Opinion
March 26, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1059
[Copyrighted Material Omitted]
Page 1060
Lattimer, Robb & Naylor, Richard D. Robb, Pueblo, for plaintiff.
Kettelkamp & Vento, P.C., Joseph A. Vento, Pueblo, for defendant.
SILVERSTEIN, Chief Judge.
This case consists of appeals from two orders entered in a divorce action in which a decree was entered on August 5, 1969, granting a divorce to plaintiff husband. Plaintiff appeals from permanent orders entered on March 13, 1972. Defendant, wife, appeals from an order entered January 31, 1973, denying her motion to increase child support. We affirm both orders.
The proceedings leading to the husband's appeal are these. After a hearing on July 28, 1969, the trial court ordered the husband to pay temporary alimony of $250 per month and temporary support of $250 per month per child for the parties' three children, a total of $1,000 per month, beginning August 1, 1969. The divorce decree incorporated the orders for temporary alimony and temporary child support and directed the parties to set a hearing for permanent orders within a reasonable time. Hearings on permanent orders were held on May 8, 1970, and May 13, 1970, at the close of which the trial court took the matter under advisement.
On July 27, 1971, by stipulation of the parties, the court appointed a master to determine the amount of the husband's income and the amount necessary to support the wife and three children. The master's report was presented to the court on December 27, 1971.
The trial court entered final orders on March 13, 1972, at which time custody of the parties' three daughters was awarded to the wife, the property was divided between the parties, and the husband was ordered to pay alimony of $300 per month and child support of $300 per month for each of the three children, and to pay the master's fee of $675.
On appeal, the husband asserts that the trial court abused its discretion in increasing the alimony and support payments without evidence of a substantial change in the circumstances of the parties; in incorrectly determining the cash values of life insurance policies; and in ordering him to pay an orthodontist's bill incurred after the entry of the divorce decree. He also asserts the court erred in considering the report of the master in entering the order, and in requiring him to pay the master's fee.
I
As to the increase in alimony and child support, temporary alimony is not definitive of the wife's entitlement to support under permanent orders, and a showing of change of circumstancs is not an essential elements for the trial court's consideration in establishing permanent alimony. MacReynolds v. MacReynolds, 29 Colo.App. 267, 482 P.2d 407. Cohan v. Cohan,
II
The husband asserts that the property of the parties was inequitably distributed as a result of the trial court's error in determining the cash value of his life insurance policies which occurred through failure of the court to deduct an outstanding policy loan of $4800 from the cash value. This was pointed out to the court in a motion for new trial, but the court declined to alter the distribution.
In its decree, the court stated that the assets accumulated by the parties 'should be divided on a substantially equal basis.' The assets listed in the decree were the equity in the family home and the furniture, which had a value of approximately $16,500, awarded to the wife, and the life insurance policies which had a corrected cash value of about $8,100, which were awareded to the husband. The husband contends this distribution was not 'substantially equal.' However, these assets standing alone do not present the complete picture. The record discloses that the husband was a surgeon, having a net income after taxes in 1970 of $49,000. The value of his office and medical equipment, which he retained, was not mentioned in the decree.
In dividing the parties' assets, the court is not required to divide it equally, but must take into account all of the facts and circumstances involved. The division of property lies within the sound discretion of the trial judge, Hyde v. Hyde, 169 Colo. 403, 457 P.2d 393, and if supported by competent evidence, its determination will not be disturbed. Brocato v. Brocato, 172 Colo. 390, 473 P.2d 702. The record discloses that the amount of property awarded to the husband is not so disproportionate to the total assets of the parties as to constitute an abuse of discretion.
III
The husband also appeals from that portion of the final order which directs him to pay 'the balance due on the indebtedness owed for the orthodontic work done on the children.' The wife testified she had been unable to pay the orthodontist's bill out of the temporary support allowance. The husband contends that he cannot be required to pay an obligation incurred subsequent to the entry of the divorce decree. This contention is without merit. The orders relating to child support at the time of the divorce decree were only temporary and the trial court retained continuing jurisdiction over matters concerning the care and support of the minor children. Thus, having in mind the best interests of the minor children, the trial court had the discretion to determine the liability for the children's orthodontic expenses up to the date of the final order See Noonen v. Noonen, 166 Colo. 331, 443 P.2d 723, and Russ v. Russ, 128 Colo. 321, 262 P.2d 264.
In response to plaintiff's argument that no particular date is specified for determining the amount owed, the date of the permanent order, March 13, 1972, is the applicable date.
IV
The husband contends it was error for the court to consider the master's report because, by failing to hold any hearings, the master had failed to comply with C.R.C.P. 53. The master was appointed solely to determine the monthly income of the husband in 1969, and 1970, and the amount necessary and proper for the monthly support and maintenance of the wife and the three children. The master based his report on the husband's 1969 and 1970 income tax returns and on figures supplied by husband's bookkeeper, a certified public accountant; and on personal records of the wife. No hearings were held and no other evidence considered. The husband contends he should have had the right to cross-examine the wife as to her expenses.
Under the facts of this case we do not consider the master's failure to hold an evidentiary hearing to be reversible error. Attached to the wife's answer to the complaint was a fully itemized list of living expenses for her and the three children, showing monthly expenses of $1380. At two hearings before the court the wife was cross-examined relative to these expenses. The master's report shows her actual expenses were about $1,025 a month in 1970 and, with allowance for cost of living increase, an estimated $1,100 per month, exclusive of orthodontist fees. The evidence before the master merely corroborated the evidence at the hearings.
Further the master's report was presented at a court hearing attended by counsel for both parties, at which no objections to the report were made. The record also contains no written objections as required under C.R.C.P. 53(e) (2). Therefore we find no merit in plaintiff's challenge to the procedure followed by the master.
It was within the trial court's discretion to assess the costs of the master's report to the husband. C.R.C.P. 53(a) provides that the compensation to be allowed to a master shall be fixed by the court, and may be charged upon such of the parties as the court may direct.
In her appeal the wife seeks to set aside an order that denied her motion to increase child support for the oldest daughter from $300 to $586 a month. In September 1972, the husband moved for a reduction of alimony on the ground that the wife was employed full time as a teacher. In October 1972, the wife sought the increase in support on the grounds that the oldest daughter was entering college, that she desired to go to Denver University, where she had been accepted, and that the additional support was necessary to pay the tuition and other expenses. Following extensive hearings, the court denied both motions. The husband does not appeal the denial of his motion.
In answer to the wife's motion, the husband asserted that the support he was paying pursuant to court order was sufficient to provide the daughter's education at a state supported institution and that the daughter would receive $900 a year for her education from a trust fund established for that purpose by her grandmother.
Extensive hearings were held which established that at that time the daughter was attending Southern Colorado State College, that she desired to go to Denver University, that the wife concurred with the daughter's desire, that the cost at Denver University was about twice that at Southern Colorado State, and that she was entitled to receive $900 a year from the trust fund, as alleged by the husband. The court made detailed findings of fact and determined that the daughter would benefit from a college education, 'but there is no showing she requires attendance at Denver University or any expensive private school.' The court further found that the funds already being provided were sufficient to meet her needs. These findings are all supported by the evidence.
The wife relies on Van Orman v. Van Orman, 30 Colo.App. 177, 492 P.2d 81, in seeking reversal of the order. In that case we stated that the child's custodian could make the decision as to where the child should go to college, subject however to the husband's ability to pay and to approval of the court. Thus the ultimate decision was left to the court in the exercise of its sound discretion. In exercising this discretion, the court, as in other matters concerning minors, must first consider what is best for the welfare of the child. Under the facts disclosed by the record we find no abuse of discretion here and that the findings of the court are supported by the evidence. These findings are therefore sustained. Pippinger v. Pippinger, 145 Colo. 140, 357 P.2d 911. The wife contends the court erred in not increasing the award for alimony and support for the other two children. However, the wife's motion did not request modification of the original order as to these items, and these issues were not raised until the filing of a motion for rehearing. Since the issues were not before the trial court, they cannot be considered in this appeal. Marsaglia v. Marsaglia, 170 Colo. 510, 462 P.2d 588.
The wife also asserts that the trial court's award of attorney fees was inadequate. This matter lies within the sound discretion of the trial court. We find no abuse of that discretion here and therefore will not disturb the award. Stovall v. Crosby, 171 Colo. 70, 464 P.2d 868. The case relied on by the wife, Porter v. Porter, 67 Ariz. 273, 195 P.2d 132, is not compatible with the law in Colorado.
Orders affirmed.
SMITH and RULAND, JJ., concur.