Opinion
April 27, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Parge, Dyer & Buck, Guy B. Dyer, Jr., Cortez, for appellee-plaintiff.
William A. Thompson, Jr., Cortez, for appellant-defendant.
DUFFORD, Judge.
This case involves a property settlement agreement which was contained in a divorce decree entered on August 11, 1966. The parties will be referred to as they appeared in the divorce action, where appellee-wife was the plaintiff and the appellant-husband was the defendant. The issue presented by this appeal is whether an order of the trial court which was entered October 21, 1969 modified or merely interpreted and enforced the prior property settlement agreement. No contention is made in this case that the property settlement decree was entered in the face of fraud or mistake. The parties agree that the trial court was without jurisdiction to modify the property settlement agreement since it was incorporated into a judgment which had become final. Magarrell v. Magarrell, 144 Colo. 228, 355 P.2d 946; Zlaten v. Zlaten, 117 Colo. 296, 186 P.2d 583.
Under the clear and unambiguous terms of the property settlement contained in the divorce decree, the defendant was to pay the plaintiff the sum of $4,300 plus interest within five years of October 1, 1966, if an existing contract for the sale of a farm was not consummated. The existing contract was not consummated. The trial court's order of October 21, 1969, directed the defendant to pay the sum of $4,300, together with interest, and, to insure payment, affirmed a prior order which garnisheed funds owing to the defendant. These orders compelled payment long before the expiration of the specified five-year period. This constituted a modification of the property settlement agreement and a material change of the defendant's rights and obligations.
Such being the case, the trial court lacked jurisdiction to enter the order in question and erred in not granting the defendant's motion to vacate the orders preliminary thereto. Magarrell v. Magarrell, Supra.
The judgment is reversed, and this cause is remanded with directions that the trial court vacate its order of October 21, 1969.
SILVERSTEIN, C.J., and ENOCH, J., concur.