Opinion
Aug. 14, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Morris Rifkin, Robert J. Ring, Denver, for plaintiff-appellant.
Robert L. Tognoni, Denver, for defendant-appellee.
ENOCH, Judge.
This is an action for specific performance of a contract entered into by former spouses Frances Neeley, plaintiff-appellant, and Matthew Vuksic, defendant-appellee. Plaintiff appeals from the court's judgment based on its order entered at the close of plaintiff's evidence granting defendant's motion to dismiss the complaint. We affirm.
The parties were divorced in 1964. A property settlement agreement was entered into and was made a part of the decree. As a part of that agreement, Matthew was awarded title to the family residence. Frances was given custody of the children and the right to live in the residence as long as she desired. Matthew was to make certain support payments for the children.
In 1970 the parties entered into another agreement, the subject matter of this action, which purported to modify the original agreement to the extent that Matthew would convey the residence to Frances and Matthew would be relieved of any further obligation to provide child support. Further, if Frances ever sold the home, Matthew would receive $1,000 from the proceeds of the sale.
Frances seeks specific performance by Matthew of this 1970 contract. She contends on appeal that the court erred in ruling that the 1970 agreement was void. We disagree and affirm.
Initially Frances took the position that, by releasing Matthew from his obligation for support, she had given adequate consideration for the enforcement of Matthew's promise to convey the property. Frances abandoned this theory, conceding that she could not relinquish he children's right to support. She next tried to support the validity of the contract by arguing that the $1,000 which she agreed to pay Matthew if she sold the home was adequate consideration. On appeal Frances abandons that reasoning and asserts still another position that, as between husband and wife, there need be no consideration to support a binding contract and that such a contract should be enforced in an independent action on the contract because the parties freely and voluntarily entered into the agreement. Frances, however, cites no authority for this contention, and we find none. There being no legal consideration to support the agreement, it is void and unenforceable. Ireland v. Jacobs, 114 Colo. 168, 163 P.2d 203.
Judgment affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.