Weston v. Weston , 80 Colo. 323 ( 1926 )

GAUDALUPE WESTON had a decree for separate maintenance by monthly payments. After many payments were in default the court modified the decree, inter alia, by changing the future payments from $80 to $30 and adjudging that the alimony accrued and unpaid be considered as paid in full. She brings error.

She claims: (1) That the evidence does not justify the change from $80 to $30; (2) that the court has no power to modify a decree for accrued alimony.

Upon the first point, the trial court is in a better position to judge than we. As to the second, we are forced to say that plaintiff in error is right. McGregor v. McGregor,52 Colo. 292, 122 P. 390; Sistare v. Sistare,218 U.S. 1, 30 Sup. Ct. 682, 54 L.Ed. 905, 28 L.R.A. (N.S.) 1068, 20 Ann. Cas. 1061. See, also, Craig v. Graig,163 Ill. 176, 45 N.E. 153; Kell v. Kell, 179 Iowa, 647, 161 N.W.. 634; Beers v. Beers, 74 Wash. 458, 133 P. 605;Livingston v. Livingston, 173 N. Y. 377, 66 N.E. 123, 61 L.R.A. 800, 93 Am. St. Rep. 600; Delbridge v. Sears,179 Iowa, 526, 160 N.W. 218; Myers v. Myers,62 Utah, 90, 218 P. 123, 30 A.L.R. 74.

Defendant in error cites Johnson v. Johnson, 78 Colo. 187,240 P. 944; and Willoughby v. Willoughby,71 Colo. 356, 360, 206 P. 792; Huff v. Huff, 77 Colo. 15, 234 P. 167; Stevens v. Stevens, 31 Colo. 188,72 P. 1061; Prewitt v. Prewitt, 52 Colo. 522, 122 P. 766;Diegel v. Diegel, 73 Colo. 330, 215 P. 143; Jewel v.Jewel, 71 Colo. 470, 207 P. 991; but in none of these cases was it held that accrued alimony could be cancelled, and what was said in the opinions must, of course, be interpreted with regard to the facts then before the court. In Huff v. Huff, at page 17, the court says "* * * 'Such court (district) has the authority to modify the decree relative to alimony payable in thefuture, * * * as the changed circumstances of the parties may render necessary and just * * *.'"

The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

MR. CHIEF JUSTICE ALLEN not participating.