Mr. Justice Moore
delivered the opinion of the court.
We have had this cause before us on a prior occasion. See, No. 16003, United States National Bank v. Bartges, 120 Colo. 317, 210 P. (2d) 600. The facts giving rise to the controversy are fully set forth in that case and no good purpose would be served by repeating them. For [548]*548reasons fully set forth in our former opinion, we remanded the cause for further proceedings, with direction to the trial court as follows: “The cause is remanded with directions to enter a money judgment for such sum as shall be determined by the court, from the evidence heard upon the trial, as will result in a fair and equitable division of property as required under Kansas law.”
Pursuant to this mandate the trial court reconsidered the case and entered formal findings, the pertinent parts of which are as follows:
“The court feels that a just, fair and equitáble division, based on the worth of George P. Dickey as of February 7, 1944, could well be based on a finding that at that date he was worth between five and six million dollars. But so that there be no question as to his worth, certainly the evidence in this case discloses that on February 7, 1944, conservatively and without any question of doubt, George P. Dickey was worth $3,800,000.00.
“Counsel for plaintiff have indicated that they would be satisfied with a third of his worth, but the court feels that such a division would be too small and feels that an allowance of fifty per cent of that amount, or $1,900,-000.00, is a just and equitable division. To be credited on that amount is the sum of $325,000.00, the amount she previously received in the divorce settlement.
“Certainly if Mrs. Bartges had, on February 7, 1944, insisted on and been awarded by the Kansas court a division in kind, she would have profited much more than by the money judgment this court is now entering of $1,575,000.00.”
Judgment was entered in favor of defendant in error in the sum of $1,575,000.00, to review which, plaintiffs in error bring the case here by writ of error. In the specification of points filed by plaintiffs in error, there are set forth sixteen separate grounds upon which reversal of the judgment is urged. Specifications numbered 1 to 10 inclusive relate to matters argued at length by plaintiffs in error in their original briefs and petition for [549]*549rehearing in cause No. 16003. Having once decided those questions on the former hearing we do not consider them further, except to quote a pertinent paragraph from the opinion of Mr. Justice Knous in Ginsberg v. Bennett, 106 Colo. 285, 104 P. (2d) 142, as follows: “Every question now raised by plaintiffs was presented in their original briefs and motion for rehearing in Case No. 13,883, and therein were determined adversely to them. Under such circumstances it is not permissible to resubmit questions previously decided in the former proceeding in error, since the opinion therein and the judgment entered in conformity therewith constituted ‘the law of the case,’ which must control.”
Specification of Points numbered 11 to 16 inclusive are combined and argued by attorneys for plaintiffs in error under one heading as follows: “The Trial Court Failed And Refused To Follow The Mandate Of This Court In Cause No. 16003. Its Findings Of Fact Purporting To Support Its June 7, 1950, Judgment Are Not Supported By The Evidence, But Are Contrary To The Evidence And Are Arbitrary And Capricious. The June 7, 1950, Judgment Is Without Support of Law Or Fact And Is Arbitrary, Capricious And Unprecedented And Said Judgment Is In Violation Of The Right Of ‘Liberties’, The Due Process, Impairment Of Obligation Of Contract And Other Provisions Of The Federal, Kansas And Colorado Constitutions.”
Analysis of specifications 11 to 16 leads us to the conclusion that all questions argued, except those hereinafter discussed, have been answered by our opinion in cause No. 16003, supra.
Questions to be Determined.
First: Is the judgment, of which complaint is here made, consistent with the mandate of this court in cause number 16003?
This question is answered in the affirmative. Counsel for plaintiffs in error contend that the trial [550]*550court did not follow our mandate in cause No. 16003 in the rendition of the judgment to which the writ of error issued herein is directed. The trial court, in the judgment reviewed in cause No. 16003, ordered that plaintiffs in error should establish an irrevocable trust sufficient to provide an income of $450.00 per month for defendant in error, in addition to the benefits she theretofore had received under the terms of a separation agreement with her husband. In considering that judgment we said: “The judgment of the trial court is affirmed in so far as it sustains the right of plaintiff to recover damages. The judgment is reversed in so far as it purports to create a trust for the benefit of plaintiff. The cause is remanded with directions to enter a money judgment for such sum as shall be determined by the court, from the evidence heard upon the. trial, as will result in a fair and equitable division of property as required under Kansas law.”
Plaintiffs in error contend that under this mandate, the trial court could only award the defendant in error a sum of money sufficient to yield a monthly income of $450.00 per month, because, as argued, the first judgment in effect amounted to a finding that a sum sufficient to provide that income would constitute a fair and equitable division of property between defendant in error and her husband at the time of their separation. The contention is stated by counsel for plaintiffs in error as follows: “We submit that all that was necessary for the Trial Court to do and all that it should have done in order to comply with the Mandate of this Court in Cause No. 16003 was to convert a $450 monthly income to its present money value and then to enter judgment for that amount. As above stated, and as a mere matter of mathematics, this would require a money judgment in the neighborhood of $150,000.”
It is apparent from the whole record in the controversy before us that the trial court, in entering the judgment in cause No. 16003, did not attempt to make a fair and equitable division of property as of the date of the sepa[551]*551ration of defendant in error and her husband. It also is clear that the first judgment was not rendered in contemplation of the right of defendant in error to receive outright that portion of the property which would amount to a fair and equitable division of assets. Upon the contrary it affirmatively appears that the trial court then based its judgment upon an appraisal of the needs of the wife. In answer to the contention here made, in entering the judgment now before us, the trial court said: “It will be noted that if the Supreme Court had wished such a judgment entered, based on the finding of the court as to the Trust, it would have directed this court to so enter it; but it sent it back with instructions to enter a money judgment not based alone on the needs of plaintiff but based on a fair and equitable division of the property.” (Italics supplied.)
This indicates clearly that the trial court had not at any time prior to the entry of the judgment now under review, undertaken a property division consistent with the law of Kansas which requires a fair and equitable apportionment thereof.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Moore
delivered the opinion of the court.
We have had this cause before us on a prior occasion. See, No. 16003, United States National Bank v. Bartges, 120 Colo. 317, 210 P. (2d) 600. The facts giving rise to the controversy are fully set forth in that case and no good purpose would be served by repeating them. For [548]*548reasons fully set forth in our former opinion, we remanded the cause for further proceedings, with direction to the trial court as follows: “The cause is remanded with directions to enter a money judgment for such sum as shall be determined by the court, from the evidence heard upon the trial, as will result in a fair and equitable division of property as required under Kansas law.”
Pursuant to this mandate the trial court reconsidered the case and entered formal findings, the pertinent parts of which are as follows:
“The court feels that a just, fair and equitáble division, based on the worth of George P. Dickey as of February 7, 1944, could well be based on a finding that at that date he was worth between five and six million dollars. But so that there be no question as to his worth, certainly the evidence in this case discloses that on February 7, 1944, conservatively and without any question of doubt, George P. Dickey was worth $3,800,000.00.
“Counsel for plaintiff have indicated that they would be satisfied with a third of his worth, but the court feels that such a division would be too small and feels that an allowance of fifty per cent of that amount, or $1,900,-000.00, is a just and equitable division. To be credited on that amount is the sum of $325,000.00, the amount she previously received in the divorce settlement.
“Certainly if Mrs. Bartges had, on February 7, 1944, insisted on and been awarded by the Kansas court a division in kind, she would have profited much more than by the money judgment this court is now entering of $1,575,000.00.”
Judgment was entered in favor of defendant in error in the sum of $1,575,000.00, to review which, plaintiffs in error bring the case here by writ of error. In the specification of points filed by plaintiffs in error, there are set forth sixteen separate grounds upon which reversal of the judgment is urged. Specifications numbered 1 to 10 inclusive relate to matters argued at length by plaintiffs in error in their original briefs and petition for [549]*549rehearing in cause No. 16003. Having once decided those questions on the former hearing we do not consider them further, except to quote a pertinent paragraph from the opinion of Mr. Justice Knous in Ginsberg v. Bennett, 106 Colo. 285, 104 P. (2d) 142, as follows: “Every question now raised by plaintiffs was presented in their original briefs and motion for rehearing in Case No. 13,883, and therein were determined adversely to them. Under such circumstances it is not permissible to resubmit questions previously decided in the former proceeding in error, since the opinion therein and the judgment entered in conformity therewith constituted ‘the law of the case,’ which must control.”
Specification of Points numbered 11 to 16 inclusive are combined and argued by attorneys for plaintiffs in error under one heading as follows: “The Trial Court Failed And Refused To Follow The Mandate Of This Court In Cause No. 16003. Its Findings Of Fact Purporting To Support Its June 7, 1950, Judgment Are Not Supported By The Evidence, But Are Contrary To The Evidence And Are Arbitrary And Capricious. The June 7, 1950, Judgment Is Without Support of Law Or Fact And Is Arbitrary, Capricious And Unprecedented And Said Judgment Is In Violation Of The Right Of ‘Liberties’, The Due Process, Impairment Of Obligation Of Contract And Other Provisions Of The Federal, Kansas And Colorado Constitutions.”
Analysis of specifications 11 to 16 leads us to the conclusion that all questions argued, except those hereinafter discussed, have been answered by our opinion in cause No. 16003, supra.
Questions to be Determined.
First: Is the judgment, of which complaint is here made, consistent with the mandate of this court in cause number 16003?
This question is answered in the affirmative. Counsel for plaintiffs in error contend that the trial [550]*550court did not follow our mandate in cause No. 16003 in the rendition of the judgment to which the writ of error issued herein is directed. The trial court, in the judgment reviewed in cause No. 16003, ordered that plaintiffs in error should establish an irrevocable trust sufficient to provide an income of $450.00 per month for defendant in error, in addition to the benefits she theretofore had received under the terms of a separation agreement with her husband. In considering that judgment we said: “The judgment of the trial court is affirmed in so far as it sustains the right of plaintiff to recover damages. The judgment is reversed in so far as it purports to create a trust for the benefit of plaintiff. The cause is remanded with directions to enter a money judgment for such sum as shall be determined by the court, from the evidence heard upon the. trial, as will result in a fair and equitable division of property as required under Kansas law.”
Plaintiffs in error contend that under this mandate, the trial court could only award the defendant in error a sum of money sufficient to yield a monthly income of $450.00 per month, because, as argued, the first judgment in effect amounted to a finding that a sum sufficient to provide that income would constitute a fair and equitable division of property between defendant in error and her husband at the time of their separation. The contention is stated by counsel for plaintiffs in error as follows: “We submit that all that was necessary for the Trial Court to do and all that it should have done in order to comply with the Mandate of this Court in Cause No. 16003 was to convert a $450 monthly income to its present money value and then to enter judgment for that amount. As above stated, and as a mere matter of mathematics, this would require a money judgment in the neighborhood of $150,000.”
It is apparent from the whole record in the controversy before us that the trial court, in entering the judgment in cause No. 16003, did not attempt to make a fair and equitable division of property as of the date of the sepa[551]*551ration of defendant in error and her husband. It also is clear that the first judgment was not rendered in contemplation of the right of defendant in error to receive outright that portion of the property which would amount to a fair and equitable division of assets. Upon the contrary it affirmatively appears that the trial court then based its judgment upon an appraisal of the needs of the wife. In answer to the contention here made, in entering the judgment now before us, the trial court said: “It will be noted that if the Supreme Court had wished such a judgment entered, based on the finding of the court as to the Trust, it would have directed this court to so enter it; but it sent it back with instructions to enter a money judgment not based alone on the needs of plaintiff but based on a fair and equitable division of the property.” (Italics supplied.)
This indicates clearly that the trial court had not at any time prior to the entry of the judgment now under review, undertaken a property division consistent with the law of Kansas which requires a fair and equitable apportionment thereof. Accordingly the trial court committed no error in refusing to be limited in the division of property to a sum which might produce an income of $450.00 per month.
Second: Was there sufficient evidence before the trial court to warrant the finding that on the date of the separation of defendant in error and her husband the latter was worth at least $3,800,000.00, all of which had been acquired during their married life?
This question is answered in the affirmative. The record discloses the fact that the husband of defendant in error on February 7, 1944, the date of the separation, was the owner of 80 per cent of the common stock of the Dickey Oil Company. In the first trial of this cause, the record of which is incorporated herein, it was shown that in October, 1944, the Stanolind Company purchased the Dickey Oil Company. The accountant called by counsel for plaintiffs in error testified that upon the sale [552]*552of the stock in the Dickey Oil Company, “Mr. Dickey’s share of the sale price of the common stock was $4,888,-000.00.” The record further discloses that the financial statement of the Dickey Oil Company covering the five-month period beginning July 1, 1943, and ending November 30, 1943, showed a net profit of $337,531.18. Counsel for plaintiffs in error argued in the former • case that such a profit for a five-month period would be at the rate of $810,000.00 per annum. They there contended, in connection with another phase of the case that, “Simple mathematics show that it would require a valuation of $13,500,00 to produce $810,000 profit annually at a 6% interest rate; $8,100,000 at a 10% interest rate; and $6,750,000 at a 12% interest rate.” Counsel for plaintiffs in error then argued that, “The use of capitalization of profits as an aid in the determination of the value of corporate stock is no mere novel theory which we are advancing.”
The husband of defendant in error owned other property in addition to the stock in the Dickey Oil Company. While it is true that plaintiffs in error were presenting this evidence of value and argument thereon for a different purpose, the fact remains that the evidence stands in the record and tends to establish that at the time of the separation, the total worth of the .husband of defendant in error was a sum in excess of the $3,800,000.00, which the trial court found to be the minimum conservative value of the property which was subject to division between the husband and wife. While we might lengthen this opinion by references to other parts of the testimony relating to values of property held by the husband, the foregoing is sufficient to show that the finding of the trial court is fully supported by the evidence.
Third: Did the trial court abuse its discretion in dividing the property equally between defendant in error and her husband?
This question is answered in the negative. It is [553]*553agreed that the law of Kansas is applicable to the matters of substance involved in this action. In Harris v. Harris, 169 Kan. 339, 219 P. (2d) 454, decided just a few months ago, it was said: “The rule in this jurisdiction has always been that a division of property made by the trial court in a divorce case will not be disturbed on appellate review unless it is clearly made to appear its action in making that division amounted to abuse of discretion.”
We cannot say that, by the entry of a judgment awarding the wife a sum equal to one half of the amount which the trial court found to be the value of property acquired during the course of a marriage which lasted for twenty years, any abuse of discretion is “clearly made to appear.”
The judgment is accordingly affirmed.
Mr. Justice Jackson and Mr. Justice Alter, who dissented from the opinion of the court in cause No. 16003, do not, by concurring herein, indicate any modification of their dissent from the court’s opinion in said cause. However, accepting the former opinion as the law of the case to which their dissent is already noted, they concur herein.
Mr. Justice Stone and Mr. Justice Holland not participating.