Marriage of Corley, In re, 75--860

• Decision Date: 28 October 1976
• Docket Number: No. 75--860,75--860
• Citation: 558 P.2d 450,38 Colo.App. 319
• Parties: In re the MARRIAGE OF James Conant CORLEY, a/k/a James Conant Dean, Appellant, and Mary Frances Corley, a/k/a Mary Frances Dean, Appellee. . II
• Court: Colorado Court of Appeals

Page 450

558 P.2d 450

38 Colo.App. 319

In re the MARRIAGE OF James Conant CORLEY, a/k/a James Conant Dean, Appellant and Mary Frances Corley, a/k/a Mary Frances Dean, Appellee.

No. 75--860.

Colorado Court of Appeals, Div. II.

Oct. 28, 1976.

Rehearing Denied Nov. 18, 1976.

Certiorari Denied Jan. 3, 1977.

Dickie D. Lewis, Grand Junction, for appellant.

Richard M. Hall, Grand Junction, for appellee.

BERMAN, Judge.

The marriage of the parties was dissolved on December 5, 1973, and a property settlement agreement was incorporated by reference in the decree. That agreement divided the assets and liabilities of the parties, and obligated the husband to make monthly payments for the 'maintenance' of the wife.

In April of 1975, the husband moved to reduce the amount of maintenance. The court, relying on the rule in Lay v. Lay, 162 Colo. 43, 425 P.2d 704, concluded that it had no continuing jurisdiction to modify or set aside the arrangements of the parties for maintenance of the wife, and therefore denied the husband's motion. We agree with the trial court that the payments to the wife are not subject to subsequent modification by the court, and therfore we affirm the dismissal of the motion.

In Lay v. Lay, supra, the Supreme Court stated:

'It is well-established in this state that a property settlement agreement which is approved and incorporated in a divorce decree cannot subsequently be modified, in the absence of fraud or overreaching (Magarrell v. Magarrell, 144 Colo. 228, 355 P.2d 946; Zlaten v. Zlaten, 117 Colo. 296, 186 P.2d 583). It is similarly well-settled that a provision in an agreement which obligates the husband to make fixed monthly payments to the wife, where the agreement is approved by the court and incorporated in the decree of divorce, is not subject to subsequent modification. International Trust Co. v. Liebhardt, 111 Colo. 208, 139 P.2d 264.'

Here, the agreement of the parties specifically stated that no modification of any term in the agreement would be valid unless in writing and signed by both parties. There was no reservation to the court of the power to modify the maintenance provision, nor did the court, as a condition of approval of the agreement, reserve the power to modify. Thus, under Lay v. Lay, supra, it may only be modified upon proof of fraud or overreaching, or by the subsequent agreement of the parties, none of which factors are present here. The court was thus correct in ruling that it could not modify the...