Opinion
No. 77-579
Decided June 1, 1978.
From denial of her motions to increase maintenance and for a modification of the property division order entered in dissolution of marriage action, wife appealed.
Affirmed
1. DISSOLUTION OF MARRIAGE — Maintenance in Gross — Principles Applicable — Under Divorce Statute — Not Modified — Uniform Act. The principles regarding maintenance in gross that were applicable under the divorce statute have not been modified by the Uniform Dissolution of Marriage Act.
2. Maintenance — Fixed and Determinable Amount — Maintenance in Gross — — Not Modified — Unless Specific Reservation. Where maintenance is in a fixed and determinable amount to be paid either in a lump sum or is for a specific amount to be paid over a definite term, unless the power to do so is expressly reserved by the court, it is maintenance in gross and has the finality of a judgment, and thus, is not subject to modification on the basis of a change in circumstances.
3. APPEAL AND ERROR — Allegations of Misrepresentation — Property Division Order — Untimely — Trial Court Without Authority — Modify Order — Erroneous Basis — Trial Court Ruling — Not Considered — Court of Appeals. Where, in dissolution of marriage action, wife alleged that husband had misrepresented the value of marital assets, but did not raise that allegation until more than two years after the entry of the property division order, that challenge to the property division ruling was not within the time permitted by C.R.C.P. 60(b), and thus, the trial court had no authority to modify the property division order; consequently, even if the basis of the court's refusal to consider the wife's challenge to that order was erroneous, the matter will not be considered further by the Court of Appeals.
Appeal from the District Court of the City and County of Denver, Honorable Mitchel B. Johns, Judge.
George T. Ashen, for appellee.
Gary L. McCorkhill, for appellant.
The parties' marriage was dissolved and permanent orders were entered on June 8, 1973. The permanent orders divided the marital assets and required the appellee (husband) to pay maintenance to the appellant (wife) until June 3, 1976, at which time maintenance was to terminate. On August 19, 1975, the wife filed a motion to increase maintenance, alleging a substantial change in circumstances. The wife also moved for a modification of the permanent orders relating to property division, alleging that the husband had concealed the existence of one marital asset and had misrepresented the value of certain others.
At a hearing on the wife's motion which was held on February 2, 1977, the trial court found that the husband had indeed concealed the existence of one marital asset. Based upon such finding the court awarded the wife an additional sum as a supplement to the property division. Neither of the parties challenges this ruling on appeal.
As to value of the other assets which the husband allegedly misrepresented, the trial court found that prior to the hearing on permanent orders the wife had an adequate opportunity to ascertain the true value of these assets. Accordingly, the court concluded that the wife could not challenge the property division on the basis of the husband's misrepresentations as to the value of such assets. The trial court also concluded that since maintenance had terminated on June 3, 1976, which was prior to the time the wife's motion was heard, the court lacked jurisdiction to modify the maintenance award. It therefore refused to do so.
I.
Appealing from these adverse rulings, the wife contends first, that since her motion to increase maintenance was filed prior to June 3, 1976, the date maintenance was to terminate, the court did have jurisdiction to modify the maintenance award. We hold that the trial court, by virtue of the nature of the original award, was precluded from modifying it; therefore, the date of the filing of the motion is irrelevant. In Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972), our Supreme Court stated that:
"The granting of alimony in gross, or lump sum alimony, as it is sometimes called, provides a definite and final judgment which the court cannot later modify . . . ."
[1,2] The principles regarding maintenance in gross stated in Carlson v. Carlson, supra, have not been modified by the Uniform Dissolution of Marriage Act, § 14-10-101, et seq., C.R.S. 1973. See In re Marriage of Icke, 35 Colo. App. 60, 530 P.2d 1001 (1974), aff'd, 189 Colo. 319, 540 P.2d 1076 (1975). This is true notwithstanding dicta contained in In re the Marriage of Lodholm, 35 Colo. App. 411, 536 P.2d 842 (1975), indicating to the contrary. In that case this court referred to § 14-10-122(1), C.R.S. 1973, which provides as follows:
"Except as otherwise provided in section 14-10-112(6), the provisions of any decree respecting maintenance or support may be modified as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable. . . ."
We do not interpret this section as conferring upon the courts of this state a broader power to modify than existed prior to the statute. Rather, we view it as preclusive, limiting the court's traditional power of modification to installments not yet due. Even then, modification is proper, only where a change of circumstances makes continuation of the existing order unconscionable. Hence, we conclude that where, as here, maintenance is in a fixed and determinable amount to be paid either in a lump sum or is for a specific amount to be paid over a definite term, unless the power to do so is expressly reserved by the court, it is alimony in gross and has the finality of a judgment, and thus, is not subject to modification on the basis of a change in circumstances. See Moss v. Moss, 35 Colo. App. 53, 531 P.2d 635 (1974), aff'd 190 Colo. 491, 549 P.2d 404 (1976).
II.
The wife also contends that the trial court erred in ruling that she could not challenge the property division on the basis that the husband had misrepresented the value of marital assets, which ruling was premised on the court's finding that the wife had had adequate opportunity to determine the true value of the assets in question.
Section 14-10-105(1), C.R.S. 1973, provides that, except as otherwise expressly provided, the Colorado Rules of Civil Procedure apply to all proceedings under the Uniform Dissolution of Marriage Act. In re Marriage of Franks, 189 Colo. 499, 542 P.2d 845 (1975). There are no specific provisions in the Act relating to the modification of property division which create an exception to the provisions of C.R.C.P. 60(b). And, § 14-10-122(1), C.R.S. 1973, expressly provides that: "The provisions as to property disposition may not be revoked or modified unless the court finds the existence of conditions that justify the reopening of a judgment."
[3] C.R.C.P. 60(b) provides that a motion for relief from judgment on the basis of fraud, misrepresentation, or other misconduct of an adverse party must be filed within six months of the date the judgment was entered. Hence, even if the basis of the trial court's ruling was erroneous, as the wife asserts, we decline to address that issue since the wife's motion was untimely, and thus the trial court had no authority to grant the relief requested. Love v. Rocky Mountain Kennel Club, 33 Colo. App. 4, 514 P.2d 336 (1974).
Our disposition on these grounds, however, would not preclude the wife from bringing an independent action to seek relief from the trial court's judgment. See C.R.C.P. 60(b); Dudley v. Keller, 33 Colo. App. 320, 521 P.2d 175 (1974).
Judgment affirmed.
JUDGE PIERCE and JUDGE KELLY concur.