Talbot v. Talbot

• Decision Date: 10 August 1964
• Docket Number: No. 21004,21004
• Citation: 155 Colo. 350,394 P.2d 607
• Parties: Verna Louise TALBOT, Plaintiff in Error, v. Floyd Hugh TALBOT, Defendant in Error.
• Court: Colorado Supreme Court

Page 607

394 P.2d 607

155 Colo. 350

Verna Louise TALBOT, Plaintiff in Error, v. Floyd Hugh TALBOT, Defendant in Error.

No. 21004.

Supreme Court of Colorado, En Banc.

Aug. 10, 1964.

R. George Silvola, Colorado Springs, for plaintiff in error.

No appearance for defendant in error.

PRINGLE, Justice.

We will refer to the plaintiff in error as Verna and to the defendant in error as Floyd.

Verna filed a complaint in divorce against Floyd and shortly thereafter the parties entered into an agreement which provided in pertinent part that Verna should have the custody of their minor children and that Floyd should make support payments in the amount of $50.00 per week commencing on October 24, 1960 and continuing thereafter until each child had married, reached maturity or become self-supporting. The child support payments were to be paid into the regisitry fund of the trial court. This agreement was 'approved' by the trial court several days after it was executed.

On March 30, 1961 the trial court entered a decree of divorce and ordered that Verna was to have custody of the children and that Floyd was to make child support payments of $50.00 per week until further order of the court. No reference was made in the decree to any agreement of the parties. No review of this decree was sought.

On April 21, 1961 Verna filed a 'Motion for Citation for Contempt of Court' wherein she alleged, in pertinent part, that Floyd was in default in the total amount of $1,100.00 for child support. This motion came on for hearing and the trial court, on October 23, 1961, held Floyd in contempt and found that the amount of child support in arrears to October 23, 1961 was $2,130.00. Floyd was given one year in which to bring all back payments up to date.

On April 4, 1962 Verna filed a second 'Motion for Citation for Contempt of Court' wherein it was alleged that since the order of October 23, 1961 Floyd had paid only $160.00 into the registry fund of the court and that the total amount of child support payments in arrears was $3,170.00. To this motion Floyd filed a 'Motion to Quash Citation for Contempt, Reduction of Support Payments and for an Accounting.' In this motion, Floyd alleged that he had relied on Verna's counsel from the inception of the proceedings; that he had advised Verna's counsel that he did not have sufficient earning capacity to justify the payment of $50.00 per week child support and that said counsel advised that whatever he and Verna agreed upon would be all that he would be required to pay and that it would not be necessary to change the court order to conform to such agreement; that he and Verna agreed that $30.00 per week was a reasonable and adequate amount of child support; that he had paid an amount equal to $30.00 per week every week since March 30, 1961 either into the registry fund of the court or directly to Verna and that Verna apparently failed to advise the clerk of the court of those payments made directly to her; that his gross earnings were from $80.00 to $100.00 per week and that his living expenses averaged $225.00 per month and that he did not have sufficient income to make payments of $50.00 per week and maintain himself; that Verna had remarried (shortly after securing the divorce) and that the reasonable requirements and needs of the children could be satisfied by payments of $30.00 per week.

After a hearing at which both parties presented evidence, the trial court quashed the citation for contempt but denied any reduction in support payments and an accounting. This action of the trial court occurred on January 30, 1963. Thereafter, Floyd filed a motion for new trial, asserting that the 'overwhelming' evidence introducted at the hearing showed that (1) the original order of court for child support was based upon an agreement entered into by Floyd without counsel constituting fraud in the inducement, and (2) that the original order was inequitable and beyond the ability of the defendant to pay, compelling a reduction in child support payments. On February 15, 1963, Verna filed a 'Motion for Judgment on Arrearage' asserting that the amount of Floyd's default was readily ascertainable from the orders of the court already entered.

On April 30, 1963 the following judgment was entered by the trial court:

'This matter having been taken under advisement without argument of Counsel upon the Plaintiff's motion for entry of judgment and Defendant's motion for reduction of...