Opinion
No. 18,390.
Decided June 8, 1959.
Petition by wife for a property settlement in a divorce action. From denial of the petition the wife brings error.
Affirmed.
1. DIVORCE — Property Settlement — Contract — Decree — Merger. Where an executed agreement for a division of property was not incorporated in or made a part of the interlocutory and final decrees of divorce, was not reserved for future action, it was not merged in the divorce proceedings.
2. Division of Property — Contract — Court — Jurisdiction. Where the parties to a divorce action had executed a contract for a division of their property, and no division of property was adjudicated before the interlocutory and final decrees nor reserved for future consideration, the rights of the parties rest upon their contract and the trial court was without jurisdiction to afford the relief sought by a petition for a division of property in the divorce action.
Error to the District Court of Jefferson County, Hon. Christian D. Stoner, Judge.
Mr. THOMAS B. MASTERSON, for plaintiff in error.
Mr. JOHN J. GIBBONS, Mr. BRUCE OWNBEY, Mr. ALBERT S. GOLBERT, for defendant in error.
PLAINTIFF in error, hereinafter referred to as the wife, was defendant in a divorce action brought by her then husband on March 1, 1955. This suit resulted in an interlocutory decree in divorce being granted to the husband on June 20, 1956, which decree by its terms because a final decree in divorce on December 21, 1956. In these interlocutory and final decrees nothing is said about alimony, temporary or permanent, or a property settlement, neither were the matters nor any of them reserved.
On May 6, 1957, the wife filed her "Petition for Property Settlement" wherein she prayed that the court "determine the legal rights in and to the real and personal properties standing in the names of the Plaintiff and Defendant, making equitable distribution of the properties therein."
On January 25, 1955, plaintiff in error and defendant in error entered into a written contract for the division, of the several properties owned by them respectively. This agreement was offered on the hearing held on the wife's petition for property settlement. Apparently the wife filed a lis pendens notice pending determination of her Petition for Property Settlement.
The trial court denied the wife's petition for a property settlement, and ordered the lis pendens released. The wife brings the case here on writ of error.
Nowhere in the record or the briefs of the wife's counsel is it intimated that the provisions of the executed agreement for division of property were incorporated in and became a part and parcel of the interlocutory and final decrees of divorce, or was reserved for future consideration. Had it been incorporated in the decrees it would have ceased to have an independent status. The contract in the instant case was not merged in the divorce proceedings. Gavette v. Gavette, 104 Colo. 71, 88 P.2d 964; Murphy v. Murphy, 138 Colo. 516, 335 P.2d 280.
Hence the question of the division of property not having been adjudicated before the interlocutory and final decrees, or reserved for future consideration, rests upon the contract made by the parties and the relief sought by the wife in May 1957 in the divorce action was beyond the jurisdiction of the trial court.
The judgment is affirmed.
MR. JUSTICE FRANTZ specially concurring.
MR. JUSTICE DOYLE not participating.