Gourley v. Gourley , 101 Colo. 430 ( 1937 )

A DIVORCE suit by the wife. In addition to a divorce, she sought the custody of a minor child, court costs, counsel fees, permanent alimony and maintenance for herself and child, title to certain real estate described in the complaint, and judgment for $4,000 on account of money expended by her to support the minor child for the period of eight years next preceding the filing of her complaint, during which time the husband had deserted his family. The husband did not appear in answer to the complaint, and was represented at trial by appointed counsel. He does not appear here.

The court found that the husband was guilty of extreme and repeated acts of cruelty towards his wife; that, effective in due course, she was entitled to a divorce, and immediately awarded her custody of the minor, attorney's fees and court costs; but as to other relief sought, the wife's counsel acquiescing, the court postponed determination to the time when the divorce would become final. At the expiration of six months — the statutory period — the court granted the wife a divorce, restored her former name, awarded her a monthly sum for the future support of the minor, and title to the real property which she sought; but denied alimony otherwise, and refused to give judgment for money claimed by the wife to have been expended by her in supporting the minor prior to the institution of the suit, the judge saying: "I do not believe it is proper for one parent to recover judgment from another parent for what they spend for the family or support of children while they are married and before the suit was commenced." Other than as to the refusal to give the wife a money judgment in the circumstances set forth, she concedes "that the findings and decrees of the trial court were proper."

[1] We are of the view expressed by the trial judge. The statute ('35 C. S. A. chapter 56, § 8 [C. L. § 5599]), contemplates that when in a divorce case, as here, custody of a minor child is awarded to the wife, an order for its support may be made on the husband. In proceeding to such order the court looks only to the future. What the child may have theretofore enjoyed in the way of support, and from which parent, or whomsoever, is not, in the divorce suit, as we perceive, a subject of inquiry. In such suit, particularly in respect of the care, custody and maintenance of a minor child, the court is bound to appraise conditions as of the time of presentation. What either parent up to that time may have contributed to the child's nurture is not an issue challenging the court's attention. The child's future welfare, who shall enjoy its society and bear the expense of its maintenance thereafter, cover the range of the court's concern. The situation here is distinguishable from that presented by an action at law instituted by the wife to recover from her divorced husband the sum which she had reasonably expended subsequent to the divorce decree, in caring for a minor child whose custody had been awarded to her in a divorce suit, and where the decree made no provision for its support, as in Desch v.Desch, 55 Colo. 79, 132 P. 60, cited by the wife's counsel. It is distinguishable, too, we think, from De Brauwerev. De Brauwere, 203 N.Y. 460, 96 N.E. 722, 38 L.R.A. (NS) 508, which was a direct action for money claimed to have been expended by the wife for the support of minor children during her husband's desertion. There, examining on demurrer, the court held that the complaint stated a cause of action. In that case it also appeared that prior to the wife's action, in a criminal prosecution the husband had been ordered to pay the wife a weekly allowance, which he refused to do. In a divorce case, however, the same court held that recovery by the wife for the support of a minor child, should not be of a time "prior to filing the petition." Washburnv. Catlin, 97 N.Y. 623. "In no event can she obtain anything for the maintenance of the children prior to the decree of divorce." Holt v. Holt, 42 Ark. 495, 500. The cases cited by us in Desch v. Desch, supra, itself within that category, apparently treat of situations arising after the institution of divorce proceedings or subsequent to decree therein.

[2] The showing that the husband has any means or property whatsoever is not convincing, and, although the trial judge made no formal finding as to the fact, he may well have regarded the claim of the wife otherwise as speculative or conjectural. Our study of the record warrants that conclusion. The only property definitely alleged and shown to have belonged to the husband when the suit was filed (a small home in Denver where the wife and child lived), was decreed to her. If the wife believes the husband owns anything of consequence, we are at loss to understand why she acquiesces in denial of other alimony for herself, and a small allowance for the support of the child. It is consistent with the thought that the husband has no present means with which to respond to more favorable orders, and no immediate prospects otherwise. If he has interests in oil lands (appraisement of value not ventured), as appears from the affidavit of one of her attorneys, or may get an interest in a farm from his father, as the wife intimates, still we think there is no justification for a personal judgment against him in this proceeding. If the husband's situation improves, or presently may be shown to justify an increase of alimony, as such, for herself, or more generous allowance for the future support of the minor, or both, the power of the court to make additional orders may be invoked at the wife's pleasure. See Stevens v. Stevens, 31 Colo. 188, 72 P. 1060; Prewittv. Prewitt, 52 Colo. 522, 122 P. 766.

The conclusion we have reached on the principal point, obviates the necessity of determining the sufficiency of the service of process on error. Let the judgment be affirmed.

MR. JUSTICE YOUNG and MR. JUSTICE HOLLAND dissent.