Simmons v. Simmons, 14698.
| Citation | 108 P.2d 871,107 Colo. 78 |
| Decision Date | 16 December 1940 |
| Docket Number | 14698. |
| Parties | SIMMONS v. SIMMONS. |
| Court | Supreme Court of Colorado |
Rehearing Denied Jan. 6, 1941.
Error to District Court, Kit Carson County; John M. Meikle, Judge.
Action by Florence M. Simmons against Eric G. Simmons for divorce on ground of cruelty. To review a judgment for plaintiff defendant brings error.
Affirmed.
Thornton H. Thomas, Jr., of Burlington, for plaintiff in error.
Sidney P. Godsman, of Denver, for defendant in error.
Action by wife for divorce on ground of cruelty. The husband contested and on the consequent trial to a jury it returned a verdict for the wife. Husband seeks reversal on a writ of error. Reference will be made to the parties as they appeared in the trial court.
A preliminary matter requires disposition. While the cause has been pending here, counsel for the wife filed a motion to dismiss the writ of error on the ground that it was not filed within six months after the issuance of the interlocutory decree. We reserved judgment but now hold against that proposition in accordance with the pronouncement in Pierce v. Pierce, 97 Colo. 39, 46 P.2d 748, 749 wherein we said: 'The practice has been made to conform to that in other civil cases. Session Laws 1933, c. 71, p 441, § 2 ['35 C.S.A. c. 56, § 16]'.
On the merits defendant urges three grounds for reversal: 1. The court had no jurisdiction because plaintiff was not a resident of Colorado. 2. There was no evidence of any acts of cruelty committed in Colorado such as would entitle plaintiff to a decree of divorce. 3. The court erred in its instructions to the jury.
It appears from the record that the parties were married in Kit Carson county, Colorado, March 1, 1926, and almost immediately thereafter moved to Kansas where they engaged in farming for about nine years, and during which time four children were born. In the fall of 1935, they discontinued farming and went into the restaurant business. They jointly conducted restaurants in several towns in Kansas until just prior to the commencement of this suit, when plaintiff was operating one at Haddam, Kansas, and defendant one at Clyde, Kansas. These towns were sufficiently near each other to permit of cooperation in the maintenance of the two restaurants. Near-beer was sold in both places of business and parties were given by plaintiff and defendant at which the participants indulged in the drinking of alcoholic liquors. Plaintiff began keeping company with other men, not necessarily in an improper manner, but, at least, to the extent that her husband felt constrained to speak to her concerning it, and on two occasions he engaged in fights with one man who, he alleged, was too attentive to his wife.
About September 1, 1936, plaintiff sold the restaurant at Haddam and returned with one of their children to the home of her parents in Flagler, Colorado--the other two children having previously gone there to be with their grandparents. She left a note for her husband informing him that she did not intend to return. She made the journey to Colorado by train. Defendant, upon reading the note, immediately started for Colorado by automobile, arriving in Flagler ahead of the train and was at the station with his mother-in-law when plaintiff arrived. He pleaded with plaintiff to return to Kansas with him, but she refused saying she intended to remain with her parents for at least a year and rest up. Shortly thereafter defendant returned to Kansas. He came back to Flagler about the first of November, 1936, remaining about ten days. Commenting on this last visit, plaintiff testified on direct examination: ...
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