Stovall v. Crosby, 22296

• Decision Date: 02 February 1970
• Docket Number: No. 22296,22296
• Citation: 464 P.2d 868,171 Colo. 70
• Parties: Barbara A. STOVALL, formerly Barbara A. Crosby, Plaintiff in Error, v. Charles D. CROSBY, Defendant in Error.
• Court: Colorado Supreme Court

Page 868

464 P.2d 868

171 Colo. 70

Barbara A. STOVALL, formerly Barbara A. Crosby, Plaintiff in Error, v. Charles D. CROSBY, Defendant in Error.

No. 22296.

Supreme Court of Colorado, In Department.

Feb. 2, 1970.

Rothgerber, Appel & Powers, Ira C. Rothgerber, Jr., Denver, for plaintiff in error.

Martin P. Miller, Littleton, for defendant in error.

HODGES, Justice.

The parties were divorced in 1962. The divorce decree incorporated the terms of an agreement between them as to alimony, child support and division of property. The plaintiff in error was the plaintiff in the trial court. The divorce decree awarded her the custody of the children. In 1963, the plaintiff was married to Mr. Stovall at which time her right to alimony terminated. Since then, she has, on several occasions, filed petitions seeking modifications and clarifications of the agreement.

The portion of the agreement which was the principal subject matter of various hearings in the trial court, concerns the provision that the defendant convey to the plaintiff certain real property under lease to the U.S. Post Office Department in Englewood, Colorado. The agreement provided that the defendant would furnish managerial services for this property at no expense to the plaintiff, and that from the lease income, he would pay various expenses including principal and interest payments on an existing encumbrance upon which he was liable. He would then account to the plaintiff for the net balance. The agreement further provided that upon receiving the conveyance, the plaintiff would not permit the property to be further encumbered; that she would not sell the property without the 'reasonable consent' of the defendant; that she would devise the property to their two children; and that this property would not be considered part of her estate.

On December 12, 1963, the plaintiff filed a petition in the trial court seeking, among other things, an order terminating the defendant's management of the post office property and an accounting. After a hearing on this petition held in April 1964, the trial court found that there had not been established any valid reason to justify the defendant's removal as manager of this property and that he had managed it diligently and efficiently. Although the trial court declined to terminate the defendant's management, it did order the defendant to make quarterly reports to the plaintiff concerning his management of this property and to establish a trust account for the management of this property.

Thereafter on September 8, 1964, plaintiff filed two petitions. In the first petition, she sought a contempt citation against the defendant on the grounds that he had failed to make quarterly reports and that he had failed to establish a trust account as required by the previous court order. On the same grounds, plus alleging that if the plaintiff would manage the property certain inconveniences would be avoided, the plaintiff in the second petition again asked the trial court for:

'An order relieving the defendant of his right to manage the United States Post Office building owned by plaintiff located in Englewood, Colorado, and requiring defendant to make a final accounting to plaintiff of all monies received by him for rents received during his management of said property and all expenses incurred in connection therewith, and requiring him to pay over and deliver into plaintiff the balance of any funds to which plaintiff is entitled upon said accounting, and that such accounting be had and made under the supervision, direction and control of this Court.'

In both of these petitions, the trial court was also requested by the plaintiff to order the defendant to pay her attorney's fees and costs incurred in presenting and prosecuting these petitions.

A series of hearings on these petitions was held. After the intitial hearing, the trial court directed that an audit be made of the defendant's management of the post office property by an accountant and that that cost thereof be borne by the property management account. The audit was made, and after several hearings, where evidence was introduced and testimony taken, the trial court took the matters in controversy under advisement. On December 15, 1965, the trial court made its findings of fact and conclusions of law, and insofar as pertinent to this writ of error, made the following determinations:

(1) '* * * The Court finds that defendant is skilled and experienced in the management of the subject post office and has managed the property diligently and efficiently in the past. The evidence does not support plaintiff's allegations set forth in her petition and bill of particulars that defendant defaulted in the management of the post office building in the performance of his duties or that defendant's right to manage said post office is not justified in fact or in law.'

(2) 'The Court further finds that the evidence is insufficient to establish that defendant wilfully failed and refused to obey the orders of Court as set forth in the petition of plaintiff for a contempt citation and the contempt citation ought therefore to be discharged. * * *'

(3) 'The Court further finds that the evidence fails to establish that the plaintiff ought to be awarded attorney's fees in connection with the matters presented to the Court.'

The trial court thereupon entered its judgment in accordance with the above findings. From the trial court's findings and judgment, with reference to the three matters itemized above, the plaintiff prosecutes this writ of error and urges that we reverse the trial court's determination as to these...