Opinion
Jan. 11, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 898
Brenman, Ciancio, Rossman, Baum & Sobol, Nathan Lee Baum, Denver, for plaintiff in error.
Russell W. Bartels, Denver, for defendant in error.
DWYER, Judge.
This case was transferred from the Supreme Court pursuant to statute.
Luba Rodman brought this action to obtain a divorce from her husband, William Rodman. The court granted her a decree of divorce and awarded her custody of the three minor children of the parties. Subsequently, the court entered its final orders relative to division of property, alimony for the wife, and support money for the children. The court ordered the husband to pay $150 per month for the support of the children and denied the wife's prayer for alimony. The wife, appearing here as plaintiff in error, seeks reversal of these orders.
The parties were married in 1947. They had three children: a daughter born in 1949; another daughter born in 1951; and a son born in 1961.
The parties owned a home which they had purchased about a year before the divorce. They also owned household furniture which the husband valued at $5,000. The court awarded the equity in the house and the household furniture to the wife. Neither party complains of this division of their property.
The husband was a licensed insurance agent. His earnings were $8,793.50 in 1968 and $4,956.77 for the first ten months of 1969. Before the divorce case was filed, the husband was drawing approximately $900 per month. He was overdrawn and owed his employer $10,869.48. At the time of the hearing, the husband also owed $1,997 on debts incurred for family purposes. After the divorce was filed, the amount which the husband drew from his employer was reduced to about $600 per month, and defendant began repaying his indebtedness to his employer.
The wife was not employed during the marriage. She obtained a job after the case was filed and was earning a net of $224 per month. The wife's evidence was to the effect that she needed $588 per month for herself and her three children. This sum did not include the college expenses of the two daughters.
At the conclusion of the hearing on permanent orders, the trial judge stated that: 'No alimony is allowed at this time.' In the written order which followed, the wife's claim for alimony was denied.
C.R.S.1963, 46--1--5, authorizes the court, after the issuance of a divorce decree, to make such orders, if any, as the circumstances of the case may warrant for alimony. The statute further provides that the court shall retain jurisdiction of the action for the purpose of such later revisions of its orders pertaining to alimony as changing circumstances may require. It has generally been held that such a statute authorizes a court to increase or decrease the amount of its alimony award upon a proper showing of change in circumstance, but such a statute does not authorize a court, after having denied alimony to the wife, to later reopen, amend, or modify its decree and order the payment of alimony. See, e.g., Pierson v. Pierson, 351 Mich. 637, 88 N.W.2d 500; Perry v. Perry, 202 Va. 849, 120 S.E.2d 385; 24 Am.Jur.2d Divorce and Separation s 651. The court's judgment denying alimony is Res judicata as to that question and precludes a later alimony award. See Annot., 43 A.L.R.2d 1387.
It is the general rule that the allowance of alimony, the amount thereof, and the amount of support money for children are matters resting within the sound discretion of the trial court, and such orders will not be reversed on appeal unless this discretion has been abused. Hyde v. Hyde, 169 Colo. 403, 457 P.2d 393; Broome v. Broome, 168 Colo. 259, 450 P.2d 642.
Under the circumstances present here, the trial court clearly abused its discretion in entering an order which denied the wife any alimony, thus precluding a future award of alimony. This was a marriage of long duration. The husband had been gainfully employed throughout the marriage and was employed at the time of the decree. Although he was indebted to his employer at the time of the decree, he was repaying the indebtedness by drawing less than his earnings, and it could be reasonably expected that his finaicial condition would improve. The wife was not employed during the marriage and had obtained employment only a short time before the final orders were entered. The wife's needs and the husband's ability to pay required the entry of an award of alimony which could have been later revised as the changing circumstances of the parties required.
The wife also contends that the amount ordered for the support of the children was inadequate. There is merit to this contention, but the amount awarded is not so grossly inadequate as to constitute an abuse of discretion which would require reversal. The child support order is by statute subject to future modifications upon a proper showing of change of circumstances.
The judgment of the trial court denying alimony to the wife is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
SILVERSTEIN, C.J., and COYTE, J., concur.