Opinion
Feb. 23, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Charles S. Vigil, David C. Vigil, Denver, for plaintiff in error.
Holley, Boatright & Villano, Michael C. Villano, Wheatridge, for defendant in error.
COYTE, 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 shall be referred to as they appeared at trial, wherein the plaintiff in error was the defendant and the defendant in error plaintiff.
The parties were divorced in April of 1967. This is a subsequent action to the divorce proceeding and involves a suit for disposition of proceeds from an insurance policy, not covered in the divorce proceeding or decree.
The background of this case reveals that the parties were married in 1948. Prior to their divorce, their son was killed in an automobile accident and they recovered $50,000 on an insurance policy. After the insurance was paid over to the parties, joint accounts were opened in two separate banks. Out of this $50,000 nearly $7,000 was spent to pay the last expenses of their son, as well as other obligations arising out of the maintenance of their household.
Just prior to the divorce, the defendant withdrew a total of $33,688.46 from the two accounts and deposited these funds in her own separate account, leaving plaintiff with a total of $10,000 in one of the joint bank accounts.
Thereafter, the parties entered into a written agreement concerning the support, custody and visitation rights to the remaining child, which agreement was incorporated into the April 1967 divorce decree.
At this point, there is a conflict in the facts which has led to this appeal. The defendant claims that the $33,688.46 withdrawn from the two banks was done with the consent and approval of the plaintiff. The plaintiff on the other hand testified that he knew only of the withdrawal from one bank, but did not consent to, nor approve of, the defendant keeping the $33,688.46. He contends that he and the defendant each had agreed to contribute $4,000 to their daughter's future education with defendant holding the $8,000 and had agreed to divide the $43,000 remaining from the insurance proceeds equally between themselves.
The trial court in this proceeding found generally in favor of plaintiff, held that the wife was entitled to keep only one-half of the $43,000, plus the $8,000 for the education of the child, and entered judgment in plaintiff's favor for approximately $7,000.
The defendant has appealed, urging that there was no such agreement. The evidence was in conflict with each party testifying as to his or her own version of the facts and circumstances surrounding the division of this money. Since the court chose to believe the plaintiff's testimony that he and his wife had mutually agreed upon an equal division of this money prior to their divorce, this finding of fact is binding on appeal. As a consequence, we must approach defendant's next allegation of error on the basis that the parties had in fact entered into this agreement prior to their divorce.
Defendant next contends that the divorce decree entered in April of 1967 is res judicata as to this action which was brought a year later by the plaintiff seeking recovery of the money. Defendant's theory is that this action amounts to a division of property by the court, and that such a division is not permissible after the divorce decree has been entered. This assertion is contrary to Cawley v. Cawley, 139 Colo. 439, 340 P.2d 122, where it was pointed out that unless an agreement for the division of property entered into by the husband and wife has been incorporated into the interlocutory or final decree of divorce, or reserved for future consideration by the court, it does not merge into the divorce proceedings but provides an independent basis for action at a later time. The case cited by the defendant, Scofield v. Scofield, 89 Colo. 409, 3 P.2d 794, is distinguishable from the instant case since there the record clearly revealed that the subject matter of the second action was also involved in the first action in divorce, and therefore the first action (divorce) would be res judicata as to the second action.
Here the property in question, the $43,000, had not been taken into consideration by the trial court in the divorce proceeding when it entered its divorce decree and its orders as to child custody, child support and alimony. The agreement of the parties as to the disposition of this money was the proper basis of a second and independent suit by plaintiff against his former wife. Cawley v. Cawley, Supra.
The final argument raised by the defendant is that the $7,000 initially spent out of the insurance proeeds for the mutual maintenance of the household, and the $8,000 necessary for their daughter's education, should be deducted in whole from the plaintiff's share of the proceeds. It is defendant's theory that such expenditures are properly allocable to the husband in a divorce action.
This argument, however, does not meet the issue raised below, which is solely concerned with an agreement entered into by the parties prior to the divorce. According to the facts as found to be true by the trial court, the $43,000 was fully accounted for in this agreement. This was an action on an agreement pertaining to the division of joint tenancy property. Findings made below as to the parties' intentions concerning this agreement, being supported by the evidence, will not be upset upon review. It should also be noted that the trial judge in the divorce proceedings and the trial judge in this proceeding were one and the same.
Judgment affirmed.
DWYER and ENOCH, JJ., concur.