Opinion
No. 74-311
Decided September 2, 1975.
In dissolution of marriage action, marital and non-marital property was divided and losses in value of property was apportioned between the parties. Wife appealed.
Affirmed
1. NEW TRIAL — Motion — Within 10 Days — Entry of Order — Registry of Actions — Timely Filed. Where trial court entered property settlement order on May 31, 1974, nunc pro tunc April 22, 1974, and that order was noted in the registry of actions on May 31, 1974, a motion for new trial filed within 10 days of May 31 was timely.
2. DISSOLUTION OF MARRIAGE — Decrease in Value — Separate Property — Considered — Utilized — Division of Marital Property — No Abuse of Discretion. Where, in dissolution of marriage action, trial court considered decrease in the value of separate property in arriving at settlement order and utilized that factor in the division of marital property, such a division of property can only be overturned upon a finding that the trial court abused its discretion, and the evidence in the action at issue does not support such a finding of abuse.
Appeal from the District Court of the County of Jefferson, Honorable Daniel J. Shannon, Judge.
Torgan, Hall Kinney, Stevens P. Kinney II, for petitioner-appellant.
Medina Borillo, Theodore A. Borrillo, Joe Clarence Medina, for respondent-appellee.
In this proceeding for dissolution of marriage the wife appeals from the property settlement order alleging that the trial court improperly determined the marital and non-marital property of the respondent husband and erred in apportioning the losses of the respective parties in their non-marital property. The wife also appeals from the child support order. We affirm.
[1] We first address the procedural argument of respondent husband that any alleged errors of the trial court are not properly presented for review by this court, appellant having failed to preserve these errors by a timely motion for new trial. The trial court issued its order of May 31, 1974, nunc pro tunc April 22, 1974. C.R.C.P. 59(b) requires that a motion for new trial be made within 10 days "after the entry of the judgment" or such further time as the court may allow. C.R.C.P. 58(a) provides that notation of judgment in the registry of actions by the clerk as provided by C.R.C.P. 79(a) constitutes the entry of the judgment. Here, the order was noted in the registry of actions on May 31, 1974, and the motion for new trial was filed within 10 days from that date. Therefore, the motion for a new trial was timely filed. City and County of Denver v. Just, 175 Colo. 260, 487 P.2d 367.
The parties were married for 26 years and have two children. The wife received custody of both children and was awarded child support in the amount of $150 per month. The wife was not employed at the date of the hearing but is a registered nurse and was employed throughout the majority of the marriage. The husband was employed and had a monthly net income of $562.19.
The wife had inherited property during the marriage which had decreased in value from the date of acquisition to the date of the hearings by $12,477. The court found the husband also had inherited property during the marriage, and, in addition, during the marriage he had received certain gifts of cash and property. The court found the present value of his gifts and devises to have decreased by $6,800.35 from the dates of their acquisition. The court took into account the decrease in value of each party's non-marital property in dividing the marital property. It awarded the unencumbered family home, valued at $36,000, to the wife and she was ordered to execute and deliver to the husband a promissory note in the amount of $11,123.99 payable on sale of the family home or emancipation of the youngest child. The husband was awarded stocks valued at $12,576.
The basic argument advanced by the wife is that the trial court improperly determined the non-marital property of the husband. She alleges that the trial court valued the same property twice, once as inherited and once as gifted property. She argues that a correct determination would have shown that the respondent's inheritance and gifts have increased in value since acquisition, and citing § 14-10-113(4), C.R.S. 1973, she urges such increase is to be considered as marital property.
The record supports the finding that the gifts received by the husband and later sold were distinct and separate from the property inherited. The record also supports the finding that the husband's property inherited during the marriage was valued at $16,908.86 at the time of inheritance, and that the gifts of cash and property received during the marriage were valued at $29,415.49 at the time of acquisition. The evidence is uncontradicted that the present value of these gifts and inherited property is $39,542. Since the evidence supports the findings of the trial court, they may not be disturbed on review. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453.
[2] The wife acknowledges that under § 14-10-113(1)(d), C.R.S. 1973, the court may consider as a relevant factor in dividing marital property the decrease in the value of separate property. She argues, however, the the trial court may not apportion a loss in value of separate property between the parties. The statute provides that the trial court shall consider this factor among the other factors set forth in § 14-10-113(1), C.R.S. 1973, and then divide the marital property "in such proportions as the court deems just." Such division may only be overturned upon a finding that the trial court abused its discretion, and the evidence before this court does not support such a finding of abuse. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006; In Re the Marriage of Armbeck, 33 Colo. App. 260, 518 P.2d 300.
The wife alleges that the court abused its discretion in not awarding more for child support. We do not agree. Considering all the evidence before the trial court, including the husband's net monthly income, his poor health and the finding that the wife's earning ability was superior to the husband's, the record is insufficient to establish an abuse of discretion in the order of $150 child support for the two children.
Judgment affirmed.
JUDGE COYTE and JUDGE BERMAN concur.