Thum v. Thum, 14581.

• Citation: 105 Colo. 352,98 P.2d 279
• Decision Date: 26 December 1939
• Docket Number: 14581.
• Parties: THUM v. THUM.
• Court: Supreme Court of Colorado

98 P.2d 279

105 Colo. 352

THUM v. THUM.

No. 14581.

Supreme Court of Colorado

December 26, 1939

Rehearing Denied Jan. 22, 1940.

In Department.

Error to District Court, City and County of Denver; Joseph J Walsh, Judge.

Suit by Kathleen C. Thum against Otto B. Thum to enjoin defendant from prosecuting divorce action against plaintiff so far as action was based in whole or in part on any occurrence prior to execution of separation agreement into which parties had entered, and for judgment for payments due on the separation agreement. To review judgment for plaintiff, the defendant brings error.

Reversed.

John T. Dugan, Richard F. Ryan, and Nathan I Golden, all of Denver, for plaintiff in error.

John J Morrissey, Charles T. Mahoney, and William H. Scofield, all of Denver, for defendant in error.

YOUNG Justice.

The parties to this proceeding are husband and wife. The husband had commenced a suit for divorce against the wife in the district court of the City and County of Denver. The wife instituted an action in the same court to enjoin the husband from prosecuting the divorce action in so far as it was based in whole or in part on any occurrence prior to the execution of a separation agreement into which they had entered September 9, 1935. The district court having found in her favor in the injunction case, the wife by supplemental complaint asked for judgment against the husband for payments due and owing her to the date of the filing of her supplemental complaint on the separation agreement. She further asked that the court enter an order requiring the defendant to make the $25 weekly payments thereafter to become due in accordance with the terms of said separation agreement. The district court entered its decree prohibiting the husband from prosecuting the divorce action, which he theretofore had instituted, on any occurrences antedating September 9, 1935, awarded the wife the $1,225 for which she prayed in her supplemental complaint, and ordered that the $25 payments be made thereafter as they fell due in accordance with the terms of said agreement. The husband seeks a reversal of this judgment. The wife will be so designated or as plaintiff, and the husband as such or as defendant, as they appeared in this action in the district court.

A recital of the sordid details of the domestic difficulties extending over more than a quarter of a century, would serve no useful purpose in this opinion. The separation agreement recited the existence of such difficulties and among other things provided that the husband would not demand a resumption of the marital relationship and that, having in mind the religious convictions of the wife, he would not bring or cause to be brought an action for divorce from her on any grounds then known to him, and that the differences giving rise to the separation should not be considered to constitute a cause or causes of action for divorce. Subsequent to entering into this agreement the defendant made the payments until the time of the institution by him of the divorce action, which was predicated upon the grounds of cruelty and desertion. In his cause of action based on cruelty the husband set up numberous instances of alleged cruelty which occurred prior to September 9,...