Opinion
April 25, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Grant, Shafroth, Toll & McHendrie, P.C., Donald M. Burkhardt, Denver, for plaintiff-appellee.
Raymond J. Gengler, Theodore J. Gengler, and Raymond J. Gengler, Denver, for defendant-appellant.
COYTE, Judge.
Defendant appeals from denial of his motion for reduction of support and from an award to plaintiff of attorney fees incurred in connection with defendant's motion.
The parties were divorced January 3, 1969, at which time defendant was paying $375 per month for support of their two minor children under temporary orders. The permanent orders, effective June 4, 1969, required him to pay as child support $300 per month plus monthly mortgage payments on the family home occupied by the plaintiff and children and to pay certain household and medical expenses for benefit of the children. At a hearing on a previous motion for reduction of payment on September 18, 1969, the cash amount of the child support was reduced to $150 per month. At the conclusion of the present hearing on the present motion, the court entered an order denying the motion and awarding plaintiff $500 attorney fees.
Defendant claims that because there has been a material increase in his personal living expenses the order constitutes an abuse of discretion by the trial court. We disagree and affirm.
Before it can reach the issue of an equitable amount of support to be paid, the trial court is confronted with the threshold question of whether the moving party has shown a material change of circumstances since the last prior modification order. Haase v. Haase, 151 Colo. 168, 376 P.2d 698.
At the time of the divorce the defendant was employed as an attorney by the Continental Oil Company. Subsequently, but prior to the first hearing on motion for reduction of payment in September of 1969, he became disabled and unable to work. The change of circumstances defendant relied upon in his present motion was that he had found it necessary to incur additional living expenses of $175 per month for rent and food. However, a reduction of defendant's monthly payments depends upon whether the increase in his expenses materially alters his total financial situation.
During the period in question the source of his income changed from taxable disability payments from his employer to nontaxable disability benefits from an insurance company in the same gross amount. Also during this period his house payment was reduced under a provision of his mortgage insurance policy which provided for a waiver of payments during disability. The result was that defendant had additional available resources ranging from approximately $154 to $173 per month. Meanwhile, the cost of the children's needs was found to have increased. Even though defendant's economic plight may be unfortunate, the change in his overall financial circumstances is not sufficiently substantial to establish an abuse of discretion in the court's order. As stated in Frazier v. Frazier, 164 Colo. 245, 433 P.2d 764:
'We have read the record and though changes in the circumstances of both parties appear therein, we find adequate evidence to sustain the trial court's action, and we find no abuse of discretion or arbitrary action. It is not every change of circumstance that entitles a former husband to a reduction of his support payments.' (Emphasis supplied.)
In regard to the order for attorney's fees, the parties stipulated to the necessity and hourly fees of plaintiff's attorney and agreed that the issue presented was the ability of the parties to pay the attorney's fees. Financial affidavits filed by each party do not clearly establish that the plaintiff was on a plane of equality with the defendant, or that she had sufficient funds to resist defendant's motion. Therefore, plaintiff was entitled to an award for attorney's fees. Peercy v. Peercy, 154 Colo. 575, 392 P.2d 609.
The court ordered defendant to pay a portion of plaintiff's attorney's fees. The awarding of attorney's fees is within the sound discretion of the trial court and will not be disturbed when there is evidence, as here, to support the award. Miller v. Miller, 157 Colo. 213, 402 P.2d 66.
Plaintiff has requested an allowance of attorney's fees and costs incurred in this court. Such request should be directed to the trial court, and, upon proper application to the trial court within thirty days of the date hereof, the trial court is directed to consider the propriety of further orders as the facts may warrant regarding attorney's fees and costs incurred in this appeal. Watson v. Watson, 135 Colo. 296, 310 P.2d 554.
The order of the trial court is affirmed.
DWYER and ENOCH, JJ., concur.