Schrader v. Schrader
| Decision Date | 29 March 1965 |
| Docket Number | No. 20477,20477 |
| Citation | 156 Colo. 521,400 P.2d 675 |
| Parties | Charles Welby SCHRADER, Plaintiff v. Elaine M. SCHRADER, Defendant in Error. |
| Court | Colorado Supreme Court |
Charles S. Vigil, Denver, for plaintiff in error.
Groves, Dufford, Nelson & Spiecker, Grand Junction, for defendant in error.
Charles seeks a reversal by writ of error of that portion of the divorce decree dealing with alimony, division of property, reimbursement of expenditures made by Elaine for support of herself and the child of the parties, and the custody of the child. It is his contention that there is no justification for the relief granted in these respects, that his estate and possessions should remain totally in him because the trial court granted him the divorce, and that custody of the child should not be awarded to a non-resident wife.
Elaine had sued for separate maintenance on the ground that Charles had been extremely and repeatedly cruel to her. She asked for an accounting of the husband's property, support, court costs, custody of their minor child, and property division. By his answer Charles put in issue the allegation of cruelty, and by counterclaim sought a divorce from Elaine on the ground of cruelty, asking additionally that the custody of the child be awarded to him. In her answer Elaine denied the charge of cruelty.
Pending final disposition, Elaine moved for alimony pendente lite of $100.00 per week and reimbursement of $3,050.00 spent by her for the maintenance of herself and support for their child, the latter sum having been borrowed by her from her mother for their maintenance and for expenses incurred in traveling from Chicago, Illinois to Grand Junction, Colorado in connection with the hearing. In ruling on this motion, the trial court awarded Elaine $250.00 per month temporary support and traveling expenses in the amount of $150.00, but did nothing concerning reimbursement.
Trial without a jury on the matters of separate maintenance and divorce commenced on July 25, 1962, immediately after which the trial court heard evidence relating to the other relief requested by the parties.
It found both parties guilty of cruelty and that each was entitled to the disunion sought, but determined that, under the law, the action for separate maintenance 'is subordinance to and merged in the finding with respect to the divorce.' In its decree, it placed custody of the child in Elaine but made provision for reasonable visitation by Charles; directed Charles to pay $100.00 per month toward the rental of a house in or near Grand Junction for a period of six months, during which time Elaine was to acquire a home for herself and the child, upon which Charles would be required to pay $10,000.00; and required Charles to pay $2,000.00 for furniture and appliances within the said period to equip the home.
The trial court further ordered Charles to pay to Elaine alimony in the sum of $200.00 per month, and support for their child in the sum of $75.00 per month, payments therefor to commence on August 1, 1962. It directed Charles to reimburse Elaine in the sum of $1,500.00 for money which she spent for maintenance of herself and support of the child prior to the institution of the action. It also ordered Charles to pay up to $400.00 for the actual cost of dental work to be performed on the wife.
By its decree, the trial court required Charles to supply Elaine with an automobile, the cost of which was not to exceed the sum of $1,200.00. It allowed an additional attorneys' fee in the sum of $350.00 to Elaine's counsel.
To make the payment of these various sums possible, the trial court authorized Charles to borrow $60,000.00 to be evidenced by a promissory note and secured by a mortgage on all or part of his property, real and personal, and otherwise provisionally enjoined him from any disposition, encumbrance, conveyances, or transfer of his property.
The evidence discloses that Charles is a railroad employee earning from $7500.00 to $8700.00 per year, and that he is the owner of real and personal property consisting of a cattle ranch, stock, peach orchard, farm machinery, and an automobile, all in the approximate net value of $130,000.00.
From the evidence it appears that the farm operation has been operated at a loss over the last several-year period, and as a result Charles has shown on his tax returns net income for the years 1957 through 1960 respectively of $1,390.57, $1,947.06, $2,564.26, and $2,766.78. His losses resulted from the operation of the peach orchard; his gains and losses in the cattle business virtually balanced.
Charles had purchased all the property, real and personal, prior to his marriage to Elaine. The parties were united in marriage on June 1, 1959, had a child on July 11, 1960, and the suit herein was filed on October 12, 1961. At the time of the divorce, Elaine was nearly 39 years and Charles 59 years of age.
Elaine is a registered nurse in Illinois, but not in Colorado. She had worked as a railroad stewardess prior to the marriage and was so employed during the first four months of marriage, earning approximately $400.00 per month. Thereafter she was a housewife and on occasions helped in the operation of the ranch.
Prior to the marriage, Elaine had resided with her mother in Chicago. Charles agreed with Elaine that she should be cared for by her doctor in Chicago, who would know best how to cope with difficulties which developed from her pregnancy and subsequent child-bearing. During the several months that she remained in Chicago, he sent her only $100.00. To meet her expenses there she borrowed from her mother, and at the time of suit she was still obligated to her mother for sums borrowed.
During the pendency of the suit, Elaine and the child lived with her mother in Chicago. She advised the trial court that she would willingly live in Grand Junction, provided Charles would provide a home for them and supply them with necessaries.
Perhaps the best statement epitomizing Charles' position regarding alimony and property division is the following from his initial brief:
'But he does not have an obligation to provide alimony and to divide the property which he accumulated before his marriage with his former wife who is some twenty years younger than he is, and who, without sufficient cause, has seen fit to return to Chicago, Illinois, to live and who has committed acts sufficient in the eyes of the Court to justify the granting of a divorce decree to the father of the child in this case.'
Much of the data in his contention, however, is dispelled by the trial court's findings based upon substantial evidence. That there is evidence which supports the trial court's finding that Charles was guilty of extreme and repeated acts of cruelty toward...
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...and equitable division of property that such distribution be made in exact proportion to contribution of funds. See Schrader v. Schrader, 156 Colo. 521, 400 P.2d 675. "The wife argues that, where the husband has a common-law and statutory duty to support his family under C.R. S.1963, 43-1-1......
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