Opinion
Sept. 1, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 234
Douglas G. McKinnon, Denver, for plaintiff in error.
Howard K. Phillips, Denver, for defendant in error.
COYTE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties appear in the same order as they appeared below and will be referred to in the same manner.
This case develops out of a divorce and subsequent property settlement ordered by the court. The undisputed findings made by the court disclose that the parties were married in 1953, and divorced in November 1966. After a hearing in January 1967 to determine proper disposition of property, the court ordered, that, among other things, plaintiff was to retain a house located at 795 Salem in Aurora, Colorado, and defendant was to receive title to a house located at 1197 Victor in Aurora, Colorado. Furthermore, each was to retain the personal property in his or her possession at the time and each was to be responsible for his or her own debts. In lieu of alimony plaintiff was to receive $2,944.23, a sum representing what was left from the proceeds of sale of certain real property jointly owned by the parties. Shortly after this order was entered, Russell Judy died and his executor has been substituted herein.
Although plaintiff urges several assignments of error, each in substance is based upon the argument that the trial court abused its discretion in making its final determination of the division of property and awarding of alimony.
The evidence revealed that after several years of marriage the parties had accumulated several parcels of real estate as well as substantial amounts of personal property. In general, the order of the trial court gave to each party sufficient real and personal property in order to maintain a comfortable existence.
Plaintiff also asserts that the trial court erred in awarding the lump sum of money in lieu of alimony. We note, however, that the trial court made a specific finding that the defendant was in poor health and would most certainly be unable to earn a substantial income in later years, a finding borne out by the defendant's death shortly after the entry of this order. Under these circumstances, the payment of a lump sum rather than the awarding of periodic payments of alimony surely constitutes no such abuse of discretion as to warrant modification by this court. As stated in Brocato v. Brocato, Colo., 473 P.2d 702, decided August 17, 1970:
'No rule is more firmly established in the law of divorce than that a decreed division of property arising out of the marital relationship is a matter within the sound discretion of the trial court and, if supported by competent evidence in the case, will not be disturbed on review. Moats v. Moats, 168 Colo. 120, 450 P.2d 64; Walden v. Walden, 147 Colo. 221, 363 P.2d 168; Traynor v. Traynor, 146 Colo. 70, 360 P.2d 431; Green v. Green, 139 Colo. 551, 342 P.2d 659; Nunemacher v. Nunemacher, 132 Colo. 300, 287 P.2d 662--663. An examination of the record of proceedings in the present case reveals no abuse of discretion under the facts and circumstances shown by the evidence. We will not disturb the trial court's findings on disputed evidence, nor will we substitute our judgment of what is fair and equitable for that of the trial court.'
The court below held that after the writ of error issued, it had no further jurisdiction over the issues decided, and refused to grant defendant's motion under R.C.P.Colo. 70 to order plaintiff to convey title to the property awarded to defendant. Absent a supersedeas or other stay of execution, the trial court does have continuing jurisdiction over the issues decided at trial. In the instant case there was no stay of execution and, therefore, the trial court should have granted defendant's motion to require plaintiff to convey title to the property. England v. Colorado Agency Co., 145 Colo. 310, 359 P.2d 1; Oman v. Morris, Colo.App., 471 P.2d 430.
Judgment affirmed and cause remanded with directions that an order be issued in conformance with the opinions herein expressed.
ENOCH and PIERCE, JJ., concur.