Opinion
Dec. 21, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1398
Poulson, Odell, Peterson & Levine, F. E. Dickerson, Jack Levine, Denver, for plaintiff-appellant.
Phelps, Hall & Keller, Glen E. Keller, Jr., Denver, Cosgriff & Dunn, Peter Cosgriff, Leadville, for defendant-appellee.
COYTE, Judge.
The appellant, plaintiff below, has appealed a division of property order entered by the trial court. The plaintiff married the defendant in 1939. At that time, she owned a small ranch valued then at $30,000. In 1945, the parties executed a separation and property settlement agreement pursuant to a contemplated divorce. However, they reconciled before the decree became final. In 1968, the plaintiff again filed for and obtained a decree of divorce.
With regard to the property settlement, the trial court proceeded as follows: The present value of the ranch owned by the plaintiff since prior to the marriage was set as $161,750. The value of a small tract of land titled in defendant's name was set at $7,000. The value of ranch and farm equipment was set at $12,230 and the value of the livestock at.$49,165. After determining value, the trial court first allowed plaintiff a credit of $30,000, this being the value of the property brought into the marriage by plaintiff; then the court essentially gave each party one-half of the value of the remainder by allowing the plaintiff the choice of retaining the property and paying defendant for his share, or allowing defendant to have it by paying plaintiff for her share, or allowing it to be sold and the money received paid to each party pursuant to their proper share.
I.
Plaintiff first objection to the fact that the trial court disregarded the 1945 separation and property settlement agreement entered into by the parties.
In Larson v. Goodman, 28 Colo.App. 418, 475 P.2d 712, cert. granted, Oct. 29, 1970, we discussed the distinction between a separation agreement and a property settlement agreement where there is a reconciliation between the parties. When a reconciliation takes place, a separation agreement automatically terminates. A property settlement agreement is unaffected by reconciliation unless the parties intend that a change occur in that agreement.
The 'intent' of the parties is the question to be resolved, and whether or not the parties intend to terminate a property settlement agreement by reconciliation is a question of fact. In the present case, the trial court made the specific finding that the parties intended to terminate the property settlement agreement when they reconciled in 1945 and that the agreement had no further force and effect after the reconciliation. The evidence and legitimate inferences to be drawn from the evidence fully support the trial court's findings which are, therefore, binding on us.
II.
Plaintiff disagrees with the value placed upon the real property by the trial court, which used the appraisal report of defendant's expert rather than the report of plaintiff's expert in arriving at its decision.
The evidence concerning the land's value was in the form of an appraisal report submitted by defendant's expert of $161,750, and one by plaintiff's expert of $78,000. If credence were given to defendant's expert rather than plaintiff's, then the $161,750 figure was the proper value to be attributed to the land. When a conflict between admitted expert exists, it is for the trier of fact to resolve such a conflict and to accept such evidence as he deems the more accurate. Kallnbach v. People, 125 Colo. 144, 242 P.2d 222. Since the expertise of these appraisers is not questioned, we perceive no error in the trial court's acceptance of the figure of defendant's expert as the more accurate representation of the property's value.
III.
Finally, plaintiff contends that the division of property as actually made is arbitrary, capricious, and constitutes an abuse of the trial court's discretion and therefore should be reversed.
Essentially, plaintiff contends the trial court erred when it divided the property in half after giving the $30,000 credit to plaintiff. The crux of plaintiff's argument is that the defendant is not entitled to one-half of the property because of his minimal contributions throughout the years of marriage. Plaintiff contends that it was her initial contribution, her ranch, that formed the basis upon which the parties were able to accumulate wealth, and that she should, therefore, retain the greater portion of that wealth.
There is no set formula to be used in all cases. Rather, there are certain factors or guidelines to be followed by the court, including the age of the parties; their individual contributions; the length of marriage; and the ability of each to earn his own living. Nunemacher v. Nunemacher, 132 Colo. 300, 287 P.2d 662.
The weight to be given each factor will vary according to the particular facts found in each case, and for this reason the trial court is entrusted with discretionary powers to make such a division. Here the trial court divided the property in half after making adjustment for the initial contribution of the ranch made by plaintiff.
However, the court in its findings made no comment, nor any findings, and, from the record, did not consider the fact that plaintiff had contributed an additional $43,042.25 in cash during the marriage. She received this money as income from trust funds and from proceeds from the sale of stock which she owned at the time of the marriage. As against this sum, defendant had contributed $1,364.20 outside income earned while working away from the ranch. These extra contributions of plaintiff and defendant should have been considered by the trial court in arriving at its decision. Plaintiff's monetary contribution was substantial, and the court abused its discretion when it ignored this factor.
Judgment reversed with directions that the trial court make findings as to the disposition of the extra contribution in cash made to the ranching operation by plaintiff and as to the effect, if any, of this contribution on the property settlement ordered by the court, and to thereupon enter orders based on such findings.
SILVERSTEIN, C.J., and PIERCE, J., concur.