Luthe v. Luthe

• Decision Date: 19 April 1889
• Citation: 21 P. 467,12 Colo. 421
• Parties: LUTHE v. LUTHE.
• Court: Colorado Supreme Court

21 P. 467

12 Colo. 421

LUTHE v. LUTHE.

Supreme Court of Colorado

April 19, 1889

Appeal from Arapahoe county court.

The parties to this action were married in 1869. They lived together as husband and wife for about 16 years, during which time 5 children were born to them, 4 of whom, aged 14, 7, 6 and 4 years, respectively, were living when this action was commenced and tried. The parties were without means at the time of their marriage, but had acquired considerable property by their joint efforts before they separated. The husband was a lawyer; and the wife, in the earlier part of their married life had, in addition to her household duties engaged in teaching and in canvassing as a book agent whereby she had earned considerable money for the maintenance of the family, while the young lawyer was getting started in business. The parties separated in the summer or fall of 1885, the children remaining with the mother, with the father's consent. In April, 1887, the appellant, as plaintiff, commenced this action in the county court, praying for a divorce from the defendant on the grounds of desertion and extreme cruelty, and for general relief. The defendant by her answer, denied that she had been guilty of desertion or extreme cruelty towards plaintiff, but charged that plaintiff had deserted her, leaving herself and the four children entirely without means of support; that plaintiff was possessed of property amounting to about $14,000, and that he was a lawyer, enjoying a lucrative practice. She prayed for a divorce from plaintiff, and for the care and custody of said children, and for general relief. By his replication plaintiff alleged that he was considerably in debt, and that the value of his estate, less his indebtedness, would not exceed $4,000, and that his law practice, though it had been from $2,000 to $6,000 per annum for the last 10 years, had during the last year decreased to less than $1,000; that the rent from his productive real estate ($80 a month) was being paid to the defendant by the terms of the lease, she being joint owner of one-half interest therein, and that he was willing defendant should have the rents of said joint estate.

The case, being tried by a jury, resulted in a verdict in favor of the plaintiff, and on May 24, 1887, the court rendered a decree dissolving the bonds of matrimony between plaintiff and defendant, and providing, among other things, that defendant should retain the custody of the children, to support and educate them; that, under certain regulations, plaintiff should be permitted to visit the children, and the children to visit him; that neither plaintiff nor defendant should seek to prejudice the minds of the children against either parent; that plaintiff should pay defendant alimony for support of herself and children, $80 a month, payable out of the rents, issues, and profits of lot 25 and south half of lot 26, block 150, Adae's addition to the city of Denver; that defendant should pay the interest on the incumbrance on said premises, and all taxes thereon. On lot 25 and south half of lot 26 mentioned in the decree there was a large dwelling-house, which had been the family residence. This property belonged to the plaintiff and defendant as tenants in common, and was mortgaged for $3,800. After the separation, and at the time of the trial, the defendant lived with her children in a small house, for which she paid $23 a month rent; and the family residence was rented for $80 per month, payable to her for the maintenance of herself and children. Shortly after the granting of the decree aforesaid, the defendant procured a surrender of the lease of the family residence aforesaid, and took possession thereof for herself and children; and thereupon plaintiff entered said family residence, and removed certain articles of furniture therefrom. These acts created further ill feeling between the parties, and numerous disagreements also ensued about the visits from the children to the plaintiff. Finally, on July 25, 1887, two months after the first decree was rendered, defendant filed her petition in said county court, alleging that she had not been advised as to the terms of the decree concerning allowances for alimony and maintenance for herself and children, and praying for a modification of said decree in that respect. Plaintiff answered this petition, praying that the custody of the children might be awarded to him, and that he might be relieved from the payment of alimony to defendant. Defendant replied to this answer; and, the cause being tried upon these new issues, on September 30, 1887, a decree was rendered, providing, among other things, that defendant should have and recover of and from plaintiff the dwelling-house and premises for her use, $30 a month additional alimony, $500 on account of furniture and three months' unpaid alimony, and making all unpaid allowances a lien upon plaintiff's realty, etc., and for costs. From this last decree plaintiff appeals to this court, alleging several grounds of error; but, by his argument, relying upon the alleged errors of the county court in awarding the custody of the children to the defendant, and in allowing her any alimony whatever.

H. E. Luthe, appellant, pro se.

John D. Elliott and P. L. Hubbard, for appellee.

ELLIOTT J., ( after stating the facts as above.)

Of the four children of plaintiff and defendant, three were girls two of them of very tender age. The plaintiff, after the separation, voluntarily left these children with defendant for about a year and a half before the commencement of this suit. He did not, by his replication, resist the prayer of defendant's cross-complaint for the custody of the children. On the first trial, plaintiff testified as follows: 'She [defendant] is a good nurse to the children. She is devoted to them when they are sick. A better person than she cannot be found to take care of them. I have only this fault to find: that she alienates the affections of the children from me, and makes me contemptible by the language she uses to them of me. I will say this: If it is intended to be asked if I will be satisfied for her to have the custody of the children, I will say 'Yes,' with this exception: Until the status of defendant changes by marriage or something of that kind, if there should be a divorce, with the privilege of visiting them, and of having them visit me; not only for a short time, but one at a time or two at a time, for a period of three of four days, if I desire; then to be returned. I want the privilege of remaining by their side whenever they are sick.' The original decree gave the custody of the children to the mother, and plaintiff took no exceptions thereto. From these circumstances the conclusion is almost irresistible that defendant was a proper person to have the care and custody of her children. On the second trial, a large number of witnesses testified to the industrious habits of the mother, and to her proper management of her household and of her children. The custody of these children being awarded to defendant, the use of all the estate of both plaintiff and defendant, joint and several, real and personal, was not too much to give to defendant for alimony and maintenance during their minority. The family residence was the only productive property, as plaintiff himself alleged. Indeed, there was little property other than this belonging to plaintiff, except his law library and office furniture. An undivided half interest in the family residence belonged to defendant in her own right. Giving her full possession of the whole, with all the furniture, and requiring defendant to pay taxes, insurance, and interest on the mortgage, and still his family was but scantily provided for. When the divorce was granted, plaintiff was free,--not incumbered with any family. He was in the prime of life, and had a good profession, in which he had been quite successful. Thereafter, in the race of life, without any capital but his library and his talents, his condition and circumstances were decidedly advantageous, in comparison with that of defendant, intrusted with the care of four small children. Without the aid of statute, a court of equity will generally decree that the wife, as well as the children, shall be provided with the necessities of life out of the husband and father's estate, as far as possible, unless her misconduct has been very gross; and the fact that the divorce was granted for her fault certainly will not...