Willoughby v. Willoughby

• Decision Date: 01 May 1922
• Docket Number: 10108.
• Citation: 206 P. 792,71 Colo. 356
• Parties: WILLOUGHBY v. WILLOUGHBY.
• Court: Colorado Supreme Court

206 P. 792

71 Colo. 356

WILLOUGHBY v. WILLOUGHBY.

No. 10108.

Supreme Court of Colorado

May 1, 1922

Department 2.

Error to District Court, City and County of Denver; Charles C Butler, Judge.

Action for divorce by Lou F. Willoughby against Gean S. Willoughby. From a judgment setting aside the findings and conclusions and an interlocutory decree of divorce granted to defendant on her cross-complaint, dismissing the case and charging the costs to the plaintiff, plaintiff brings error.

Affirmed.

John Horne Chiles and Jacob L. Sherman, both of Denver, for plaintiff in error.

Nathaniel Halpern, of Denver, for defendant in error.

DENISON J.

The district court granted the motion of defendant in error to set aside findings and conclusions and an interlocutory decree of divorce, rendered on her cross-complaint, dismissed the case, and charged the costs to the husband, plaintiff below. He orings error.

Lou F Willoughby brought suit against Gean S. Willoughby for divorce, alleging cruelty; she answered with general denial, and added a cross-complaint for desertion. The case was tried October 4, 1920. At the trial counsel for plaintiff stated that they desired to try the case on the cross-complaint; that it was not their purpose to rely on the complaint. No order was then made, however, dismissing the complaint, but the case proceeded to trial on the cross-complaint. On the following day the court signed the usual findings of fact, conclusions of law, and interlocutory decree. When the six months was nearly gone defendant filed a petition under S. L. 1917, p. 184, § 10, to set aside the findings and conclusions, on specified grounds, and prayed that the findings and conclusions be set aside, and a new trial granted, for leave to amend her complaint to ask for separate maintenance, that if no amendment were allowed that the suit be dismissed without prejudice, and that all contracts, if any, be set aside.

The plaintiff answered this petition with denials, and set up a contract or stipulation with his wife made after her cross-complaint was filed, which, after reciting that plaintiff had brought suit, that defendant had filed a cross-complaint, that the parties had voluntarily settled their property rights and claims, and that he had 'fully informed the defendant of his exact financial condition, and the defendant is thoroughly conversant therewith, and each of the parties hereto have made a full statement of each other's rights,' provided as follows:

'That for and in consideration of the sum of $2,000, to be paid by the plaintiff to the defendant in the sums of $85 per month regular installments, the said defendant does hereby release and relinquish all her right, title and interest, claim and demand of any kind or nature whatever, in and to any property of the said plaintiff regardless as to whether or not the above-entitled cause is dismissed and does hereby relinquish and forever discharge the plaintiff of and from any and all rights, claim or demand of the said defendant, which she might have as heir of the said plaintiff or otherwise, and should the said entitled cause be dismissed, and the said defendant survive the said plaintiff, this contract and stipulation may be exhibited in any court of probate wherein the estate of the plaintiff may be filed for settlement as a full and complete bar against the defendant to the recovery of any part of the estate should the said defendant survive the said plaintiff.'

'It is further stipulated and agreed that the above-named plaintiff shall convey the premises known as 1351 Garfield street, together with all the furniture and furnishings therein contained to the defendant above named. It is further stipulated and agreed that the above-named plaintiff shall cause to be dismissed that certain case now pending in the district court of Denver, Colo., known as Mary E. Jewett v. Mrs. L. F. Willoughby, case No. 72089, in Div. 3; that the said cause shall be dismissed with prejudice at the cost of the plaintiff in said cause; that, on the trial of this cause, if the decree be in favor of the defendant, the plaintiff shall pay counsel fees of the defendant to the extent of $250 additional to that which has already been paid, and the court costs to be taxed in this suit.'

He also alleged performance of this contract on his part up to that time.

The court, without taking evidence, granted the motion to set aside the findings and conclusions, but did not grant a new trial nor leave to amend nor leave to dismiss without prejudice, and did not set aside the contract. The order was as follows:

'This cause having been heretofore submitted to the court and by the court taken under advisement upon defendant's motion to set aside findings of fact and conclusions of law and dismiss case, and the court being now sufficiently advised in the premises, doth grant said motion and judgment of dismissal ordered entered as to the complaint and cross-complaint with prejudice as to both parties, but

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