Opinion
July 14, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Schmidt & Schmidt, Howard M. Schmidt, Springfield, for plaintiff in error.
Allott & Rogers, Robert G. Rogers, Lamar, for defendant in error.
PIERCE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties appear here in the same order they appeared in the trial court and will be referred to hereinafter by their appropriate designation.
This case concerns certain modifications made by the trial court to a 'Property Settlement Agreement' executed by the parties in anticipation of living separately and apart until one or the other determined to obtain a divorce. The agreement was executed on October 28, 1964, and the parties lived separately and apart under its terms until plaintiff filed for divorce in June of 1966. In his complaint, plaintiff prayed that the court adopt the agreement as part of its permanent orders on property division, alimony and support.
Defendant counterclaimed for divorce, and contended that the subject agreement was unconscionable, inequitable and obtained by undue influence and without full disclosure of the plaintiff's assets, and prayed that the court not adopt the agreement.
Defendant was granted a divorce on her counterclaim, and a subsequent hearing was held to determine the validity of the subject agreement and whether or not it should be adopted by the trial court. If not adopted, property division, custody of the parties' minor child, alimony and support were to be decided by the court at the same hearing.
The agreement, duly signed and notarized, provided for: plaintiff's purchase of defendant's interest in the family farm for $14,500; allocation of family automobiles; division of household furnishings and miscellaneous personal property; custody of the minor child; waiver by each party of any present or future claims not covered in the agreement; and notification to the court of the existence of the agreement, and adoption of the agreement as part of the court's orders 'with the court's permission.' The agreement made no provision for alimony to the defendant.
Upon completion of the hearing, the court found '* * * that the property settlement agreement entered into between the parties * * * is a valid agreement of the parties and should be adopted by the court,' and that the parties apparently had considered all matters pertinent to property settlements. Nevertheless, the court made additional findings denominated as Findings Three through Six, which awarded alimony, ordered the payment of certain tax money and refunds, and made visitation rights contingent upon performance of the balance of the court's order.
The court then adopted the agreement, but entered additional orders in accordance with its other findings.
Plaintiff objected to the modifications of the agreement and, accordingly, moved for new trial. The motion was denied, and plaintiff brings error before this Court, asserting that the court erred in:
1. Finding the subject agreement valid and adopting it, but nevertheless modifying its provisions by (a) awarding alimony; (b) ordering payment of certain tax moneys withheld by plaintiff from the settlement payment made to defendant; and (c) ordering payment to defendant of fifty percent of the income tax refund, received after the agreement; and
2. Making plaintiff's visitation rights contingent upon payment of the various obligations imposed by the court's modifications of the subject agreement.
As to the first point raised by plaintiff, we rule that the court's entire order should be considered as a unit in determining its effect rather than attempting to dissect its individual paragraphs. With this view in mind, it is clear that although the court stated the contract was valid and was being adopted, in effect, it did not accept the contract in its entirety since it made material modifications to it as indicated by Findings Three through Six in the order.
It cannot be denied that the contract itself, by its specific terms, was subject to approval by the court. The court could have accepted the agreement in its entirety; rejected it in its entirety; or conditionally accepted it, with modifications. The latter occurred in the case before us.
With the exception of its Finding number Six, the court was well within the confines of its discretionary power to determine these matters. Moats v. Moats, Colo., 450 P.2d 64; Nunemacher v. Nunemacher, 132 Colo. 300, 287 P.2d 662.
While it is regrettable that the court used some language in its order that might lead the plaintiff to believe the court was accepting the agreement in its entirety, a reading of the entire order makes it clear that the court's intent was otherwise.
The court's findings and orders, with the exception of Finding Six, are valid and will not be disturbed.
Finding Six reads as follows, '* * * that custody of the minor child of the parties should be given to defendant, subject to rights of visitation in the plaintiff * * * So long as plaintiff is current in making all payments required to be made hereunder.' (Emphasis added.) We hold that the principles announced in Kane v. Kane, 154 Colo. 440, 391 P.2d 361, are applicable to the instant case, and rule that the trial court exceeded its discretionary powers in making plaintiff's visitation rights contingent upon faithful performance of all obligations imposed by the agreement and the court's modification thereof.
Plaintiff had apparently fully performed under the terms of the agreement for two and one-half years prior to the hearing which was the subject of this appeal; and there was no evidence to indicate he would not continue to so perform. In the event he later misperformed, there would be available suitable remedies (e.g., contempt) to enforce his proper performance.
For reasons above stated, judgment is affirmed with the exception of that portion of Finding Six which makes plaintiff's visitation rights contingent upon faithful performance of the balance of the court's order, and this matter is remanded to the trial court for correction in accordance herewith.
COYTE and DUFFORD, JJ., concur.