Marriage of Rother, In re, 81CA1290
| Decision Date | 26 August 1982 |
| Docket Number | No. 81CA1290,81CA1290 |
| Citation | 651 P.2d 457 |
| Parties | In re the MARRIAGE OF Shirley ROTHER, Appellee, and Theodore Rother, Appellant. . III |
| Court | Colorado Court of Appeals |
Wiggins & Smith, P.C., Claude C. Wild, III, Denver, for appellant.
No appearance for appellee.
In this dissolution of marriage action, husband appeals a determination by the trial court that it lacked jurisdiction to modify the parties' settlement agreement regarding maintenance and insurance. We reverse.
In 1974, the court entered an order approving a settlement agreement between the parties which provided, inter alia, that husband would pay maintenance to wife and would continue to pay the premiums on her auto and health insurance policies. In 1981, husband filed a motion pursuant to § 14-10-122, C.R.S.1973, to reduce maintenance and terminate the insurance payments. He alleged that the terms relative to these issues had become unconscionable because of substantial changes in circumstances.
In denying the motion, the trial court ruled that paragraph 20 of the agreement deprived it of jurisdiction to modify the terms of the settlement agreement relative to maintenance. That paragraph provides in pertinent part: "No modification or waiver of any of the terms hereof shall be valid unless in writing and signed by both parties."
It is true that, generally, such language is a limitation on the court's power. In re Marriage of Thompson, 640 P.2d 279 (Colo.App.1982). However, here, the parties in paragraph 22 of their agreement have further provided, inter alia, that:
"It is expressly understood and agreed that the court shall retain continuing jurisdiction of the parties and the subject matters of child custody, support, and maintenance." (emphasis added)
Thompson, supra, succinctly analyzed the method by which the parties may preclude the court from modifying their agreement relative to maintenance as follows:
"The rule is that a trial court has authority to test a settlement agreement on the standard of present unconscionability and for possible modification of maintenance under two circumstances: If the agreement and the decree reserves that power to the trial court, In re Marriage of Lowery, 39 Colo.App. 413, 568 P.2d 103 (1977), aff'd, 195 Colo. 86, 575 P.2d 430 (1978); or if the agreement and the decree are silent on the power to modify, In re Marriage of Cohen, 44 Colo.App. 200, 610 P.2d 1092 (1980)...." (Citations added)
Thus, while § 14-10-112(6), C.R.S.1973, permits the parties to restrict the jurisdiction of the court to modify the maintenance terms of a settlement agreement, such a restriction must specifically and unequivocally preclude modification. In re Marriage of Thompson, supra; In re Marriage of Cohen, supra; In re Marriage of Lowery, supra...
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Marriage of Udis, In re, 87SC409
...maintenance provision of a separation agreement must be articulated by language that is specific and unequivocal. In re Marriage of Rother, 651 P.2d 457, 459 (Colo.App.1982). The separation agreement entered into by the parties here states that "[n]o modification or waiver of any of the ter......
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Aldinger v. Aldinger
...terms of a settlement agreement, such a restriction must specifically and unequivocally preclude modification. In re Marriage of Rother, 651 P.2d 457 (Colo.App.1982). Here, the agreement provided that no modification of its terms would be valid or binding unless such modification was reduce......
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In re Cerrone
...agreement must be read as a whole, and in context, to determine the meaning of those terms or any others. See In re Marriage of Rother , 651 P.2d 457, 459 (Colo. App. 1982). ¶ 20 Accordingly, we decline to follow Parsons to the extent it holds that a nonmodification clause in a separation a......
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In re Marriage of Cerrone
...... read as a whole, and in context, to determine the meaning of. those terms or any others. See In re Marriage of. Rother, 651 P.2d 457, 459 (Colo.App. 1982). . . ¶. 20 Accordingly, we decline to follow Parsons to the. extent it holds ......
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ARTICLE 10
...maintenance terms of a settlement agreement, such a restriction must specifically and unequivocally preclude modification. In re Rother, 651 P.2d 457 (Colo. App. 1982). Where maintenance provision not modifiable. Where there was no reservation in the trial court of the power to modify a mai......
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ARTICLE 10 UNIFORM DISSOLUTION OF MARRIAGE ACT
...maintenance terms of a settlement agreement, such a restriction must specifically and unequivocally preclude modification. In re Rother, 651 P.2d 457 (Colo. App. 1982). Where maintenance provision not modifiable. Where there was no reservation in the trial court of the power to modify a mai......
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Maintenance in Colorado: Issues and Factors
...marriage, wife employed at time of decree). 44. CRS § 14-10-122(1). 45. Aldinger, supra, note 18. 46. Id.; In re Marriage of Rother, 651 P.2d 457 (Colo.App. 1982) (court held it had jurisdiction to modify maintenance specified in parties' settlement agreement). 47. Fernstrum, supra, note 7.......
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The Continued Jurisdiction of the Court to Modify Maintenance
...note 1 at 1671. 7. Moss v. Moss, 35 Colo.App. 53, 531 P.2d 635, aff'd, 190 Colo. 491, 599 P.2d 404 (1976). 8. In re Marriage of Rother, 651 P.2d 457 (Colo.App. 1982). 9. Sinn, supra, note 1. 10. Woodman, supra, note 1 at 2053. This newsletter is prepared by the Family Law Section of the Col......