Opinion
Dec. 15, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 693
Albert B. Dawkins, Denver, for plaintiff in error.
John B. Howse, Denver, for defendant in error.
DWYER, Judge.
Plaintiff in error was defendant below, and will hereinafter be referred to as the husband. Defendant in error was plaintiff below, and will hereinafter be referred to as the wife.
The parties were divorced in 1967. By a stipulation which became part of the final decree in divorce, the husband obligated himself to pay alimony and child support in the combined amount of $475 per month, until further order of court. However, by January of 1969, he was in arrears in excess of $3,800, which resulted in contempt proceedings being brought against him, and by July of 1969, he was in arrears in excess of $5,000. As a result of the contempt proceedings, he was sentenced to serve ten days in the county jail.
The husband then petitioned the court for a reduction in his alimony and support payments, alleging a material change in circumstances. After a hearing at which he was the only witness, and after consideration of his testimony and affidavit, the court denied his motion, from which denial he now appeals on grounds that the trial court abused its discretion in refusing to reduce the amount of his alimony and support payments.
The husband testified that prior to the divorce in August of 1967, he had been quite successful in the field of creative selling and creative advertising, and that he enjoyed an enviable national reputation as a consultant in his field. At times in his career, while working for different employers, he had earned as high as.$19,000 per year, and for a few years immediately prior to the divorce, had been consistently earning a salary of $15,000 per year.
Shortly before the divorce the husband had changed employers and at the time of the divorce was receiving a salary of $15,000 per year plus expenses. However, six months after the divorce, his employer experienced financial difficulties, resulting in his salary being cut to $120 per week and by September of 1969 had gone into receivership, after which he was discharged. During this period, the husband had sought other employment on several different occasions.
After his discharge, the husband testified that he went to the state unemployment office and sought employment in 12 to 15 establishments to no avail. He then became self-employed, and has since worked as an independent contractor on a job-to-job basis. He testified that his income from this type of employment for any given year might be five thousand to fifty-five thousand dollars, depending upon conditions.
In his affidavit filed on November 20, 1960, he stated that his monthly take home pay was approximately $400; that his total net income from January 1, 1969 to September 3, 1969 was $4,076; that his self-employment income from September 3, 1969 to November 20, 1969 was $1,025. He had assets consisting of cash on hand, money on deposit in banks and other current assets in the amount of $4,269. His liability on installment loans totaled $6,175 and he was obligated to make monthly payments of $289 on this indebtedness.
Subsequent to the divorce the husband had remarried, and was paying $190 per month rent for an apartment and had obligated himself to make installment payments of $117 per month for the purchase of a new car.
In denying the husband's motion for reduction, the court held 'that (he) has failed to show substantial change in circumstances since the aforesaid stipulated order for alimony and support.'
Our Supreme Court in commenting on the power of the trial court to modify a decree for alimony and support money said in Neuhengen v. Neuhengen, 92 Colo. 155, 18 P.2d 454:
'We have determined that in exercising jurisdiction to modify a decree for payment of alimony courts should proceed with caution, and unless it clearly appears that the order of which modification is sought is no longer fair and just, the application should be denied. Low v. Low, 79 Colo. 408, 246 P. 266. And of course that which should cause trial courts to have a care in such matters suggests like pause on review.'
The trial court found from the evidence that the husband had failed to establish a material change of circumstances and on the basis of that finding properly denied the motion for modification. Giving due regard to the opportunity of the trial court to judge the credibility of the witness and considering the entire record, we cannot say the court's finding was manifestly erroneous.
Judgment affirmed.
ENOCH, J., concurs.
PIERCE, J., dissents.
PIERCE, Judge (dissenting).
I must respectfully dissent from the majority opinion. The record makes it undeniably clear that the court's present order requires the defendant to continue to pay $475 per month alimony and child support in the face of unrefuted testimony that his monthly income was only $400 at the time of the hearing--an income less than half of what he made prior to the divorce. Further, he offered a logical and unrebutted explanation for this decrease in income.
I can certainly attribute no significance to the defendant's statement that he might make anywhere from $5,000 to $55,000 in any given year, since it is very clear that he had absolutely no way of predicting his future income, and since he had clearly shown that his income had remained fixed at $400 per month for a significant period of time prior to the hearing. Nor do I think it at all relevant, as my colleagues apparently do, that he had incurred liability for an automobile, modest housing and the support of a new wife; for, under the existing order of the trial court, even if he were to ignore those obligations entirely, he would still be unable to meet his payments to his former wife and children.
On the state of the record before us, I would hold that the trial court abused its discretion in ruling that the defendant had not shown a substantial change in circumstances justifying a reduction in his alimony and child support payments. If a drop in income from $15,000 plus per year to about $400 per month is not a material change in circumstances, then I wonder what does constitute such a change? Without a basis in evidence or findings, the court's order is manifestly unfair and unconscionable and, absent a showing that defendant has unreasonably failed to meet his earning potential, it can only be considered arbitrary and confiscatory. Santilli v. Santilli, Colo., 453 P.2d 606; Morgan v. Reser, 162 Colo. 165, 425 P.2d 42.
While I do not quarrel with the view of the majority that Neuhengen v. Neuhengen, 92 Colo. 155, 18 P.2d 454, giving trial courts wide latitude in matters such as are at issue here, should be controlling, I feel that the facts before us fit the exception recognized in that case that a decree may be disturbed if '(i)t clearly appears that the order of which modification is sought is no longer fair and just, * * *'
The defendant is entitled, in my opinion, to a new hearing on this matter; and unless the court can find on the basis of evidence that he has not shown a substantial change in circumstances or that he is not exerting reasonable efforts to improve his income situation, he is entitled to a reduction of his alimony and support obligations to a level which he can afford.