Opinion
No. 71-460
Decided October 31, 1972. Rehearing denied November 21, 1972. Certiorari granted January 22, 1973.
Trial court denied wife's motion for monthly child support payments and precluded further child support by husband until wife restored and properly used funds she had withdrawn from trusts established by divorce agreement for support of children. Wife appealed.
Order Reversed
1. DIVORCE — Motion — Child Support Payments — Sole Issue — Plaintiff's Breach — Fiduciary Duty — Trusts — Immaterial. The sole issue presented to the court in plaintiff's motion was whether defendant should be required to make monthly child support payments, and issue as to whether plaintiff had breached her fiduciary duty in depleting certain trust funds established at the time of the divorce for the support of the children was an issue not before the court and was immaterial to the issue presented.
2. Child Support — Trust Funds — Originally Provided — Not Available — Plaintiff — Obligated — Possessed Means — Failure to Order — Abuse of Discretion. Since the evidence indicates defendant was not providing child support funds at the time of hearing on plaintiff's motion, although he had the obligation and means to do so, and since the needs of the children continued, although trust funds originally provided by defendant were no longer available, the trial court abused its discretion in failing to order defendant to contribute to the current support of the children.
Appeal from the District Court of Arapahoe County, Honorable Marvin W. Foote, Judge.
Martin P. Miller, for plaintiff-appellant.
Epstein, Lozow and Preblud, P.C., Gary Lozow, for defendant-appellee.
The parties in this case were divorced by decree of the district court on July 18, 1968. An agreement by the parties, which included a provision in lieu of child support, was incorporated into the decree.
The agreement gave the plaintiff custody of the parties' three minor children subject to certain visitation rights by the defendant. It also provided for a division of the property of the parties, alimony for the plaintiff, and support for the children. The clause regarding child support stated that the defendant had established two trusts, with trust instruments attached and incorporated. It further stated that "inasmuch as the trusts may be used for the support and benefit of the children of the parties, the husband shall have no further obligation to provide child support."
The agreement for the "A" trust appointed the Central Bank and Trust Company of Denver as trustee with authority to distribute the net income, if any, of the trust for the children and to distribute the principal to the children as they became age 21. It further provided that the payments could be made to or for any of the beneficiaries of the trust at the discretion of the trustee. This agreement was made on November 22, 1967, and relatively insignificant sums were distributed subsequent to the divorce.
The "B" trust agreement, dated July 18, 1968, named the plaintiff and the First National Bank of Denver as co-trustees. The trust property in the amount of $50,000 was to be divided into three equal trust estates, one for the benefit of each child. The trustees were authorized to invade the corpus of the trust, provided that no such invasion could reduce the total trust below $10,500. No further provisions for child support beyond those in the trust agreements were made in the divorce decree.
On September 18, 1970, the plaintiff (wife) filed a motion for an order requiring defendant to pay fixed amount on a monthly basis for the support of the three minor children of the parties. The court denied the motion and stated that funds withdrawn by the plaintiff from trust accounts established in the agreement for support of the children must be restored and used for the support of the children before the defendant could be required to furnish additional sums for support. The plaintiff, appealing from this order, contends that the court erred in failing to award child support on a fixed monthly basis and in requiring her to return monies to the trust fund. We reverse the order of the trial court.
[1] The sole issue presented to the court in the plaintiff's motion was whether the defendant should be required to make monthly payments for the support of the children. In deciding this question, the court had to evaluate the circumstances in existence at the time of the hearing on the motion. Watson v. Watson, 135 Colo. 296, 310 P.2d 554. At the time of the hearing, the trust accounts had been depleted as a source of present support for the children. Whether plaintiff breached her fiduciary duty in the withdrawal and use of the trust funds was not before the court in the hearing on plaintiff's motion and would be immaterial as to the issue presented to the court. Regardless of agreements and dissensions between the parents, the children are entitled to continuing support from their father, the defendant, in accordance with their needs and his financial ability to provide support. McQuade v. McQuade, 144 Colo. 11, 354 P.2d 597.
[2] Viewed in the narrow context of the issue as framed above, the evidence indicates that the defendant was not providing funds for the maintenance and support of his children at the time of the hearing although he had the obligation and the means to do so. The basic concern of the court is the welfare of the children. Their needs continued to exist although the resources originally provided by the defendant were no longer available. As stated in Noonen v. Noonen, 166 Colo. 331, 443 P.2d 723:
"We conclude that the record does establish a change of circumstances; but even if there were no change, as such, in the circumstances, in our view the trial court could still modify the support order here in question. This is because the first support order resulted solely from an agreement between the parties, and was not an order entered after contested hearing before the court. The parties cannot thus tie the hands of a court as concerns the issue of support for minor children."
Limiting the issue to that presented by plaintiff's motion, the trial court abused its discretion in failing to order defendant to contribute to the current support of his children. The rights and obligations of husband and wife arising out of the property settlement agreement and the trust created pursuant to the agreement were not before the court. Those rights and obligations must be determined in appropriate proceedings.
The order of the trial court is reversed and the cause remanded for a hearing to determine a monthly support payment based upon the needs of the children and the defendant's ability to pay.
JUDGE DWYER and JUDGE ENOCH concur.