Torgan v. Torgan

• Decision Date: 24 January 1966
• Docket Number: No. 21262,21262
• Citation: 159 Colo. 93,410 P.2d 167
• Parties: Muriel J. TORGAN, Plaintiff in Error, v. Harold D. TORGAN, Defendant in Error.
• Court: Colorado Supreme Court

Page 167

410 P.2d 167

159 Colo. 93

Muriel J. TORGAN, Plaintiff in Error, v. Harold D. TORGAN, Defendant in Error.

No. 21262.

Supreme Court of Colorado, In Department.

Jan. 24, 1966.

James D. Doyle, Samuel J. Eaton, Denver, for plaintiff in error.

Charles D. Bromley, Denver, for defendant in error.

SCHAUER, Justice.

The parties appear here in the same order as their appearance in the trial court and will be referred to as they there appeared, as plaintiff or defendant, or by name.

This writ of error is directed to a decree of the trial court dated February 3, 1964, based upon findings of fact and conclusions of law relative to a petition of plaintiff for increased support for the two minor children of the parties, and for alimony. The issues were formed by a motion to dismiss the petition, in which the defendant had raised four defenses. The court, in the order referred to, relieved defendant from further payments of alimony to plaintiff, provided for payments by defendant to each of his minor children for their support and education, and dispensed with the Filing of a motion for new trial or for the modification of the decree.

The facts essential to the determination of the issues raised are as follows:

Plaintiff and defendant were married on October 9, 1941. Two children were born as the issuen of the marriage, to wit, John Arthur Torgan and Suzanne I. Torgan, aged eighteen years and sixteen years respectively at the time of the decree referred to.

On July 7, 1949, plaintiff filed a complaint in divorce on the grounds of cruelty, praying for a decree of divorce, the custody of the minor children, with reasonable rights of visitation on the part of defendant, support money for the minor children and alimony for plaintiff, the division of property, attorney fees and costs. On the same date, plaintiff filed a petition for temporary alimony, support money for the children and attorney fees. At a hearing on the same date the court found that both parties had no immediate financial need, but required defendant to pay the sum of $175.00 for the support of the children pending a later hearing.

Defendant answered the complaint, denying the charge of cruelty, denying that plaintiff was a proper person to have the care, custody and control of the children, and denying his ability to pay support money, alimony and attorney fees. As a cross-complaint, he alleged cruelty on the part of plaintiff, and prayed for a decree of divorce, the care, custody and control of the children, with rights of visitation to plaintiff and a division of property. Plaintiff answered the cross-complaint, denying any acts of cruelty on her part.

It is imperative, to a full understanding of the issues now before this court, to set forth in considerable detail the chronology of the protracted litigation involving numerous court hearings and orders. On October 25, 1949, there was a hearing on plaintiff's petition for temporary alimony, etc., filed on July 7, 1949. No alimony was awarded nor specifically denied the plaintiff, the court having theretofore found that plaintiff had no present financial need. The court ordered that defendant pay $160.00 per month for the support of the children until further order and also pay accumulated taxes and bills incurred by the parties.

On April 23, 1951, an interlocutory decree of divorce was granted plaintiff, continuing, in effect the former temporary orders for support money and alimony, and awarding the care, custody and control of the children to plaintiff, subject to reasonable visitation rights by defendant. A final decree of divorce was entered on October 24, 1951, adopting the terms and conditions of the interlocutory decree.

As a result of hearing on April 29, 1953, the court, on May 1, 1953, entered an order determining the property rights of the parties. This order made provision for distribution of the respective interests in the family home, a cabin, two automobiles, payment of taxes, beneficiaries in insurance policies and the payment of premiums thereon, certain interests in stock certificates, and also provided for payment to plaintiff the sum of $160.00 per month 'as alimony for plaintiff and as support of the parties' two minor children.' The same order awarded custody of the children to the plaintiff, provided for visitation rights of defendant, and ordered each party to pay respective attorney fees and costs. This comprehensive order embraced the provisions of a stipulation previously agreed upon by the parties. The court stated:

'In consideration of the Stipulation heretofore entered into in Court as aforesaid and its approval by the Court as herein set forth, it is understood that said Stipulation and this Order shall operate as a full and complete adjustment and final settlement of all property and property rights by and between the above parties, including any rights which the Plaintiff may have for widow's allowance, rights of inheritance and any and all claims and demands of whatsoever kind and nature which each party may have against the other as to their respective property and interests.'

No motion for modification of this order was filed, nor was any action taken to bring the matter or any previous orders before this court.

On April 10, 1959, almost six years subsequent to the order dated May 1, 1953, plaintiff filed her petition for an order requiring defendant to pay to plaintiff the sum of $400.00 per month 'for alimony and support for the parties' two minor children until further Order of this Court.' After an extensive hearing an order was filed on June 24, 1959, the court holding, inter alia, that no alimony was awarded to plaintiff since she had sufficient means to support herself. A motion for a new trial was filed July 6, 1959, asking in the alternative that the court take further testimony or make new findings reducing the child support payments. On July 31, 1959, the court, referring to the June 24 hearing, found that it was for the best interest of the children to remain in the care, custody and control of plaintiff; that defendant was financially able to increase the payments for their support and that no alimony is awarded plaintiff since she has sufficient means to support herself. The court granted defendant visitation rights for specific periods of time and required defendant to pay plaintiff, beginning July 1, 1959, and until further order, the sum of $150.00 per month for the support of each child. Plaintiff filed a motion for a new trial, which was denied.

On August 5, 1963, plaintiff filed a 'Petition for Increased Support,' alleging that the necessary expenses for the care and maintenance of the children and the general expenses of living and education had increased, both children being then in high school. She also stated that her own resources were nearly exhausted and a reasonable amount necessary to maintain herself and the children was $850.00 per month. She asked for an increase to that amount (which sum included alimony for herself).

On October 24, 1963, defendant filed a motion to dismiss the proceedings, his main...