Ward v. Terriere

• Decision Date: 21 October 1963
• Docket Number: No. 19962,19962
• Citation: 386 P.2d 352
• Parties: Martha French, WARD, Plaintiff in Error, v. Mary E. TERRIERE, Administratrix of the Estate of Will Feagins, Deceased, et al., Defendants in Error.
• Court: Colorado Supreme Court

Page 352

386 P.2d 352

153 Colo. 326

Martha French, WARD, Plaintiff in Error, v. Mary E. TERRIERE, Administratrix of the Estate of Will Feagins, Deceased, et al., Defendants in Error.

No. 19962.

Supreme Court of Colorado, In Department.

Oct. 21, 1963.

Rehearing Denied Nov. 18, 1963.

Miller & Ruyle, Greeley, for plaintiff in error.

Paynter & Paynter, Brush, for E. E. Feagins, and others.

Wells & Snydal, Fort Morgan, for Marvin Ford, and others.

DAY, Justice.

The parties will be referred to by name.

Martha French, in the Morgan County court, claimed rights as a widow in a determination of heirship proceedings involving the estate of Will Feagins.

Challenged in this writ of error is the validity of the judgment and decree of the district court declaring that Martha French was not the surviving spouse of Will Feagins and therefore not entitled to inherit under the laws of descent and distribution from the estate of Will Feagins. The court found the lawful heirs of Will Feagings to be his brothers and sisters and the living descendants of his deceased brothers and sisters, all of whom are represented by Mary Terriere, Administratrix.

Martha claims error grouped under two headings:

1. She asserts that she should in law be declared the widow of Will Feagins because they had been validly and legally married in a ceremonial marriage in Kearney, Nebraska, on the 12th day of May, 1925, and that a 1931 county court decree of divorce was a nullity because of dismissal of the action by the court on her motion filed three and one half years later.

2. She contends that if the divorce decree is valid then the parties subsequent thereto again became husband and wife by entering into a common law remarriage and that the court in finding to the contrary erred in failing to apply the proper rule of law.

On the matter of the decree of divorce, Martha sought relief from the effect thereof on two grounds: (a) that the county court records show her divorce action had been dismissed; (b) that if the order of dismissal be ruled invalid the court in which the divorce action was commenced or the district court as a court of general jurisdiction could vacate the decree of divorce and should have done so.

There is no merit in the points of error asserted by Martha. The trial court was bound by the final decree of divorce, was correct in decreeing that the order of dismissal was void and acted properly in refusing to set the divorce decree aside at the time of the hearing in the determination of heirship. On the question of subsequent remarriage under the common law, the issue was resolved by the court on conflicting testimony which was heavily weighted against Martha, and we will not disturb the trial court's findings on review.

The divorce proceedings were com menced by Martha against Will Feagins on September 28, 1931. The complaint alleged extreme and repeated acts of cruelty and that the parties had been separated for several months prior to the commencement of the action. Will did not contest the action, and on October 13, 1931, an interlocutory decree was entered. No alimony was granted. Incorporated in the decree and made a part thereof was a property agreement wherein their real and personal property was divided between them. Also in the property settlement was an agreement never to assert a claim against each otther's property. The decree further set forth and confirmed the exchange of deeds between the parties indicating that even before the approval of the final settlement by the court the parties had actually carried out their settlement contract. Other deeds of record introduced at the trial clearly indicate that the parties acted under the decree and settlement. The interlocutory decree of October 13, 1931, by force of law (c. 91, Session Laws of Colorado [1929] p. 328) became final six months from the date of its entry.

Under date of March 11, 1935, the order book of the county court contains an entry that the action was 'dismissed' on the motion of Martha's attorney. It is undisputed that no motion was made to set aside the decree within the six months of the interlocutory period. There is no indication in the record that the motion was ever served on Will Feagins or that a hearing was held thereon. From the record alone the county court had no jurisdiction to dismiss a case which had proceeded to final judgment.

Martha argues that Jordan v. Jordan, 105 Colo. 171, 96 P.2d 13, is authority for her position and for the power of the county court to dismiss the action. We do not so read the Jordan case. In that case the petition alleged, among other things, 'that the rights of third parties were not in any manner involved.' The petition was served upon the opposite party who contested the same, and a full hearing disclosed facts which indicated to the court, and it so held, that reconciliation had occurred during the period of the interlocutory decree, and that the decree therefore had been rendered void. The decree was set aside. In the instant case there is no finding by the court of reconciliation during the interlocutory period, and the word 'dismissed' in an order book in the clerk's office has no effect on a final judgment or final decree, and is not the same as finding a decree void ab initio.

Martha contends that evidence presented in the county court and in the district court in the heirship proceedings showed the parties were reconciled and lived together during the period of the interlocutory decree...