Opinion
Nov. 16, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 78
Raymond C. Johnson, Littleton, for plaintiff in error.
Richard B. Bauer, Westminster, for defendant in error.
DUFFORD, Judge.
The parties are before us in reverse of their trial court positions. We shall refer to them as 'husband' or 'wife.'
These parties were divorced by a decree of the district court entered August 22, 1966, nunc pro tunc as of August 16, 1966. Final orders concerning matters of child support, permanent alimony, division of property, attorneys' fees, and costs were also entered by the trial court on September 7, 1966, nunc pro tunc as of August 22, 1966. That portion of the trial court's 1966 decree relating to the division of property between the parties is as follows:
'3. As to the property of the parties, its disposition shall be as follows:
'a. The residence at 6593 South Washington Street, title to which is presently in both names as joint tenants with right of survivorship, is awarded to the Defendant (wife), and the Plaintiff shall forthwith convey to the Defendant all of his interest therein, subject only to the first and second liens of record in favor of Kassler and Company and University Hills Bank. The Plaintiff shall pay the loan payments (including principal, interest, taxes, and insurance) to Kassler and Company and to the University Hills Bank, as and when due. The award of the family home to the Defendant and the Order of this Court made herein that the Plaintiff pay the balance of the outstanding first and second lien obligations thereon is and constitutes a recognition by this Court of the contribution made by the Defendant to the business enterprise of the Plaintiff, all assets of which are hereinafter awarded to the Plaintiff, including the stock in the building corporation held jointly by Plaintiff and Defendant.'
In June of 1969, the husband filed a motion for a modification or termination of his alimony obligations. After a hearing on the motion, the trial court entered an order of October 3, 1969, nunc pro tunc as of September 15, 1969, by the terms of which it modified the provisions of the above-quoted paragraph 3a and also the provisions relating to alimony set forth in its decree of September 7, 1966. The effect of such modification was to specify that the monthly loan payments which the husband was to make under the provisions of said paragraph 3a would be added to and constitute a part of the husband's alimony obligations. In so ordering, the trial court rationalized that, by adding the amount of the monthly mortgage payments to the monthly alimony amounts, the mortgage payments would become deductible items in the computation of the husband's income taxes.
The wife has appealed the trial court's orders of modification, contending that they represent a modification or amendment of the final property division orders made by the court in 1966, and that accordingly they are invalid.
The wife is correct in her position. It is obvious from the provisions of paragraph 3a of the trial court's 1966 decree that the wife's divided share of the property owned by her and her husband was the encumbered title to the family home And also a decree--imposed obligation on the part of the husband to discharge the monthly loan payments which were payable to Kassler and Company and to the University Hills Bank. The fact that the property award made to the wife included an obligation on the part of the husband to make future payments does not make the division of property which was made by the trial court any less final in its nature. See Phillips v. Phillips, 171 Colo. 127, 464 P.2d 876; Lay v. Lay, 162 Colo. 43, 425 P.2d 704; Bell v. Bell, 156 Colo. 513, 400 P.2d 440.
Under Colorado law, there is no continuing jurisdiction in our divorce courts to modify a final decree insofar as it pertains to property rights in the absence of certain factors not present here. C.R.S. 1963, 46--1--5(4); Ferguson v. Olmsted, 168 Colo. 374, 451 P.2d 746.
The trial court's order of modification is reversed, and this case is remanded with directions that the trial court dismiss the husband's motion and reinstate its original decree.
COYTE and ENOCH, JJ., concur.