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Cutter v. Cutter

Court of Appeals of Colorado, Second Division
Jun 20, 1972
500 P.2d 995 (Colo. App. 1972)

Opinion

         Rehearing Denied July 11, 1972.

Page 996

         Warren L. Turner, Grand Junction, for plaintiff-appellee.

         Nelson, Hoskin, Groves & Prinster, P.C., William H. Nelson, John W. Groves, Grand Junction, for defendant-appellant.


         PIERCE, Judge.

         Prior to entry of a divorce decree in 1969, plaintiff (wife) and defendant (husband) entered into an elaborate property settlement and alimony agreement. By its terms, this agreement was to be binding and final upon the parties. It was subsequently incorporated by reference into the decree of divorce.

         The relevant provisions of this agreement were that husband was to pay to wife $1,000 per month for 120 months as support (designated as alimony) and a total of $296.125 as settlement of the property of the parties. Prior to commencement of this action by the wife, husband had paid a total of $175,000, in accord with the property settlement provision. Pursuant to the agreement, the balance of $121,125 was to be paid on January 31, 1971. He failed to make this payment.

         Upon husband's failure to meet this obligation, the wife filed a motion seeking judgment against him. He countered by filing a motion for modification of the decree, alleging that, due to changed circumstances, he was no longer able to meet his obligations under the agreement.

         The trial court refused to modify the terms of the agreement, either with respect to the support obligation or the property settlement. It rejected husband's offer of proof as to change of circumstances. Judgment was entered for the wife.

          Under the law of Colorado applicable to this case, it is a well settled rule that parties who were represented by counsel and who entered into an agreement which was subsequently incorporated into a divorce decree, cannot, in the absence of fraud or overreaching, later obtain a modification of that decree. Under the facts before us, the trial court was without jurisdiction to modify the settlement agreement. Lay v. Lay, 162 Colo. 43, 425 P.2d 704. This rule has been held applicable even where the parties chose to characterize the support agreement as alimony, unless there was a specific provision in the agreement itself allowing future modification by the court. Lay v. Lay, Supra. The trial court, therefore, properly refused to hear the offer of proof on change of circumstances and properly refused to modify the decree.

         Judgment affirmed.

         COYTE and ENOCH, JJ., concur.


Summaries of

Cutter v. Cutter

Court of Appeals of Colorado, Second Division
Jun 20, 1972
500 P.2d 995 (Colo. App. 1972)
Case details for

Cutter v. Cutter

Case Details

Full title:Cutter v. Cutter

Court:Court of Appeals of Colorado, Second Division

Date published: Jun 20, 1972

Citations

500 P.2d 995 (Colo. App. 1972)

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