Walton v. Walton, 12200.

Docket Nº12200.
Citation86 Colo. 1, 278 P. 780
Case DateMarch 04, 1929
CourtSupreme Court of Colorado

278 P. 780

86 Colo. 1

WALTON
v.
WALTON.

No. 12200.

Supreme Court of Colorado, En Banc.

March 4, 1929


Casemaker Note: Portions of this opinion were specifically rejected by a later court in 365 P.2d 701

Rehearing Denied June 10, 1929.

Error to District Court, City and County of Denver; George F. Dunklee, Judge.

Divorce suit by James B. Walton against Lillian M. Walton, in which defendant filed a cross-complaint, and in which defendant was awarded findings of fact and conclusions of law. Judgment was entered, after six-months period had expired, decreeing that divorce be granted defendant over her express objection, and she brings error.

Reversed and remanded, with instructions.

Butler, J., dissenting.

for divorce, although the wife may be entitled to a decree, it is optional with her whether she will exercise the right. She cannot be compelled to do so, and this is true even though her reasons for refusing are entirely mercenary.

[86 Colo. 3] H. A. Lindsley, of Denver, for plaintiff in error.

Wright & Ireland, of Denver, for defendant in error.

ALTER, J.

This is an action for divorce, in which the defendant in error, James B. Walton, hereinafter referred to as plaintiff, filed a complaint charging his wife, Lillian M. Walton, the plaintiff in error, hereinafter referred to as defendant, with cruelty and desertion. The defendant filed her answer, denying the charges of cruelty and desertion, [86 Colo. 4] and also filed a cross-complaint, charging the plaintiff with adultery, and prayed a decree of separate maintenance. The plaintiff filed an answer to the cross-complaint, denying the allegations thereof.

The case was called for trial, a jury was [278 P. 781] sworn therein, and upon leave of court so to do the plaintiff withdrew his complaint. The defendant was permitted to amend her cross-complaint, by prayer for divorce. The jury was discharged, with the consent of the parties, and the case proceeded to trial before the court as a noncontested matter. The defendant was awarded findings of fact and conclusions of law, and certain orders were made, upon stipulation of the parties, with respect to a settlement of their financial affairs, and incorporated in said findings.

The defendant subsequently filed a motion to set aside the findings of fact and conclusions of law, to which the plaintiff filed an answer, in which he joined in a request of the defendant that 'the cause be set down for hearing and trial, * * * including the terms of alimony,' and also prayed that a decree of divorce be granted the defendant; the six-months period, subsequent to the signing and filing of the findings of fact and conclusions of law, having fully expired.

The court, upon hearing the defendant's motion and pleadings thereto, made certain modifications with respect to the financial arrangements of the parties, and also granted, upon application of the plaintiff, and over the express objection of the defendant, the decree of divorce.

The defendant was dissatisfied with the trial court's action: (1) In modifying its former orders respecting the payments to be made for the support of herself and the two minor children; and (2) in granting the decree of divorce upon the application of the plaintiff. To review this action, the defendant brings the cause to this court.

[86 Colo. 5] 1. The trial court, in its findings of fact and conclusions of law, adopted, and incorporated therein, the financial arrangement of the parties to this action. Subsequently, at a hearing, the court found that the plaintiff, by reason of changed conditions, without his fault, was unable to continue the payments required of him by court order, and accordingly reduced the same, as to sums for alimony and support money payable in the future, and in all other respects confirmed the financial arrangements made by the parties themselves.

We held, in Stevens v. Stevens, 31 Colo. 188, 189, 72 P. 1061, that 'by virtue of the general equity powers of a court granting a divorce * * * such court has the authority to modify the decree relative to alimony payable in the future.' We also held, in Jewel v. Jewel, 71 Colo. 470, 472, 207 P. 991, that 'a court of equity by virtue of its general powers has authority to modify a decree relative to alimony, when changed circumstances make it just and necessary.' And we held, in Diegel v. Diegel, 73 Colo. 330, 332, 215 P. 143, 144, that 'the court rendering a decree of divorce retains jurisdiction to modify provisions thereof relating to alimony, division of property or a money judgment. Its jurisdiction is continuous.'

The law, as thus announced, has been consistently followed since the Stevens Case, supra, and, while we are mindful that these cases deal directly with decrees, the reason for making it applicable to findings of fact and conclusions of law impress us with equal, if not greater, force. Therefore the trial court had jurisdiction to hear and determine the question of future payments, and also to make any modification with respect thereto warranted by the evidence. Its determination thereof is binding upon us, unless a reading of the record discloses that the trial court abused its discretion, and this we do not find.

[86 Colo. 6] 2. The court below, in granting a decree of divorce to the defendant, upon application of the plaintiff, proceeded under the provisions of an amendatory act of the Legislature (chapter 90, Session Laws of Colorado 1925), which reads as follows: 'If the findings of fact and conclusions of law have not been set aside within six months from the day on which they were filed, and no motion to set them aside remains unheard and undecided, the court shall grant a divorce to the party entitled thereto upon the application or motion of either party to said suit or action, according to the said findings of fact and conclusions of law.'

It will be observed that the amendment is mandatory in its terms, does not permit the court to exercise any discretion whatever, and requires the court, under the conditions mentioned therein, to 'grant a divorce to the party entitled thereto upon the application or Motion of either party to said suit or action.' It should be remembered that, in the instant case, the husband, who was the plaintiff in the divorce action, had been found guilty of a violation of his marital obligations to such as extent as to justify the court below in finding that the defendant, upon her cross-complaint, was entitled to be forever relieved from the marriage contract. Before the court could enter its findings in favor of the defendant, it must necessarily have found that the defendant had not been guilty of a violation of the marriage contract. It must also be remembered that the defendant strenuously objected to the court's action in granting the decree.

The question naturally arises: Is the innocent party, under such circumstances, compelled to accept a decree of divorce because the guilty party desires that one shall be entered? The answer to this depends upon whether or not (a) the Legislature may require a court of equity to grant and issue its decree upon application of the guilty party; (b) the act mentioned (chapter 90, Session [86 Colo. 7] Laws 1925) is in violation of article 3 of the Constitution of the state of Colorado; and (c) the amendatory act is a matter of procedure, and, if so, does it fall within the provisions [278 P. 782] of section 444, Code of Civil Procedure, and section 5630, C. L. of Colorado 1921.

(a) Section 5547, Compiled Laws of Colorado 1921, provides: 'Marriage is considered in law a civil contract, to which the consent of the parties is essential.'

In the case of Stebbins v. Anthony et al., 5 Colo. 348, 349, we find the doctrine announced that, 'while there are some adjudications to the effect that an action of divorce is a purely statutory proceeding, we think the weight of authority opposed to this view, and that the jurisdiction of the equity tribunals has generally been asserted and maintained in this country in the absence of statutes as well as under them.'

An examination of the authorities in this jurisdiction discloses the fact that the doctrine laid down in the Stebbins Case, supra, has since been consistently maintained, and therefore all courts, in entertaining jurisdiction of divorce matters, do so while under their equity powers.

In the case of Gilpin v. Gilpin, 12 Colo. 504, 519, 21 P. 612, 617, we find the following language: 'Society, the public, the commonwealth, have an interest in the preservation of the marriage relation. In an important sense it may well be said there are three parties to every divorce proceeding, the husband, the wife, and the state, and in some instances a fourth, the children.' Also at page 511 of 12 Colo. (21 P. 614) we find: 'The laws of the state specify many causes for which divorces are allowed. In the opinion of many good people the family household may be thereby too easily broken up and destroyed. The institution of marriage lies at the foundation of our civilization. It is the safeguard of education and true religion, the promoter of public and private morals, and the conservator of social order. Public policy favors the continuance [86 Colo. 8] of the marriage relation, and the courts should not lend their influence to dissolve the same except in obedience to strict law. It does not follow because a married person has a legal ground of divorce that he or she is bound to assert the same in the courts, either as plaintiff, or as defendant by way of cross-complaint.'

The courts in our jurisdiction have always zealously guarded the rights of the innocent spouse, and have refused, in a number of cases, to countenance any attempt to compel the innocent spouse to accept a decree. In Milliman v. Milliman, 45 Colo. 291, 101 P. 58, 22 L.R.A. (N. S.) 999, 132 Am.St.Rep. 181, the plaintiff husband filed his complaint charging the...

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32 practice notes
  • Kolkman v. People, 12651.
    • United States
    • Colorado Supreme Court of Colorado
    • May 11, 1931
    ...of the rule-making power of courts is to be found in 16 American Bar Association Journal, p. 199 et seq. See, also, Walton v. Walton, 86 Colo. 1, 20, 278 P. 780; Ernst v. Lamb et al., 73 Colo. 132, 133, 213 P. 994. The judicial power of the state is vested in the courts; the legislative and......
  • Young v. Young, 4-7306
    • United States
    • Supreme Court of Arkansas
    • March 27, 1944
    ...S., Constitutional Law, § 128, p. 312. A situation somewhat similar to the one we have here was involved in the case of Walton v. Walton, 86 Colo. 1, 278 P. 780. It appeared in that case that a suit for divorce had been instituted by the husband against his wife. The wife filed answer and c......
  • Young v. Colorado Nat. Bank of Denver, No. 19315
    • United States
    • Colorado Supreme Court of Colorado
    • October 2, 1961
    ...so far as it is applicable and is of a general nature and has not been altered by legislation. To complicate the law, Walton v. Walton, 86 Colo. 1, 278 P. 780, enunciates the doctrine that an action for divorce is not a purely statutory proceeding, and that all courts, in entertaining divor......
  • Young v. Young, No. 7306.
    • United States
    • Supreme Court of Arkansas
    • March 27, 1944
    ...Constitutional Law, § 128, p. 312. A situation somewhat similar to the one we have here was involved in the case of Walton v. Walton, 86 Colo. 1, 278 P. 780, 785. It appeared in that case that a suit for divorce had been instituted by the husband against his wife. The wife filed answer and ......
  • Request a trial to view additional results
32 cases
  • Kolkman v. People, 12651.
    • United States
    • Colorado Supreme Court of Colorado
    • May 11, 1931
    ...of the rule-making power of courts is to be found in 16 American Bar Association Journal, p. 199 et seq. See, also, Walton v. Walton, 86 Colo. 1, 20, 278 P. 780; Ernst v. Lamb et al., 73 Colo. 132, 133, 213 P. 994. The judicial power of the state is vested in the courts; the legislative and......
  • Young v. Young, 4-7306
    • United States
    • Supreme Court of Arkansas
    • March 27, 1944
    ...S., Constitutional Law, § 128, p. 312. A situation somewhat similar to the one we have here was involved in the case of Walton v. Walton, 86 Colo. 1, 278 P. 780. It appeared in that case that a suit for divorce had been instituted by the husband against his wife. The wife filed answer and c......
  • Young v. Colorado Nat. Bank of Denver, No. 19315
    • United States
    • Colorado Supreme Court of Colorado
    • October 2, 1961
    ...so far as it is applicable and is of a general nature and has not been altered by legislation. To complicate the law, Walton v. Walton, 86 Colo. 1, 278 P. 780, enunciates the doctrine that an action for divorce is not a purely statutory proceeding, and that all courts, in entertaining divor......
  • Young v. Young, No. 7306.
    • United States
    • Supreme Court of Arkansas
    • March 27, 1944
    ...Constitutional Law, § 128, p. 312. A situation somewhat similar to the one we have here was involved in the case of Walton v. Walton, 86 Colo. 1, 278 P. 780, 785. It appeared in that case that a suit for divorce had been instituted by the husband against his wife. The wife filed answer and ......
  • Request a trial to view additional results

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