendant or his estate.' She made oath to the complaint, she obtained an interlocutory decree thereon in substance as she had prayed, and the defendant paid the $5,000 in full. She did nothing further until the lapse of 16 months after the entry of the interlocutory decree, when she moved to modify that portion of it with reference to alimony, on the ground that she had been coerced by the defendant to sign the agreement by a threat that he would not marry her unless she did; that he had overcome her scruples of chastity before this threat; that he coerced her into bringing the suit and asking alimony in the way she did by threatening that if she did not he would contest the suit and expose her former conduct with him; and that, yielding to this coercion, she brought suit. She prayed in her motion that the interlocutory decree with regard to alimony be set aside. The defendant moved to strike out this motion and moved for final decree of divorce. Both his motions were granted. She applied to the district court for further suit money, attorney's fees, and alimony pending a writ of error from this court, which was denied. She now comes here with the record and asks for alimony, suit money, and attorney's fees, as above stated.

The defendant says that the motion to modify was not filed in due time, and therefore the court had no jurisdiction over its former judgment, and that it was a motion and not a petition as required by the statute, and was not...