Richardson v. Richardson

• Decision Date: 17 September 1951
• Docket Number: No. 16475,16475
• Parties: RICHARDSON v. RICHARDSON.
• Court: Colorado Supreme Court

Page 121

236 P.2d 121

124 Colo. 240

RICHARDSON v. RICHARDSON.

No. 16475.

Supreme Court of Colorado, en Banc.

Sept. 17, 1951.

Tom M. Miller, Graham, Tex., John Ira Green, Antonito, H. S. Lattimore, Fort Worth, Tex., for plaintiff in error.

Moses & DeSouchet, Alamosa, for defendant in error.

MOORE, Justice.

Defendant in error, to whom we hereinafter refer as the wife, brought an action for divorce against plaintiff in error, hereinafter designated as the husband. She alleged extreme and repeated acts of cruelty, and that the husband had been an habitual drunkard for more than one year prior to the commencement of the action. She sought a decree of divorce, custody of the three minor children of the parties, support and maintenance for herself and children, and a division of property. Personal service of the summons was had upon the husband in the county where the action was instituted.

Upon the hearing of a motion for temporary orders, filed by the wife, the husband appeared in person and by attorney and gave testimony bearing upon the issues then being considered by the court. The hearing on this motion was held June 10, 1948. The court ordered $225 per month to be paid by the husband for the support and maintenance of the wife and children during the pendency of the action. It further ordered the payment of $350 as a retainer fee to the wife's attorneys, and in order that funds might be provided with which to make said payments, the wife was authorized and directed to execute a chattel mortgage on certain livestock located on the ranch which had been occupied by the parties. The said ranch consisted of 1600 acres, about half of which was pasture land and the balance produces native hay. Title to the ranch stood in the husband. The wife was granted occupancy of the home, and the husband was enjoined from entering the residence. Upon the entry of the order providing this temporary relief to the wife, the husband's attorney asked leave to withdraw his appearance for the husband, but the trial court refused to permit the withdrawal.

On July 2, 1948, the case came on for hearing upon the complaint of the wife, no answer having been filed by the husband. It appears from the record that on this date the husband was lodged in jail in the courthouse building. In the findings of the trial court, the cause of the husband's imprisonment was stated as follows: 'He had been incarcerated by reason of a breach of the peace on threats to kill his wife if she would not join in the sale of their property * * *.' On said date new counsel appeared for the husband in the person of Mr. Allen. Before the entry of the interlocutory decree and prior to the taking of any evidence, the following took place:

'Mr. Allen: I request permission to have my name set down as counsel for John Richardson and we will file no answer and make no protest. If the Court finds that a decree for divorce should be entered that is a matter for the Court.

'The Court: At the last hearing Mr. Green requested leave to withdraw which was not given so we want to keep that straight in the record.

'Mr. Allen: Yes, the defendant is in jail, do you want him present?

'The Court: Well as far as taking him out of jail I won't do it unless he is appearing here and resisting this complaint.

'Mr. Allen: Well we will proceed without him.

'The Court: If you want to file a pleading and contest the issue on the question of divorce he has a perfect right to do so and appear.

'Mr. Allen: I shall not do so. Comes now C. H. Allen and enters his appearance for John T. Richardson, the defendant in a certain divorce action brought by his wife, and states in open Court that he has advised his client not to file an answer or any pleading in this matter at this time.

'Mr. Blickhahn: Shall we proceed?

'The Court: Yes, if he is not making an appearance by pleading he is not controverting anything that is said.

'Mr. Allen: No.

'The Court: Very well, proceed.'

Following the taking of testimony an intorlocutory decree of divorce was entered upon the statutory ground of extreme and repeated acts of cruelty. The order pendente lite was continued in effect and the wife was given general authority to harvest and market the hay crop on the ranch formerly occupied by the parties, and to sue the moneys thus received to apply on indebtedness theretofore existing, or created under the temporary order.

On or about July 10, 1948, the husband was released from jail on a peace bond and forthwith went to the premises occupied by the wife, engaged in some kind of gun play and carried off one of the children. Two separate criminal informations were thereafter filed against him charging him with assault with intent to commit murder and kidnapping. He was admitted to bail on these charges and then left the State of Colorado and went to Texas.

On August 27, 1948, purported lunacy proceedings were had against the husband in Young county, Texas, upon complaint of Charles S. Richardson his brother. The complaint in lunacy was filed; the husband was taken into custody; and six jurors were summoned to hear the case. On the trial, findings were made, and the husband was committed. All of these events took place on the above date.

The findings included the statement by the Texas court that the husband had been an inhabitant of Texas for six months prior to the institution of the proceedings, and that he was not then being held under any criminal charge. The husband was committed to the Wichita Falls State Hospital and it is disclosed in the record that he left the hospital on December 2, 1948, shortly after the opening of the Conejos county district court term where he was to appear by the terms of his appearance bonds in the two criminal cases to which we have hereinabove referred. The husband has not returned to the State of Colorado since that time, nor has he ever complied with any orders which the trial court made, or done anything whatever to make provision for the support and maintenance of the wife and three minor children, the eldest of whom was thirteen years of age at the time of the trial.

Prior to the expiration of six months from the date of the interlocutory decree, and on December 27, 1948, motion to vacate the interlocutory decree was filed on behalf of the husband, in which it was alleged in substance that he was an insane person throughout the pendency of the action and was so dethroned of reason as to be incapable of answering the complaint of the wife; that at the time of the alleged commission of all acts relied upon as grounds for divorce, the said husband was a lunatic and insane person and was not responsible or answerable for his acts; that upon the date of the interlocutory decree he was incarcerated in jail upon an alleged criminal complaint wherein the wife was the complaining party; that the husband was then insane, and known by the wife to be insane, and that the trial of the action 'while the defendant was insane and confined on a criminal charge based upon her complaint all constitutes an inequitable and fraudulent attempt and scheme on plaintiff's part to obtain the property of the defendant consisting of real and personal property in Colorado, valued at $60,000 to $80,000, without a fair and impartial hearing and without just cause and in violation of the due process clause of the Federal Constitution.' It was further alleged in said motion that the husband had been adjudicated an insane person by the county court of Young county, Texas; that said judgment and commitment remained in full force and effect; and that the Colorado court was without jurisdiction to enter the interlocutory decree, 'in that at the time of the purported service of Summons and Complaint on the defendant he was an insane person and so mentally diseased and dethroned of reason as to be incapable of making decisions and did not have any legally appointed representative or conservator in the State of Colorado.'

Hearing on the motion to vacate the interlocutory decree was held on January 29, 1949. On March 29, 1949, the court entered findings upon the said motion, which, after a long narration of the turbulent marriage experiences of the parties, directed that the husband should appear for physical examination by psychiatrists or doctors within the jurisdiction of the trial court, and upon failure of the husband to so appear said motion would be dismissed and denied. The husband failed to submit to such examination, and on April 18, 1949, the motion to vacate the interlocutory decree of divorce was denied. On April 25, 1949, a final judgment and decree of divorce was entered in which was settled the property rights of the parties.

The husband owned rights to receive oil royalties from what is known as the Richardson Trust in Texas. The property operated under said trust consists of oil wells and oil-bearing lands. From such oil royalties the husband had an income of about $9,000 a year at the time of the proceedings in the trial court, and the indications were that said income was steadily increasing. The record of the purported lunacy proceedings in Texas contained a statement that the value of the husband's oil interest in said trust was $75,000. Other evidence before the trial court indicated that it might possible be worth $250,000. The failure and refusal of the husband, or his brothers or any person having actual knowledge of the value of the oil interests, to appear before the trial court and furnish evidence with regard thereto, prevented an accurate determination of the actual worth of that asset. The ranch property, together with the equipment and livestock thereon, was variously estimated to be worth between $45,000 and $80,000. Encumbrances thereon amounted to about $17,500. The wife testified that the purchase price of the ranch was $65,000 and that the cattle were worth...