Schleiger v. Schleiger, No. 18087

Docket NºNo. 18087
Citation137 Colo. 279, 324 P.2d 370
Case DateApril 14, 1958
CourtSupreme Court of Colorado

Page 370

324 P.2d 370
137 Colo. 279
Mary SCHLEIGER, Plaintiff in Error,
v.
John SCHLEIGER, Defendant in Error.
No. 18087.
Supreme Court of Colorado, En Banc.
April 14, 1958.
Rehearing Denied May 5, 1958.

[137 Colo. 280]

Page 371

Houtchens & Houtchens, Greeley, Paul E. Garrison, Greeley, for plaintiff in error.

Joseph L. Morrato, Boulder, Norman H. Comstock, Denver, for defendant in error.

SUTTON, Justice.

The parties are here in reverse order of their appearance in the trial court and we will refer to them as they there appeared.

After a trial to the court, upon issues raised by his complaint in divorce alleging mental cruelty, and defendant's answer and cross-complaint denying cruelty and alleging cruelty and non-support by way of recrimination, plaintiff was granted a decree of divorce. In a prior action between these parties defendant was given a decree of separate maintenance from plaintiff.

Trial of the divorce action was to the court without [137 Colo. 281] the presence of a court reporter, both parties appearing in person and by counsel. Decree was entered and subsequently motion for new trial was filed, arrgued and denied.

Among the cross claims alleged by defendant was one that 'Plaintiff is in default in payments ordered under the terms of said separate maintenance decree in an amount in excess of $4,000.00.' Defendant asserts here that there was evidence before the trial court showing the attempted re-marriage of plaintiff prior to the granting of the decree in question. Nothing appears in defendant's answer and cross-complaint relating to such charge.

Three major grounds are urged for reversal, which can be summarized as follows:

1. That the trial court erred in not making express written rulings on defendant's defenses:

2. That the trial court erred in not making express written rulings on permanent alimony before entering the interlocutory decree:

3. That the trial court erred in refusing defendant a new trial on the ground that no reporter was present below and thus no record of the evidence was preserved for review by writ of error in this court.

The pleadings, including a bill of particulars filed by plaintiff, indicate that if the grounds for divorce alleged by plaintiff were sustained by proper evidence, and, if defendant failed to show by proper evidence

Page 372

that the doctrine of recrimination should apply, then the plaintiff would be entitled to the decree entered in his favor.

In the trial of a divorce case to the court without a jury wherein defendant pleads grounds for divorce by way of recrimination, the issue is the guilt or innocence of the parties of the grounds alleged against each other in their respective pleadings. Finding by the trial court, contained in the decree pursuant to statute, that plaintiff ought to be granted a divorce on the grounds of [137 Colo. 282] cruelty is necessarily a finding of the issues in favor of plaintiff and against defendant. The credibility of the witnesses is to be determined by the trial court, and when the court found in favor of plaintiff it necessarily resolved the weight of the testimony in his favor and against the defendant. Pierre v. Pierre, 120 Colo. 542, 544, 212 P.2d 105.

In the Pierre case, however, there was a record before the supreme court showing sufficient evidence to support the finding which this court refused to disturb, it being exclusively within the province of the trial court to determine the facts.

In Walton v. Walton, 86 Colo. 1, 6, 278 P. 780, 781, where a decree had entered in favor of defendant this court said:

'* * * Before the court could enter its findings in favor of the defendant, it must necessarily have found that the defendant had not been guilty of a violation of the marriage contract. * * *'

In the instant case where the...

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13 practice notes
  • Custody of C.C.R.S., In re, No. 92CA1142
    • United States
    • Colorado Court of Appeals of Colorado
    • November 18, 1993
    ...by evidence in the record, since no trial transcript has been certified as a part of the record on appeal. See Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370 The mother first argues that petitioners lacked standing to seek custody under § 14-10-123 of the Uniform Dissolution of Marriag......
  • Cordillera Corp. v. Heard, No. 78-576
    • United States
    • Colorado Court of Appeals of Colorado
    • November 30, 1978
    ...an attorney's implied authority, and with regard to such matters the client is bound by his attorney's actions. Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370 (1958). Plaintiff's filing of the complaint constituted an offer to waive both the arbitration clause and the requirement that ......
  • People in Interest of P.N., No. 83SA106
    • United States
    • Colorado Supreme Court of Colorado
    • May 9, 1983
    ...(1978). A litigant is bound by the choice of litigation procedures and tactical decisions made by his attorney. Schleiger v. Schleiger, 137 Colo. 279, 324 Page 257 P.2d 370 (1958). In the absence of a showing of incompetence on the part of trial counsel, the client is bound by the decisions......
  • In re Marriage of Yates, No. 04CA1310.
    • United States
    • Colorado Court of Appeals of Colorado
    • June 29, 2006
    ...during the progress of a trial, and his client is bound by his actions with respect to matters of procedure. Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370 (1958). Thus, husband's attorney had authority to enter into an agreement regarding the amount of time to be allowed to each party......
  • Request a trial to view additional results
13 cases
  • Custody of C.C.R.S., In re, No. 92CA1142
    • United States
    • Colorado Court of Appeals of Colorado
    • November 18, 1993
    ...by evidence in the record, since no trial transcript has been certified as a part of the record on appeal. See Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370 The mother first argues that petitioners lacked standing to seek custody under § 14-10-123 of the Uniform Dissolution of Marriag......
  • Cordillera Corp. v. Heard, No. 78-576
    • United States
    • Colorado Court of Appeals of Colorado
    • November 30, 1978
    ...an attorney's implied authority, and with regard to such matters the client is bound by his attorney's actions. Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370 (1958). Plaintiff's filing of the complaint constituted an offer to waive both the arbitration clause and the requirement that ......
  • People in Interest of P.N., No. 83SA106
    • United States
    • Colorado Supreme Court of Colorado
    • May 9, 1983
    ...(1978). A litigant is bound by the choice of litigation procedures and tactical decisions made by his attorney. Schleiger v. Schleiger, 137 Colo. 279, 324 Page 257 P.2d 370 (1958). In the absence of a showing of incompetence on the part of trial counsel, the client is bound by the decisions......
  • In re Marriage of Yates, No. 04CA1310.
    • United States
    • Colorado Court of Appeals of Colorado
    • June 29, 2006
    ...during the progress of a trial, and his client is bound by his actions with respect to matters of procedure. Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370 (1958). Thus, husband's attorney had authority to enter into an agreement regarding the amount of time to be allowed to each party......
  • Request a trial to view additional results

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