No. 4647 | Colo. | Jan 15, 1903
Lead Opinion
delivered the opinion of the court.
By virtue of the general equity powers of a court granting a divorce, as well as by virtue of the provision of sec. 9 of the Divorce Act, Session Laws, 1893, p. 240, such court has the authority to modify the decree relative to alimony payable in the future, and the custody and control of minor children as the changed circumstances of the parties may render necessary and just.—Richmond v. Richmond, 2 N. J. E. 90; Sheafe v. Sheafe, 36 N. H. 155; Coad v. Coad, 41 Wis. 23" court="Wis." date_filed="1876-08-15" href="https://app.midpage.ai/document/coad-v-coad-6602147?utm_source=webapp" opinion_id="6602147">41 Wis. 23; Foote v. Foote, 22 Ills. 425.
There are no decisions of this court or the court of appeals to the contrary. The judgment of the county court is reversed, and the cause remanded,
Dissenting Opinion
dissenting.
A decree of divorce, was rendered by the county court of Lake county in March, 1895, in favor of the defendant in error and against the plaintiff in error, in which the plaintiff in error was ordered to pay to •the defendant in error the sum of fifty dollars a month as permanent alimony. No time.was fixed by the decree.when the payments- should cease. The plaintiff in error made the monthly payments reT .quired by the decree until the 30th day of March, 1901. He then filed a petition asking for a modification of the decree, alleging that he was no longer able to make the monthly payment. To this petition the defendant in error demurred, and the court sustained the demurrer, upon the ground that the court was without jurisdiction to modify the decree.
The question presented is whether a final decree of divorce in which alimony has been awarded can be reopened after the expiration of one year from the.granting of the decree. The question.is, in my judgment, determined by the statute; and, as I read section 10 of the act concerning divorce and alimony, the court has no authority to reopen a decree, for any cause, after the expiration of a year. Section 2 of the act provides, that “like process, practice and proceedings shall be had in such cases as are usually had in other civil cases', and in accordance with the requirements of the code of civil procedure; except as expressly modified or provided in this act. ” If it be said that section 10 of the act applies to only that portion of the decree granting a divorce, then it seems to me that section 75 of the code should apply to the other portions of the decree. By that section of the
The authorities cited in the opinion are not in point. In New Jersey, New Hampshire, Wisconsin and Illinois the statutes provide that after final decree the court shall have power to change or modify it in accordance with the changed circumstances of the parties. ' - '
It appears from the petition for modification that the pláintiff in error has paid the sum of $3,600 to the defendant in error under this decree. In the complaint for divorce the plaintiff states, that “the amount sued for in this action and the amount sought as alimony does not exceed the sum of two thousand dollars.” The statute grants to the county court jurisdiction in divorce cases, “when the plaintiff shall aver in the complaint that he does not ask or seek alimony in excess of the sum of two thousand dollars.” The county court was not authorized to award the plaintiff alimony in excess of the sum of two thousand dollars; and when the defendant paid the sum of two thousand dollars, he satisfied’ the
On the subject of the jurisdiction of the county court as herein stated, the Chief Justice agrees with my conclusion.