Weston v. Weston

• Citation: 80 Colo. 323,251 P. 534
• Decision Date: 06 December 1926
• Docket Number: 11485.
• Parties: WESTON v. WESTON.
• Court: Supreme Court of Colorado

251 P. 534

80 Colo. 323

WESTON v. WESTON.

No. 11485.

Supreme Court of Colorado, En Banc.

December 6, 1926

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

Action by Guadalupe Weston against Guy S. S. Weston. Decree for plaintiff for separate maintenance was modified, and plaintiff brings error.

Reversed and remanded.

See, also, 246 P. 790.

Henry E. May and Albert E. Bogdon, both of Denver, for plaintiff in error.

Luke J. Kavanaugh, of Denver, for defendant in error.

DENISON, J.

Guadalupe Weston had a decree for separate maintenance by monthly payments. After many payments were in default the court modified the decree, inter alia, by changing the future payments from $80 to $30, and adjudging that the alimony accrued and unpaid be considered as paid in full. She brings error. She claims: (1) That the evidence does not justify the change from $80 to $30; (2) that the court has no power to modify a decree for accrued alimony.

Upon the first point, the trial court is in a better position to judge than we. As to the second, we are forced to say that plaintiff in error is right. McGregor v. McGregor, 52 Colo. 292, 122 P. 390; Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905, 28 L.R.A. (N. S.) 1068, 20 Ann.Cas. 1061. See, also, Craig v. Craig, 163 Ill. 176, 45 N.E. 153; Kell v. Kell, 179 Iowa 647, 161 N.W. 634; Beers v. Beers, 74 Wash. 458, 133 P. 605; Livingston v. Livingston, 173 N.Y. 377, 66 N.E. 123, 61 L.R.A. 800, 93 Am.St.Rep. 600; Delbridge v. Sears, 179 Iowa 526, 160 N.W. 218; Myers v. Myers, 62 Utah 90, 218 P. 123, 30 A.L.R. 74.

Defendant in error cites Johnson v. Johnson, 78 Colo. 187, 240 P. 944; Willoughby v. Willoughby, 71 Colo. 356, 360, 206 P. 792; Huff v. Huff, 77 Colo. 15, 234 P. 167; Stevens v. Stevens, 31 Colo. 188, 72 P. 1061; Prewitt v. Prewitt, 52 Colo. 522, 122 P. 766; Diegel v. Diegel, 73 Colo. 330, 215 P. 143; Jewel v. Jewel, 71 Colo. 470, 207 P. 991; but in none of these cases was it held that accrued alimony could be canceled, and what was said in the opinions must, of course, be interpreted with regard to the facts then before the court. In Huff v. Huff, 77 Colo. at page 17, 234 P. 168, the court says:

'* * * Such court [district] has the authority to modify the decree relative to alimony payable in the future, * * * as the changed circumstances of the parties may render necessary and just. * * *'

The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

ALLEN, C.J., not participating.