Miller v. Miller.

• Decision Date: 05 January 1928
• Docket Number: No. 2877.,2877.
• Parties: MILLERv.MILLER.
• Court: New Mexico Supreme Court

33 N.M. 132

262 P. 1007

MILLER

v.MILLER.

No. 2877.

Supreme Court of New Mexico.

Jan. 5, 1928.

Syllabus by the Court.

Voluntary settlements of the property interests, between the parties, after separation or pending a divorce suit, are lawful.

The court has jurisdiction in an action for divorce upon appropriate pleading to adjust and settle the rights of the parties, and, in doing so, to confirm any agreement of the parties that is just and reasonable, and is not the result of fraud and coercion.

Appeal from District Court, Lincoln County; Ed Mechem, Judge.

Suit by John W. Miller against Lota Miller for divorce and to determine the disposition of community property. From a decree granting plaintiff a divorce and settling property rights, defendant appeals. Affirmed.

Voluntary settlements of the property interests, between the parties, after separation or pending a divorce suit, are lawful.

Geo. W. Prichard, of Santa Fé, for appellant.

H. B. Hamilton, of Carrizozo, and Renehan & Gilbert, of Santa Fé, for appellee.

BICKLEY, J.

The plaintiff below (appellee) commenced suit against defendant (appellant) for divorce and disposition of community property. The complaint alleged abandonment, and that the parties had separated and had settled their property interests. The defendant did not appear in the action, and upon such default the court entered a decree, granting a divorce to the plaintiff and effectuating the property settlement in accordance with the terms of the agreement, as alleged. Some months later the defendant filed a petition and affidavit, in which she recited the fact of the commencement of the suit, the contents of the complaint, and the decree. She also alleged that she did not appear or answer in said cause, “having no attorney to represent her therein, she having been advised by the plaintiff that it was not necessary for her to secure an attorney, as a divorce could be had by mutual consent, and he would do the proper thing by the defendant.” She denied having abandoned the plaintiff. She admitted having received a portion of the money provided for in the decreed property settlement aforesaid, but alleged that plaintiff was delinquent in some of the payments provided for therein. She prayed that plaintiff be required to show cause why he should not be punished for contempt of court for failure to make said payments; that the case be reopened, and she permitted to answer the matters set forth in plaintiff's complaint.

The court sustained defendant's petition, found the plaintiff guilty of contempt, and ordered that he pay to the defendant at once the sum of $150, in accordance with the decree aforesaid, and that upon such payment he stand purged of said contempt, and reopened the case for the taking of proof as to the matters referred to in said petition of the defendant. Defendant thereupon answered the original complaint by way of denial and cross-complaint. Plaintiff replied, denying the affirmative matter set up in said answer and cross-complaint.

The court thereupon heard evidence on behalf of the plaintiff and defendant, and the argument of counsel, and found that plaintiff and defendant were divorced from each other by decree of the court, dated March 29, 1919 (the original decree). The court also found, as in the original decree, that the parties had separated, and had entered into an agreement of property settlement, as alleged in the complaint. The court made some further findings relative to the respective amounts which the parties had contributed to the purchase of certain community property. The court embodied into the decree the provisions of said property settlement, and in addition thereto ordered that the plaintiff pay to the defendant the sum of $200 “in full settlement of all claims of whatsoever nature she may have against said plaintiff on account of any interest she may have had in said property and on account of any alimony.”

So it appears that the court twice adjudicated the property rights of the parties, in accordance with their voluntary settlement thereof, and in the second adjudication decreed to defendant a sum in addition thereto in the nature of alimony in gross. There was no charge made by defendant of any fraud or duress in the procurement of said property settlement. There was no claim by defendant that she was not fully advised of the value of the community property. The property settlement between the parties was clearly made an issue in the case and was...