Smith v. Smith

• Decision Date: 20 May 1940
• Docket Number: 14522.
• Citation: 106 Colo. 205,103 P.2d 11
• Parties: SMITH v. SMITH.
• Court: Colorado Supreme Court

103 P.2d 11

106 Colo. 205

SMITH v. SMITH.

No. 14522.

Supreme Court of Colorado

May 20, 1940

In Department.

Error to District Court, City and County of Denver; Henry S Lindsley, Judge.

Suit for divorce by Elfreda M. Smith against Norman B. Smith wherein the plaintiff received a final decree of divorce and was awarded custody of two minor children and a certain sum as support and maintenance for the children. Thereafter, the plaintiff applied for additional support money, and the defendant filed a cross-complaint. From a judgment denying the plaintiff's application, she appeals.

Judgment reversed.

Bryan L. Whitehead, of Denver, for plaintiff in error.

John F Mueller, of Denver, for defendant in error.

HILLIARD Chief Justice.

A proceeding in which plaintiff in error applied for additional support money for her minor children. The application was denied.

August 14, 1934, plaintiff in error received a final decree of divorce from defendant in error, and was awarded the custody of their two minor children. Defendant in error, who was employed by a railway company at a salary of approximately $150 per month, was ordered to 'pay the sum of thirty-five dollars each and every month as support and maintenance for the two minor children so long as plaintiff is employed.'

The petition here, filed March 13, 1937, alleged, first, that the needs of the children had increased; and, second, that defendant's financial condition was better than when the original order was issued. March 31, 1937, defendant filed an answer and cross complaint alleging that the children were being cared for by the mother of plaintiff in error, while the latter was living apart from them, and that only a part of the money paid by defendant was used for their support. He further alleged that he was heavily indebted and was unable to pay the sum already ordered and asked for a reduction. A replication filed April 22, 1937, denied some of these allegations, admitted others, and alleged additional facts.

In a hearing June 14, 1937, Before Judge Stanley H. Johnson, it was ordered that instead of $35 per month, as originally ordered, defendant in error should pay an amount equal to thirty-five per cent of his earnings per month for support of the children, plus five per cent of his earnings toward discharge of arrearages, found to be $127. The case was then continued, and when it was next reached Judge Johnson had been succeeded by Judge Henry S. Lindsley in that division of the court, and the final hearing, considered by the parties as a continuation of the former one, was held May 7, 1938.

The record shows that defendant in error's salary had increased from $150, as it was when the divorce was granted to somewhat in excess of $160 per month. The court found that his earnings for the period between June 14, 1937, and May 7, 1938, were $1,152.64, during which he paid into the registry of the court $368.82, or $34.50 less than thirty-five per cent of his earnings, and had paid nothing on the arrearage of $127 found by Judge Johnson, to the discharge of which he had been ordered to pay the additional five per cent of his earnings, as above stated. It further appeared that defendant enjoyed some income from miscellaneous sources; but since the order only required him to pay from his earnings, and not from his total income, defendant contended that the additional income should not have consideration. The trial court did not specifically pass upon this contention.

It seems important to observe that although given the right to visit his children, defendant does not avail...