Opinion
June 20, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Ben Slosky, Denver, for plaintiff-appellee.
Grant, Shafroth, Toll & McHendrie, P.C., John N. Dahle, Denver, for defendant-appellant.
COYTE, Judge.
Plaintiff (wife) was granted a divorce on February 9, 1967. A property settlement, child support and alimony agreement was incorporated into the divorce decree and thus was made an order of court. On June 21, 1971, the court heard motions filed by each party and found, Inter alia, that defendant owed an arrearage of child support in the sum of $975. It ordered entry of judgment on the arrearage and further ordered that child support for the three children remaining with the plaintiff be increased from $300 per month for the four children to $100 per month per child, and that alimony be reduced from $450 to $350 per month. Defendant appeals. We affirm.
Custody of the four children of the parties was granted to the plaintiff in the divorce decree which provided that, unless certain events not involved in this appeal occurred, defendant would pay to plaintiff for support and maintenance of the children the sum of $300 per month for a 48-month period commencing March 1, 1967. At the expiration of the 48-month period, the parties were to attempt to agree on a monthly amount for child support based on the respective needs and abilities then existing and, upon failure to reach such agreement, either party could apply for a court order.
By mutual agreement the parties' son, Steven, began living with the defendant in June 1969. Defendant continued to send $300 per month child support to plaintiff until May 1970, when he unilaterally reduced the monthly amount to $225. Plaintiff sent Steven $30 or $40 per month from June through December 1969. The arrearage claimed by plaintiff represents the difference between the $300 ordered at the time of the decree and the amount paid from May 1970 until the hearing on June 21, 1971. Defendant asserts that, since he had actual custody of Steven and supported him during this period, he was not in arrears or, alternatively, that he should be given credit for the amount expended for Steven's maintenance since June 1969.
Support had been agreed to and approved as a total amount for the joint benefit of all the children. The amount could not be reduced unilaterally by defendant without an order of the court. Taylor v. Taylor, 147 Colo. 140, 362 P.2d 1027; Engleman v. Engleman, 145 Colo. 299, 358 P.2d 864. The arrearage constituted a debt susceptible of being reduced to judgment which the court could not excuse or modify retroactively. Drazich v. Drazich, 153 Colo. 218, 385 P.2d 259; Garvin v. Garvin, 108 Colo. 415, 118 P.2d 768.
In the order of June 21, 1971, the court awarded legal custody of Steven to the defendant but increased the child support for the three children remaining with plaintiff to $100 per month per child. Defendant contends that the trial court erred in increasing the child support because the evidence was insufficient to support such increase. The parties by the original agreement provided that at the end of the 48-month period the monthly amount of child support should be based on the needs and abilities of the parties at that time. The original child support amount and its planned duration of 48 months were agreed upon in view of the fact that the defendant, a practicing medical doctor during the marriage, was commencing a residency in radiology which would decrease his income substantially on a temporary basis. It was anticipated that at the close of such residency his income would again escalate. The defendant's income has in fact increased from $3,500 per year to $25,000 per year since termination of the residency. Though his capital has decreased throughout the 48-month period, this expenditure of capital was anticipated by the parties since the agreed-upon support and alimony exceeded his residency income. The domestic relations investigation and report furnished to the court in June 1971 contained sufficient evidence of the needs of the children to justify the order entered. Change or modification of support orders lies within the sound discretion of the trial court and orders based upon sufficient evidence will not be disturbed on review. Franco v. Franco, 161 Colo. 507, 423 P.2d 327. The court reduced the alimony by $100 per month from $450 to $350. The defendant asserts that the reduction should have been greater or that the alimony should have been terminated. The evidence indicated that the plaintiff had sought employment so as to obtain sufficient income so that, with the alimony and child support, she could maintain herself and children. The evidence supports the modification of alimony made by the court. The modification of an order for alimony, like other questions of fact, is within the sound discretion of the trial court and in the absence of an abuse of that discretion will not be disturbed on review. Elmer v. Elmer, 163 Colo. 430, 431 P.2d 470. We find no such abuse of discretion in the modification ordered by the trial court.
Judgment affirmed.
SILVERSTEIN, C.J., and SMITH, J., concur.