22 Colo. 20 | Colo. | 1895
delivered the opinion of the court.
There are sixteen assignments of error in the record. About one half of this number refer to rulings of the trial court upon the charge of nonsupport contained in the complaint.
The statute in force at the time this ease was tried provides that the marriage relation may be dissolved for the following, among other causes: Desertion, nonsupport. In this case the jury resolved the issues made by the pleadings upon each of the above grounds in favor of the plaintiff.. Desertion being established, unless overthrown, the judg-; ment of divorce must stand, and therefore a consideration of the charge of nonsupport becomes unnecessary. . .
The statute provides that in all cases for a divorce, where the defendant shall appear and deny the charges alleged, the same shall be tried by a jury. By this statute the verdict of a jury in a contested case is absolutely essential as a prerequisite for a decree of divorce. The rule, therefore, which prevents appellate courts from overthrowing verdicts based upon a conflict of evidence, applies with particular force to divorce proceedings under this statute. . , .. y .
A reference to the pleadings discloses -that each party charges the other with desertion, alleging that the same hat] continued for more than one year. It is apparent from this; and also from the evidence, that the parties had been separ rated for more than one year immediately preceding the institution of the divorce proceedings. The plaintiff alleges that this separation was the fault of the defendant, while thq defendant charges that it resulted entirely from the plaintiff’s conduct. The issue thus raised having been, resolved by the jury and district court in favor of the plaintiff upon conflicting evidence, it is not the province of this court. tq
A careful reading of the evidence, however, convinces us that the verdict of the jury is right, and if we were at liberty to ignore the verdict, the result would not be other or different from that reached in the district court.
It has been held that desertion consists in the actual ceasing of cohabitation, and the intent in the mind of the offending party to desert the other. Stein v. Stein, 5 Colo. 55. It cannot be denied that there is evidence in this record going to show the existence of both of these conditions in this case. It is contended, however, that improper evidence was admitted for the purpose of showing the intent with which the defendant left the plaintiff. The particular evidence objected to is not pointed out by the assignments of error, but we infer from the argument that it consists of evidence of matters occurring subsequent to the separation. It frequently happens that the intent can only be shown by the subsequent conduct of the party to be charged. Intent is always largely a matter of inference and presumption, and the subsequent conduct of parties frequently makes plain the intent with which a previous act was performed.
That causes arise for the dissolution of the marriage relation is to be regretted in all cases ; but where, as here, the parties have lived together as husband and wife for nearly thirty years, each enjoying the love and confidence of the other for a quarter of a century of that time, a separation in their declining years seems particularly distressing. Courts may regret, biit they cannot prevent, this result. So, also, the task of making some just and equitable distribution of the estate, representing the accumulation of years of toil and deprivation, in which both have shared, is one that the courts would gladly avoid, if such a course were not inconsistent with duty.
It is apparent that the real contention between these parties is with reference to the distribution of the estate; and where the issue is made, it must be resolved upon the same equita
In this case widely different estimates were placed upon the value of defendant’s property by the different witnesses.
On the one hand there is evidence in the record which would have justified the district judge in increasing plaintiff’s allowance, while on the other there is testimony which, if standing alone, goes to show that the amount awarded as permanent alimony is excessive; but when all the evidence is considered, the result reached seems to be fair and just. Certainly nothing has been shown that would justify this court in setting aside the findings in this particular.
Objection is, however, based upon the ruling of the trial court allowing the plaintiff to file a supplemental petition. This supplemental petition relates solely and exclusively to property rights and the question of permanent alimony, matters which were presented in the original petition, but in a general way only.
It was eminently fit and proper, although not absolutely necessary, that such a pleading should be filed in order that the issue might be made more specific than in the original pleading.
The course pursued is not only free from objection, but it is in accordance with the better practice, and may be followed with advantage in other cases. 2 Bishop on Marriage, Divorce and Separation, secs. 1066 to 1073, inclusive.
The district court gave the plaintiff a lien for the amount
We are referred to our statute in support of this part of , the decree.
“ When a divorce -shall be decreed it shall and may be lawful for the court to make such order touching the alimony and maintenance of the wife, the care and custody of the children, or any of them, as from the circumstances of the parties and the nature of the case shall be fit, reasonable and just; and in case the wife be complainant, to order the defendant to give reasonable security for such alimony and maintenance, or may enforce the payment of such alimony and maintenance in any other manner consistent with the rules and practice of the court, and may also grant alimony pendente lite; and the court may on application from time to time make such alterations in the allowance of alimony and maintenance as shall appear reasonable and proper.”
We do not find in the foregoing statute authority to make the decree a lien upon personal property. It provides where the wife is a complainant, the court may require the defendant to give reasonable security; second, to enforce the payment in any other manner consistent with the rulings and practice of the court. No attempt was made in this case to require the defendant to give security as provided by this' statute, and we need therefore only consider the second authorization. This gives us no new remedy, but provides simply that the old remedies may be applied.
Decreeing a lien upon personal property is not one of the
In the case of Yelton v. Handley, 28 Ill., Appellate Court Reports, 640, it was held that a court of equity has no power to make a decree for alimony a lien upon personal property. This is the only case that we have been able to find in which the question has been raised in any appellate court. Our statute appears to have been taken from Illinois, and the decisions of that state should be given great weight, although not rendered until after the adoption of the statute in this state. In Illinois, as we have seen, it has been held that the power of the court to make a decree for alimony alien upon real estate is expressly upheld, and the power to make a lien upon personal property is as expressly denied. Wightman v. Wightman, 45 Ill. 167; Yelton v. Handley, supra; Sapp v. Wightman, supra.
There seems to be no reason for extending this rule, and in practice we think that liens of this character upon personal property would lead to great inconvenience. Such a decree is unusual, and as the usual remedies for the enforcement of a decree for alimony are complete and adequate, there is no reason for resorting to a doubtful remedy.
In so far as the decree attempts to make the allowance for alimony a lien upon the personal property of the defendant, it is hereby modified, and with this modification the judgment is affirmed. Costs in this court will not be awarded to either Party.
Judgment accordingly.
