261 P.2d 167 | Colo. | 1953
delivered the opinion of the court.
The matter came on for hearing during the summer vacation when the Honorable Edward C. Day was presiding and hearing matters for all of the district court divisions. During the hearing the court seemed to question the sufficiency of the showing of residence, taking the position generally that plaintiff had lost her residence in Denver by leaving the state and marrying defendant in another state; that the domicile of plaintiff was that of her husband; that she should wait for one year after her return to Denver before filing action for divorce; and without finally determining the matter then, the court continued the case more or less indefinitely for further presentation of authorities and argument. After Judge Day ended his vacation term of serving and the Honorable Henry S. Lindsley was presiding, the matter was called up, testimony submitted, and Judge Lindsley entered an interlocutory decree of
We have read the testimony introduced in the case on all issues involved. On the face of the complaint and the record, one year’s residence was not established if it be assumed that plaintiff lost her Colorado residence by going into another state for marriage. There is no appearance for defendant in error before any court involved or in this court, therefore the question of domicile has not been presented except by plaintiff in error, and we are not inclined to make research on this matter which presents a serious and debatable question under the circumstances here involved. There is an intimation in the brief of plaintiff in error of facts which, had they been fairly and frankly disclosed to the trial court, might have provided a reason for a different ruling.
We see no error in the actions of Judge Day in requesting that the interlocutory decree entered by Judge Lindsley be vacated and the matter transferred back to his division, because, in fact, it was actually pending before Judge Day who had directed that briefs be submitted to him in the matter. So far as the best interests of plaintiff are concerned, if the time consumed in presenting this writ of error had been used to allow the running of the period by filing another complaint, after a full year’s residence had been established after plaintiff’s return to Colorado, plaintiff would no doubt have had a perfectly good and valid interlocutory decree