Stephenson v. Stephenson, 17733

• Decision Date: 23 July 1956
• Docket Number: No. 17733,17733
• Citation: 299 P.2d 1095,134 Colo. 96
• Parties: Allen C. STEPHENSON, Plaintiff in Error, v. Cameon Wolfe STEPHENSON, Defendant in Error.
• Court: Colorado Supreme Court

Page 1095

299 P.2d 1095

134 Colo. 96

Allen C. STEPHENSON, Plaintiff in Error, v. Cameon Wolfe STEPHENSON, Defendant in Error.

No. 17733.

Supreme Court of Colorado, En Banc.

July 23, 1956.

Fred M. Winner, William G. Berge, Denver, for plaintiff in error.

John W. Low, William E. Meyers, Denver, for defendant in error.

ALTER, Chief Justice.

Cameon Wolfe Stephenson, plaintiff in the district court and defendant in error here, began this action against Allen C. Stephenson, defendant in the district court and plaintiff in error here, in which she sought an absolute decree of divorce, alimony, temporary and permanent, division of property, attorney fees and costs. We refer to the parties as they appeared in the trial court.

The record discloses that the matter was heard as a non-contested divorce action before Hon. Edward C. Day, who, on July 28, 1952, granted plaintiff an interlocutory decree, and thereafter on January 29, 1953, a final decree of divorce. On August 28, 1953, Hon. Edward C. Day entered an order setting September 23, 1953, for a pretrial conference, and September 30, 1953, as a date for a hearing on 'Property Settlement.' However, no hearings were had pursuant to this order. On April 13, 1954, a hearing on 'Property Settlement' was held before Hon. Joseph E. Cook. Testimony was taken and the so-called depositions of Sally Fern Sykes, Allen C. Stephenson and Jack Wolfe were presented. On March 16, 1955, Judge Cook entered the following order:

'At this day by agreement, the Court will determine Property Settlement on basis of transcript, to be submitted, of hearing on April 13, 1954, and on depositions.'

A transcript of this testimony, together with the depositions mentioned, was the only evidence submitted to Hon. Harold E. Lutz, to whom the matter had been assigned, and upon which he based his order and judgment on the question of division of property.

On April 27, 1955, Judge Lutz, 'having read the evidence given by the parties hereto by way of Reporter's Transcript of their testimony and the testimony of other witnesses, made on the 13th of April, A. D. 1954, and having examined the exhibits introduced on said date' entered his order, judgment and decree on the property division question, to review which the defendant is here on writ of error.

The question of whether a trial court has jurisdiction to decree a division of property after final decree in a divorce action, where no such orders are made or reserved in such final decree, is not raised by the parties in this proceeding, and we make no determination thereof.

The trial court having reached its conclusions and entered its order and judgment on documentary evidence alone, this court is as well qualified to determine the equities involved in this divorce action concerning a division of the property of the parties as was the trial court. Under such circumstances, presumptions in favor of the correctness of the order and judgment do not exist. Conklin v. Shaw, 67 Colo. 169, 185 P. 661; Holbrook Irrigation District v. Fort Lyon Canal Co., 84 Colo. 174, 269 P. 574; Winters v. Pacheco, 88 Colo. 105, 292 P. 1061. It is also settled law in this jurisdiction in divorce matters where a division of property is sought that:

'Division of property between husband and wife in a divorce action must be based upon the situation of the parties at the time of the decree, rather than at the time of their marriage.' Syllabus, Shapiro v. Shapiro, 115 Colo. 505, 176 P.2d 363.

The undisputed evidence discloses that plaintiff and defendant were married on June 6, 1944, and separated on or about June 15, 1951. Since the final divorce decree plaintiff has remarried a third time. The parties owned a residence in joint tenancy in Denver free and clear of all liens and encumbrances, appraised at $17,000, but in which the parties did not reside, except for a period of a few months. They also owned a 1950 Buick automobile. At some period during the married life of the parties, defendant owned a mountain cabin of the value of $300, which he deeded to his widowed mother some two or three years prior to 1951. There is no evidence in the record of any money belonging to defendant on deposit in any bank or in his possession.

Defendant's widowed mother inherited property from her deceased husband and her mother more than twenty-five years prior to 1955. The mother is regularly employed, and her son is her only heir at law. He is a semi-invalid, unable to engage in gainful employment, and resides with his mother in her home in Denver.

Further, the undisputed evidence is that the mother, out of her inheritances and earnings, has purchased stocks and other securities of the value of about $25,000, title to which was taken in the names of herself and her son in order to 'simplify things' in case of her death. The mother also has a bank account which is in both their names for the same...