Lay v. Lay

• Decision Date: 06 March 1967
• Docket Number: No. 21020,21020
• Citation: 425 P.2d 704,162 Colo. 43
• Parties: James H. LAY, Jr., Plaintiff in Error, v. Margaret A. LAY, Defendant in Error.
• Court: Colorado Supreme Court

Page 704

425 P.2d 704

162 Colo. 43

James H. LAY, Jr., Plaintiff in Error, v. Margaret A. LAY, Defendant in Error.

No. 21020.

Supreme Court of Colorado, En Banc.

March 6, 1967.

Rehearing Denied April 17, 1967.

Gelt & Grossman, Herbert H. Galchinsky, Denver, for plaintiff in error.

Arthur S. Bowman, Denver, for defendant in error.

KELLEY, Justice.

The plaintiff in error will be referred to as the 'husband' and the defendant in error as the 'wife.' On July 27, 1960, the husband instituted divorce proceedings. The divorce, however, was granted to the wife on November 2, 1960, on her cross-claim. On October 20, 1960, the parties entered into an elaborate agreement for the purpose of settling all matters relating to the division of their property, establishing the obligation of the husband to the wife for her maintenance and support, and providing for child custody and support.

The agreement was submitted to the court for its approval. The court approved the agreement and it was adopted and incorporated into the decree of divorce. The portion of the decree which is involved in the instant controversy relates solely to the monthly payments payable to the wife. The portion of the decree pertaining to child support and the division of property is not subject to attack on this writ of error.

After stipulating for payments of $300 per month by the husband to the wife for the first twelve months, the contract provides:

'(b) Two Hundred Fifty Dollars ($250.00) per month, commencing with the month of November, 1961, and continuing for consecutive months thereafter until the Wife dies or remarries, whichever occurs first.'

Following closely on the discharge of a citation for contempt against the husband for failure to comply with the terms of the decree, the husband, on July 10, 1962, caused to be filed a petition for reduction of the alimony payments because of an alleged change of circumstances, to wit, reduced income and inability to pay the agreed amounts.

The court heard the motion on July 26, 1962, and found the husband to be $850 in arrears in 'alimony' payments; it thereupon ordered the monthly payments reduced from $250 to $175, but also ordered the husband to pay $25 per month on the arrearages. Because the husband had recently changed jobs, the matter was continued 'to December 28th for review as to what his income will be at that time.'

On December 28, 1962, the court heard the motion to reduce 'alimony.' It was again continued for further hearing to March 15, 1963. At the hearing on March 15, the court took the matter under advisement. On March 25, 1963, the court, after reviewing the evidence and making findings thereon, entered an order, as of March 15, 1963, in the following form:

'It is the opinion of the Court that the Plaintiff should be compelled to comply with his original agreement and that the reduction given should be an abatement but not a forgiveness of that amount and should accumulate as an obligation against him or that it should not be any further abated at the present time because it would only make it impossible for the Defendant, the former wife, to make ends meet.'

The husband then filed a petition for rehearing, basing his request on the failure of the court to consider his changed financial condition. He also sought reinstatement of the original order which was based on the agreement.

At the hearing on the motion for rehearing, the court modified its March 15, 1963, order by adding:

'* * * In accordance with the order of Judge Cook heretofore entered, the twenty-five dollar payments to apply on the arrearages, plus the one hundred and seventy-five dollars from the time of his order to this date shall be deemed the entire obligation of the Plaintiff. And Judge Cook's order is modified in accordance with the expression of the Court heretofore in this paragraph given.'

At the time of the argument before this court counsel for the wife stated that as far as his client was concerned, she waived any claim which she might have to the $75 per month which was abated or forgiven by the court order of July 26, 1962. We shall treat this as a review of the order of March 15, 1963, as modified above.

Before we consider the question of whether the trial court abused its discretion, we must first determine whether the court, as a matter of law, can, under any change of conditions, modify the provisions of a marriage settlement agreement which has been approved by the court and incorporated in the divorce decree.

The preamble to the agreement recited that:

'* * * it is the desire and intention of each of the parties to this Agreement to settle and adjust all property rights between themselves, all rights to temporary support money and permanent alimony, attorneys' fees and costs, and the matter of custody of the minor children.'

The agreement then spells out the division of the real and personal property, the amount of alimony and support money, and the respective obligations of the parties in other areas. Under a division of the agreement, labeled 'Mutual Agreements and Releases,' these provisions appear:

'2. In consideration of the covenants by the Husband hereinbefore set forth, the Wife does hereby release the Husband from any and all rights, claims and demands of whatsoever kind and nature, arising out of or growing out of the marital relationship between the parties, including any temporary or permanent alimony, or attorneys' fees or costs, or any claim in and to any real or personal property which the Husband may have at this time, or hereafter acquire, other than as herein specifically provided; * * *.

'3. The Wife hereby waives, relinquishes and releases all claims, allowances, widow's allowance, statutory share and other rights which she may have in and to the estate of the Husband. * * *

'4. This Agreement shall not affect or be a bar to any action of divorce between the parties hereto; however, in any such divorce proceeding, the parties agree to accept the provisions of this agreement in lieu of any other claim by either of the parties against the other for any allowance,...