Wigton v. Wigton
| Decision Date | 02 April 1923 |
| Docket Number | 10214. |
| Citation | 216 P. 1055,73 Colo. 337 |
| Parties | WIGTON v. WIGTON. |
| Court | Colorado Supreme Court |
Rehearing Granted June 4, 1923.
Error to District Court, Pueblo County; Samuel D. Trimble, Judge.
Suit by Hattie W. Wigton against W. I. Wigton. Judgment for plaintiff, and defendant brings error.
Affirmed and remanded, with instruction.
On Rehearing.
John H. Voorhees and S. S. Packard, both of Pueblo, for plaintiff in error.
E. O Phlegar, of Del Norte, and Sabin, Haskins & Sabin, of La Junta, for defendant in error.
Defendant in error brought suit against plaintiff in error for divorce and had judgment. In entering the decree of divorce the court reserved for further consideration the question of alimony and division of property. A referee was appointed to take testimony and report findings as to the property interests of the parties, and in due time filed his report. The court adopted his findings, with some modifications, and entered judgment against the defendant for a gross sum in money. It is this judgment which is under review here.
Plaintiff in error has assigned numerous errors, many of which are not argued. He contends that the findings of the court are not sustained by the evidence; but an examination of the record discloses that such is not the fact. There was a mass of evidence, pro and con, before the referee as to the property alleged to be community property, and as to its value. The court adopted the referee's findings. The presumption is that, in so doing, the court examined the record, and did its full duty. Peck v. Alexander, 40 Colo 392, 91 P. 38. Under these circumstances we are not at liberty to weigh the evidence and make new findings. Counsel point out no finding which is without support in the record.
It is also contended that the value of the property should have been ascertained as of an earlier date; also that this value was based upon obinion evidence. We are at a loss to understand the ground of the latter objection, inasmuch as the ordinary way of establishing property values is by the testimony of persons who are shown to have knowledge of the value of like properties.
As to the other of these two objections mentioned, counsel do not suggest how the plaintiff in error has been prejudiced by a proof of values at one time rather than at another. The objections therefore are of no value.
It is further contended that the court had no authority to enter judgment for a gross sum; it being the contention of plaintiff in error that the allowance is alimony. The complaint alleged that defendant held in his name a large amount of property to the accumulation of which, through a series of years, the efforts of the plaintiff had contributed. The prayer of the complaint was for an allowance of alimony and a division of property. Such division is specifically authorized by the act of 1915 (Acts 1915, c. 74) under which this suit was prosecuted. The court having found that the defendant was holding property in which the plaintiff had an interest, and the decree merely giving to the plaintiff the value of the share in that property to which the court found she was entitled, the fact that the decree spoke of the allowance as 'alimony and a division of property' was wholly immaterial. That this matter was determined in the pending action is in accord with good practice, which discourages a multiplicity of suits.
The courts look to the substance and not to the form in these cases. The court had ample authority for dividing the property according to the rights of the parties. Van Gordor v. Van Gordor, 54 Colo. 57, 129 P. 226, 44 L.R.A. (N. S.) 998. In that case a judgment for a sum in gross representing the value of one-half the joint property was affirmed, after a full discussion of the right of a wife to share in the property which she had helped to accumulate.
See, also, Vigil v. Vigil, 49 Colo. 156, 111 P. 833, 31 L.R.A. (N. S.) 579. Under the authority of the case last cited, defendant in error was entitled to one-half of the joint property, as permanent alimony. How then is plaintiff in error injured by calling it 'alimony and division of property?'
Plaintiff in error also contends that the case should be dismissed upon the ground that there was in evidence a contract between the plaintiff and one of her counsel by which the attorney was to receive a portion of the amount recovered as alimony, or a division of property. That such a contract is contrary to public policy and good morals is not to be denied. If the matter now before the court concerned the divorce itself, the authorities cited by counsel on this...
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