Opinion
No. 81CA0403
Decided August 4, 1983. Rehearing Denied September 15, 1983. Certiorari Granted January 9, 1984.
Appeal from the District Court of Arapahoe County Honorable John P. Gately, Judge
Elliott, Martinez Allman, Robert L. Allman, for appellee and cross-appellant.
Thomas F. Schaiberger, for appellant and cross-appellee.
Division II.
This is a dissolution of marriage action wherein husband, Werner Sinn, appeals an award of maintenance granted to the wife, Hildegarde Sinn, for two years. Wife cross-appeals, seeking permanent maintenance. We affirm.
On May 31, 1979, the trial court entered a decree of dissolution of marriage. Incorporated into the decree was a separation agreement which had been entered into between the parties. That separation agreement contained the following provision:
" Spousal maintenance. Commencing with the first day of June 1979, for a period of six (6) months, the Husband shall pay to the Wife the sum of $200.00 per month. Said sum is payable through the registry of the court, and shall continue for a period of six (6) months, death or remarriage of the wife, whichever should first occur. The issue of maintenance shall be reviewed by the Court at the end of six (6) months."
In April of 1980, wife filed a verified motion seeking an order for continuing spousal maintenance and for attorney's fees incurred in the prosecution of the motion. Various other motions were filed by the parties, and the matter was heard in February of 1981.
At the conclusion of the hearing, the trial court made the following relevant findings:
"4. The Court has considered the respective income situations of the parties. The Petitioner [wife] is presently receiving $250.00 per month as rent from the occupied unit in the duplex. Gross monthly income of the Respondent [husband] is $1.00 short of $2,000.00 per month. His net take-home pay . . . is $1,036.00 per month. The court has analyzed his respective costs of living as reflected in his affidavit.
"5. The Court has considered the medical condition of the Petitioner and accepts the testimony of Dr. Sturges that the Petitioner presently suffers from the state of emotional dysfunction and the Court has considered the various factors testified to by the psychiatrist that lead to that clinical opinion, and from all that testimony, the Court finds that the Petitioner presently needs financial assistance for a period of time in order for her to obtain part-time work that is compatible with her level of job skills.
"6. The Court has reviewed the spousal maintenance clause and the separation agreement . . . and the Court finds that the parties at the time the Agreement was entered into did contemplate that provision. For six months, spousal maintenance was agreed to with the view that at the end of the six-month period, the medical condition of the Petitioner would be reviewed to see whether or not she was six months later, to continue to need financial assistance. The Respondent has so testified that was his understanding and the Court interprets the clause accordingly, i.e. that it was not a permanent order for spousal maintenance, that it was a temporary order and that the modification provision under the Uniform Dissolution of Marriage Act is not appropriate or applicable in this case."
Based on the foregoing, the court ordered husband to pay maintenance in the amount of $300 per month for two years. In addition, husband was ordered to pay maintenance arrearages in the amount of $100 per month for one year. The parties were ordered to pay their own attorney's fees.
I.
Husband first argues that because the separation agreement was incorporated into the final decree of dissolution, all of its provisions became permanent orders and that therefore no modification of the maintenance provision could be made absent a showing by wife that the original maintenance provision had become unconscionable. We do not agree that this is the applicable rule here.
The legal interpretation and effect of a contract is a question of law. Buckley Bros. Motors, Inc. v. Grand Prix Imports, Inc., 633 P.2d 1081 (Colo. 1981). Accordingly, this court is not bound by the trial court's interpretation, see Reynolds v. Farber, 40 Colo. App. 467, 577 P.2d 318 (1978), and although we reach the same result the trial court did, we do so from a different basis.
First, we note that the provisions of the separation agreement, having been incorporated into the decree, became part of the final order when the decree was entered. Section 14-10-120(1), C.R.S. 1973; In re Marriage of Seymour, 36 Colo. App. 104, 536 P.2d 1172 (1975).
In determining the essential meaning of any agreement, we must undertake an examination of the entire instrument. The agreement must be construed as a whole and effect given if possible to every provision. In re Marriage of Rother, 651 P.2d 457 (Colo.App. 1982). As we read the separation agreement, the parties agreed, between themselves, that husband would provide maintenance for six months at $200 per month, and agreed further that, at the end of that period, the trial court would "review the issue" of spousal maintenance, and enter its own order based on the facts as it found them to be at that time. Thus, contrary to husband's contention, the court was not modifying a maintenance provision which had expired at the end of six months. Rather, the court was acting under the authority of the agreement to review the situation of the parties completely and, in its discretion, to make whatever provision for further maintenance it deemed necessary.
Accordingly, the issue was not one of the unconscionability of the initial maintenance order. The court was free to determine the amount of maintenance to be awarded to wife, if any, and the duration of such payments under the standards of § 14-10-114, C.R.S. 1973. It is evident from the findings of the trial court that all of the relevant factors were considered. Hence, the trial court neither abused its discretion nor exceeded its jurisdiction in awarding further maintenance to the wife. In re Marriage of Icke, 35 Colo. App. 60, 530 P.2d 1001 (1974), aff'd, 189 Colo. 319, 540 P.2d 1076 (1975).
II.
Wife contends on cross-appeal that the trial court erred in limiting the maintenance award to two years, and also in not reserving the power to modify the award. We disagree.
We agree that the award to wife of maintenance in the form of periodic payments for a time certain is at least a "qualified form of maintenance in gross." Moss v. Moss, 190 Colo. 491, 549 P.2d 404 (1976). However, even if it is considered maintenance in gross, such award is not ipso facto erroneous.
The trial court has broad discretion in determining the amount of maintenance and the form of the award, i.e., periodic payments or maintenance in gross. Moss v. Moss, supra. While maintenance in gross is not favored, it is not unacceptable per se, and may be awarded in a proper case. In re Marriage of McVey, 641 P.2d 300 (Colo.App. 1981); Moss v. Moss, supra. And, each case depends upon its own peculiar facts and circumstances. Moss v. Moss, supra. As there is sufficient evidence in the record to support the trial court's decision, we will not overturn it. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453 (1970).
The wife contends that it was error for the trial court not to reserve the power to modify its maintenance award. This is a discretionary decision, and we perceive no abuse.
As this is an award of maintenance in gross, it has the finality of a judgment, and since the trial court did not reserve such power to modify its maintenance award, it is not subject to modification. In re Marriage of Gallegos, 41 Colo. App. 116, 580 P.2d 838 (1978).
Our review of the record reveals that wife's only limitations at the time of trial were primarily emotional. She had recovered from heart surgery on schedule and was able to maintain good health with medication. Wife has skills as a seamstress and has been given two years maintenance by the court to achieve a position in which she could provide for herself. Thus, we cannot say that the court abused its discretion in not reserving a power to modify the award.
The parties' other contentions of error are without merit.
Accordingly, the judgment is affirmed.
JUDGE PIERCE concurs.
JUDGE STERNBERG concurs in part and dissents in part.