Opinion
May 30, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 902
Eugene O. Perkins, Colorado Springs, for plaintiff-appellee.
Geddes & Sparks, P.C., Kenneth Sparks, Colorado Springs, for defendant-appellant.
SMITH, Judge.
In 1970, Robert M. Montague filed a complaint in divorce on the grounds of cruelty. Margaret C. Montague answered with a denial and counterclaimed for divorce on the same grounds. Plaintiff subsequently allowed the matter to proceed to decree as a non-contested divorce on the counterclaim in October 1971. Final orders, arrived at after a hearing, are incorporated in the decree. Although the court modified certain of its determinations in response to defendant's motion for a new trial or amendment of judgment, defendant appeals asserting various contentions of error.
I
In its supplemental findings of fact and conclusions of law, the court observed that the two college-age children of the parties, both minors, had not secured employment in their vacation period from school as the court had previously anticipated in entering its final decree. Therefore, the court ordered as follows:
'In the summer months if both of said children are not able to secure the employment and either are with their mother that the plaintiff pay unto the defendant during the time in the summer that the children are with her the additional sum of $100 a month. If both children are employed this amount will not be payable.'
Defendant asserts that the order is so ambiguous as to be impossible to implement in certain situations and that the court erred by its failure to award funds to enable defendant to maintain a home for the children during the childrens' college years.
The order is not ambiguous. Only one interpretation is possible. If in the summer months either or both of the minor children are with the mother, and if either child does not have a job, plaintiff is to pay defendant $100 a month. It should also be noted that should conditions change to the extent that more child support is necessary, a motion may be made to the court for an increase in support. C.R.S.1963, 46--1--5(4).
Although a trust for the college education and maintenance of the minor children was established by order of the court, defendant argues that it was error for no child support to have been given her. She asserts that she should have been provided with additional child support to maintain a home for the children even while they were away in college. Alimony was granted to defendant in the sum of $475 per month to enable her to maintain a home. The trust for college education of the children provides not only strictly educational expenses, but also the living expenses of the children for four years of college. Each child will reach majority prior to the expiration of four years. The supplemental order of the court provides sufficient additional payments for times when the children are not employed and living at home during the summer vacation months. In light of these provisions, we find no merit in this assertion of error.
II
The court determined that the plaintiff was qualified and capable of serving as trustee of the college education trust established by order of the court. Defendant objects to this arrangement and asserts that it is erroneous as a matter of law. The court provided that plaintiff could reclaim any money remaining in the trust after the children had been educated. Defendant argues that this creates a conflict of interest between plaintiff's interest in the remainder and his interest in adequately providing for the children. Defendant does not challenge the power of the court to create the trust or to allow plaintiff to receive the remainder, instead defendant objects to appointment of the remainderman as trustee of the trust. The law is settled, however, that a trustee may be an interested party, such as a beneficiary or remainderman. Crocker Citizens National Bank v. Younger, 4 Cal.3d 202, 93 Cal.Rptr. 214, 481 P.2d 222; Restatement (Second) of Trusts s 99. The court specifically outlined the duties and powers of the trustee, and, should plaintiff violate his fiduciary duty to his children as beneficiaries of the trust, the children have legal remedies against plaintiff for breach of trust. In relation to this assertion of error, there was no error of law, and we perceive no abuse of discretion.
III
Defendant challenges the provision of the order that requires plaintiff to maintain a presently existing $20,000 life insurance policy naming defendant as beneficiary so long as she is single or until she receives an inheritance from her parents. Defendant argues that the court erred because there was no evidence in the record concerning an inheritance to defendant in the future, and thus an order based on such speculation is invalid. Just as the court did not base this order on speculation as to the possible remarriage of defendant, it did not base the order on speculation as to a possible inheritance by defendant. The court merely provided for conditions which would allow defendant to cancel the policy or to change the beneficiary, and inclusion of this provision in the order was not error.
IV
Defendant's final assertion of error is that the court abused its discretion, when considering matters of property distribution, alimony and child support, by failing to award her any portion of an inheritance plaintiff had previously received. While inherited property is not always excluded from consideration in matters of property distribution and alimony, Santilli v. Santilli, 169 Colo. 49, 453 P.2d 606, the general practice is to do so. Knox v. Knox, 155 Colo. 581, 396 P.2d 226; Traynor v. Traynor, 146 Colo. 70, 360 P.2d 431. See 1971 Perm.Supp., C.R.S.1963, 46--1--13(2)(b) (effective January 1, 1972). In the present case defendant received alimony of $475 a month, the family home with an equity value of $22,000, furniture and furnishings valued at $5,000, U.S. Savings Bonds valued at $2,000, and other assets which when combined with the previously stated assets totaled $42,400. Plaintiff was awarded a $600 stamp collection and his automobile as well as his inherited property. Defendant has never been required to work during the marriage and has always been amply provided for by plaintiff. Under the facts in this case, the court properly refused to consider plaintiff's inheritance as part of the marital estate when determining property settlement and alimony. We are constrained to observe once again that matters of alimony and property settlement are within the sound discretion of the trial court. Determinations of the trial court of this nature which are supported by competent evidence, as they are in this case, will not be disturbed on review. Nunemacher v. Nunemacher, 132 Colo. 300, 287 P.2d 662.
Judgment affirmed.
ENOCH and PIERCE, JJ., concur.