Opinion
Nov. 23, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 95
Richard B. Manges, Fort Collins, for plaintiff-appellant.
Hammond ,& Chilson, John H. Chilson, Loveland, for defendant-appellee.
DWYER, Judge.
In proceedings subsequent to the entry of a decree of divorce, the trial court entered orders relative to the support of the minor children of the parties to this appeal. The plaintiff mother, being dissatisfied with the order, has appealed.
The parties were married in 1949. Two children were born to the marriage, one in 1951 and another in 1955. The mother obtained a decree of divorce in 1966 and was awarded the custody of the children. An agreement by which the parties divided their property and stipulated to an order requiring the father to pay $100 per month for the support of the children was incorporated in the decree.
In 1968, the court approved a stipulation between the parties which permitted the mother to take the children to California where she established a residence and obtained employment. On September 27, 1969, the mother filed a motion for an increase of support money. After hearing the motion, the court found that the father was earning $4,500 per year as a salesman and that he had liquid assets of $8,000. The wife, who had been employed as a dietitian, was not working at the time of the hearing, but the court found this to be a temporary situation. The court increased the support order to $150 per month which sum the court found to be 'fair and reasonable under all the circumstances.' In addition, the court ordered the father to pay all medical expenses of the children.
Orders of trial courts changing the amount of child support will not be reversed on review unless it appears that the court has abused its discretion. Broome v. Broome, 168 Colo. 259, 450 P.2d 642. A review of the record in this case does not disclose an abuse of discretion, and the orders of the trial court are accordingly affirmed.
The mother contends that the court was in error in ordering only $150 per month as support money when the court also found that the cost of supporting the two children is 'around $280 or $300' per month. In making an award of support money, the trial court must consider both the reasonable needs of the children and the father's ability to pay. Franco v. Franco, 161 Colo. 507, 423 P.2d 327; Huber v. Huber, 143 Colo. 255, 353 P.2d 379. The wife argues that, because the father had asserts of $8,000 at the time of the hearing, he should have been ordered to pay $280 or $300 per month for the support of the children. Although the father's assets are to be considered, the court, in determining his ability to pay, may also consider other factors which are relevant to the issue. Considering all of the financial circumstances of the father, including his income, assets, and obligations, it cannot be said that the order entered by the court was so grossly inadequate as to constitute an abuse of discretion.
The mother also argues that the court should not have considered the fact that the parties had previously agreed that the father pay $100 per month towards child support. Although the trial judge commented on the fact that the parties had originally agreed on $100 per month, he stated that he was basing the increased order on the present circumstances of the parties. The record does not indicate that the trial judge considered himself bound by the original agreement or that he gave undue weight to the fact that the parties had originally agreed on the $100 per month order.
Finally, the mother argues that the court erred in concluding that it did not have power to make the order effective as of the date the father was served with the motion to increase the support order. C.R.S. 1963, 46--1--5(4), provides:
'The court shall retain jurisdiction of the action for the purpose of such later revisions of its orders pertaining to (support of children) as changing circumstances may require * * *.'
The statutory power of the court to increase the support order was invoked by the filing of the petition for increase in support money. From and after the filing of the petition, the court had the discretionary power to increase the support order and to make such increase effective as of any date subsequent to the filing of the petition.
Accordingly, that portion of the court's order increasing the support money is affirmed, and the cause is remanded for a determination of the effective date of the order.
ENOCH and DUFFORD, JJ., concur.