Low v. Low
| Citation | 246 P. 266,79 Colo. 408 |
| Decision Date | 03 May 1926 |
| Docket Number | 11334. |
| Parties | LOW v. LOW. |
| Court | Supreme Court of Colorado |
Rehearing Denied May 24, 1926.
Error to District Court, City and County of Denver; George F Dunklee, Judge.
Suit by Olive A. Low against Arthur B. Low. Judgment for plaintiff. To review a subsequent order upon application of defendant modifying judgment, plaintiff brings error.
Reversed with instructions.
Henry E. May and Albert E. Bogdon, both of Denver for plaintiff in error.
Danforth & Kavanagh, of Denver, for defendant in error.
In this divorce action by Olive A. Low against Arthur B. Low, the final decree in her favor dissolving the marriage relation and awarding alimony was entered April 27, 1923. The only provision in the decree as to alimony is an award to her of the sum of $150 per month, to be paid the first of each month thereafter. On the next preceding day there was filed in the cause an agreement of the parties which was made by them August 3, 1922, which recited that the same was in settlement of their property rights. It provided that as a full settlement of all claims for alimony on the part of the plaintiff, the defendant will pay to her, beginning August 1, 1922, the sum of $150 per month, payable on the first day of each month thereafter, payments to continue until the marriage of the plaintiff. In addition to this monthly salary, the defendant agreed to pay to the plaintiff the sum of $2,000 out of the proceeds of the sale of their home, or, if such sale should not be made within the period of a year, the plaintiff agrees to relinquish by deed or otherwise all right and title in the property upon the payment to her by the defendant of the sum of $2,000. Defendant is to pay the court costs and plaintiff's attorney's fees in the sum of $200. Such payments of monthly alimony and the lump sum are to be in full of all demands of every kind which the plaintiff makes or could make against the defendant in consideration of which she agrees to release all such claims and demands against him and his estate.
November 7, 1924, the defendant filed a petition in the cause for a modification of alimony and based the same upon the claim that the situation and circumstances of both parties had materially altered since the award was made, and that it is no longer just or equitable that the defendant should be called upon to pay this amount to the plaintiff. This petition was traversed by the plaintiff, and as a special defense she pleaded the foregoing agreement as a bar both to the reduction of alimony and to the power of the court to modify its decree without her consent which she refused to give. Testimony was taken by both parties, and the court modified the original award by reducing the monthly payments to $75 to be paid on the first day of each month until further order of the court. The plaintiff is here with her writ of error.
Three questions or points are presented and assigned as error:
(1) That as the award of alimony was based upon an agreement of the parties which was, as well, a settlement of their property rights, it could not be modified or changed to the injury of the wife without her consent.
(2) If the court has jurisdiction to modify an alimony decree generally, the petition here does not state any ultimate facts, but only conclusions of the pleader, which do not invoke this discretionary power.
(3) That the evidence does not sustain or justify the court's reduction.
1. Notwithstanding the decisions of this court in Stevens v. Stevens, 31 Colo. 188, 72 P. 1060, 1061, followed in Graham v. Graham, 38 Colo. 453, 88 P. 852, 8 L.R.A. (N. S.) 270, 12 Ann.Cas. 137; Prewitt v. Prewitt, 52 Colo. 522, 122 P. 766; Jewel v. Jewel, 71 Colo. 470, 207 P. 991; Diegel v. Diegel, 73 Colo. 330, 215 P. 143, that a court of equity under our statute, and by virtue of its general equity powers, retains jurisdiction to modify a decree for periodical payments of alimony, the plaintiff in error strenuously contends that, though it may generally exercise such power, yet when the award of alimony in a decree of divorce is based upon a contract of the parties, which purports to settle their property rights, it cannot be set aside at the instance of one party without the consent of the other. In support of this contention are cited Henderson v. Henderson, 37 Or. 141, 60 P. 597, 61 P. 136, 48 L.R.A. 766, 82 Am.St.Rep. 741; Pryor v. Pryor, 88 Ark. 302, 114 S.W. 700, 129 Am.St.Rep. 102; Gilbert v. Hayward, 37 R.I. 303, 92 A. 625. The Henderson Case is squarely in favor of the contention, and the Pryor Case probably is also. We do not find such doctrine stated in the Gilbert-Hayward Case. Cases to the contrary relied upon by defendant in error are: Cross v. Cross, 98 Wash. 651, 168 P. 168; Soule v. Soule, 4 Cal.App. 97, 87 P. 205; LeBeau v. LeBeau, 80 N.H. 139, 114 A. 28; Brown v. Brown, 209 Mo.App. 416, 239 S.W. 1093; Eaton v. Eaton (Mo. App.) 237 S.W. 896; Mathews v. Mathews, 55 Cal.App. 661, 204 P. 27; Parker v. Parker, 55 Cal.App. 458, 203 P. 430; Wallace v. Wallace, 74 N.H. 256, 67 A. 580, 13 Ann.Cas. 293; Morgan v. Morgan, 203 Ala. 516, 84 So. 754; Cohen v. Cohen, 150 Cal. 99, 88 P. 267, 11 Ann.Cas. 520; Smith v. Smith, 77 Minn. 67, 79 N.W. 648.
Even in the Henderson Case, which probably is the best reasoned of the cases relied upon by plaintiff in error, the agreement of parties, upon which the alimony decree was based, was called to the attention of the court at the time and was carried into the decree itself practically in its entirety. In the instant case the agreement of the parties in its entirety is not carried into the alimony...
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