Matt v. Matt

• Decision Date: 27 January 1947
• Docket Number: 15739.
• Citation: 115 Colo. 589,178 P.2d 419
• Parties: MATT v. MATT.
• Court: Colorado Supreme Court

178 P.2d 419

115 Colo. 589

MATT v. MATT.

No. 15739.

Supreme Court of Colorado, in Department.

January 27, 1947

Error to District Court, City and County of Denver; William A Black, Judge.

Action for divorce by Edward M. Matt against Marie Matt.Judgment was rendered granting plaintiff a final decree and thereafter defendant filed a motion for modification of that part of the decree respecting property settlement between the parties.To review certain provisions of the decree respecting property settlement, plaintiff brings error and the defendant assigns cross-error and both parties request a supersedeas.

Affirmed in part and reversed in part and remanded for further proceedings.

George O. Bakke, of Denver, for plaintiff in error.

Bernard B. Carraher and Gregory A. Mueller, both of Denver, for defendant in error.

STONE Justice.

Plaintiff in error, Edward M. Matt, plaintiff below, and defendant in error, Marie Matt, defendant below, were formerly husband and wife and owned their home in joint tenancy.After violent disagreement one evening, they discussed a property settlement and a question of support of their minor daughter Synda Lu, with the result that plaintiff dictated, and defendant wrote in pencil, the following memorandum of agreement:

'I hereby agree to turn over the home located at 1210 Bellaire Street, Denver, Colorado, and I'm to finish the payments in four years and in the event that my wife marries the house goes to Synda Lu, Daughter, under our guardianship.

'I will pay Marie Matt $1,000.00 (one thousand dollars) plus all payments on the home at 1210 Bellaire, plus attorney fees, plus $40.00 a month for the support of Synda Lu Matt.

'We relinquish any personal interest in each other's personal affairs.

'The Walgreen Pension Fund remains in Marie Matt's name.In the event Marie Matt marries, the Pension Fund reverts to Synda Lu Matt and in the event of my death I will leave a Will.

'I leave the full custody of daughter, Synda Lu Matt, to her mother, Marie Matt.

'Signed August 17, 1944.

'Marie Matt

'E. M. Matt'.

Promptly thereafter, plaintiff's attorney instituted the action for divorce and prepared a typewritten memorandum of agreement of similar import to the penciled one except that the first paragraph thereof provides as follows:

'That the party of the first part agrees to turn over to the party of the second part, family residence located at 1210 Bellaire Street in the City and County of Denver, more specifically described as: Lots Twenty-One (21) and Twenty-Two (22) Block Four (4), Bellview Park Addition: together with all the furnishings therein and to keep up the monthly payments due thereon at the Denver National Bank under a F. H. A. Loan; the balance being $3,989.23; until such time as the present indebtedness due thereon shall be paid in full.The title to said premises shall remain in joint tenancy in the names of the parties to this agreement, but in the event of the remarriage of either party, then and in that event said party so remarrying shall convey forthwith his or her interest to the infant child of the parties hereto, Synda Lu Matt.

'The party of the second part agrees to pay all taxes and assessments, repairs, and water rent as they become due, so long as she remains in the said premises.'

On August 21defendant signed acceptance of service of summons in the action for divorce and also signed the typewritten memorandum, paragraph one of which has been hereinabove set out, at the office of her husband's attorney.She filed no answer in the action, and when it was reached for trial made no appearance.The attorney appointed by the court to represent defendant was not personally acquainted with her.He telephoned to her at her place of employment and she advised him that she did not care to contest the case; and that they had made a satisfactory property settlement.The final decree, entered in apt time thereafter, was made and entered upon the terms and conditions contained in the typewritten memorandum.

Defendant remarried, and thereupon quitclaimed her interest in the home to the daughter and demanded that plaintiff likewise convey his interest.Standing on the terms of the decree, he refused, and some six months after entry of the final decree, defendant filed motion for its modification to conform to the original penciled memorandum on the ground that it, and not the typewritten instrument, set out the true understanding and agreement of the parties.

On answer filed the matter was heard and evidence taken Before the trial court which found that the parties entered into the written agreement August 17, 1944, and that there was no meeting of the minds of the parties in modification of that agreement.Accordingly, it was ordered by the court that plaintiff convey his title and interest in the home property to the minor daughter; and it appearing that upon her remarriage the defendant and daughter had moved from the home property and that it was being rented, it was further ordered that the mortgage payments on the property be paid out of the rents and any balance of rent be held in trust in the estate for the support and education of the minor child.

Plaintiff in error here seeks reversal insofar as he is required to make conveyance of his one-half interest in the home to the minor daughter, and defendant in error by cross specification asks that the order of ...