Opinion
No. 73-185
Decided March 19, 1974. Rehearing denied April 9, 1974. Certiorari granted June 17, 1974.
Defendant in divorce action who intended to live permanently in Norway appealed the entry of a child support order and the issuance of a charging order against defendant's joint venture interest in certain Colorado real estate.
Judgment Modified and as Modified Affirmed.
1. DIVORCE — Defendant — Not Relieved — Support Obligation — Reasonable Allowance — Not Precluded — Disinclination to Work. Merely because defendant in divorce action desires to work in the development of a ski area in Norway on a long-range investment does not relieve him of his obligation to support his children, and the fact that a person is without funds and without profitable employment does not preclude the allowance of reasonable alimony and support where nothing but a disinclination to work, regardless of the motive therefor, interferes with his ability to earn a reasonable living.
2. Support Award — Must Weigh — Ability to Pay — Against — Reasonable Needs — Children — Within Discretion — Trial Court. In making an award of child support, a trial court must weigh the father's ability to pay against the reasonable needs of the children, and the determination of a proper support award is a matter within the sound discretion of the trial court and will not be disturbed on review unless an abuse of discretion is clearly demonstrated.
3. Charging Order — Against Specific Property — Secure Payment — Child Support — Proper — Defendant — Live in Norway — Property in Colorado. Where defendant in divorce action intended to live permanently in Norway and visit once or twice a year in Colorado, and where he had property which could be reached in Colorado in the event he should refuse to comply with the orders of court for payment of child support, but if he were to sell his property and fail to make the required payments, it would become difficult, if not impossible, to enforce the court orders, the trial court properly entered a charging order against the proceeds of specific property owned by defendant to secure the payment of defendant's total child support obligation.
4. Charging Order — Assure Payment — Child Support — Defective — Contingency — Defendant's Death — Modified. While trial court in divorce action properly entered a charging order against defendant's property to assure payment of child support, the order entered was defective in that it did not provide for the contingency of defendant's death prior to the time that all the children reach 18 years of age or become emancipated, and accordingly must be modified to provide for such contingency.
Appeal from the District Court of the City and County of Denver, Honorable John Brooks, Jr., Judge.
Morrato, Gueck Colantuno, P.C., I. Thomas Bieging, for plaintiff-appellee.
Dickerson Levine, Jack Levine, for defendant-appellant.
Defendant appeals from an order of the trial court in this divorce action ordering him to pay child support and, in order to secure the payment of such support, issuing a charging order against defendant's joint venture interest in certain real estate.
He contends that he has no current income, that the wife was awarded all liquid assets of the parties in the property settlement, and that he should not be required to pay child support for his three children of $150 per month per child as ordered by the court.
[1] Defendant was awarded substantial property in the property settlement and has a demonstrated earning ability. Merely because he desires to work in the development of a ski area in Norway on a long-range investment does not relieve him of his obligation to support his children, and "the fact that a person is without funds and without profitable employment has been held not to preclude the allowance of reasonable alimony and support where nothing but a disinclination to work, regardless of the motive therefor, interferes with his ability to earn a reasonable living." Rapson v. Rapson, 165 Colo. 188, 437 P.2d 780, Karkanen v. Valdesuso, 33 Colo. App. 47, 515 P.2d 128.
[2] In making its award of child support, a trial court must weigh the father's ability to pay against the reasonable needs of the children. Franco v. Franco, 161 Colo. 507, 423 P.2d 327. The determination of a proper support award is a matter within the sound discretion of the trial court, and on review the order will not be disturbed unless an abuse of discretion is clearly demonstrated. Cohan v. Cohan, 150 Colo. 249, 372 P.2d 149. Our examination of the record here satisfies us that the trial court did not abuse its discretion and that the award of child support was proper.
The court in its child support order provided in part as follows:
"3) That the Court is aware of the problems associated with payment of child support in this case. The problems stem from the fact that the Defendant is presently residing in Norway and intends to reside in that country. Therefore, the Court orders that Defendant pay child support in a lump sum amount of Fifty Two Thousand Dollars ($52,200.00). This sum is based upon the financial conditions, abilities and needs of the parties and the minor children of the parties and was computed by the Court based upon a formula which provides support for each individual child in the amount of One Hundred Fifty Dollars ($150.00) per month until such child may reach the age of eighteen (18) years. In the event one of the children should die before reaching the age of eighteen (18) years, the unused sum attributable to that child shall be returned to the Defendant. Further, in the event any of the children shall become emancipated before reaching the age of eighteen (18) years, the unused sum attributable to that child shall also be returned to the Defendant.
It is the intent of this Court that the lump sum child support payment shall discharge the obligations of the Defendant with respect to child support unless there be some change in circumstances which should require review of the question of child support by the Court.
"4) To secure payment of the lump sum child support the Court shall issue a charging order against the Defendant's joint venture interest in that property described as the Maryland Creek Ranch. Said charging order shall require any profits or proceeds that the Defendant may receive from the property known as Maryland Creek Ranch to be made in payment of the lump sum child support. Any profits or proceeds from this property shall be paid into the Registry of the Denver District Court to be distributed as per the formula described above. In the event the profits or proceeds exceed Fifty Two Thousand Two Hundred Dollars ($52,200.00) then the amount that exceeds this sum shall be paid to the Defendant."
C.R.S. 1963, 46-1-5(3), provides as follows:
"The Court shall have the power to require security to be given to insure enforcement of its orders, in addition to other methods of enforcing court orders now or hereafter prescribed by statute or by rules of civil procedure."
In Urling v. Urling, 107 Colo. 186, 109 P.2d 1060, the court required defendant to establish a trust to secure payments of alimony and child support. In commenting on the propriety of the orders of the trial court, the court stated:
"Unless it shall clearly appear that the trial court, in resolving the problems arising under the evidence appearing in the record, acted unreasonably or arbitrarily in making the orders and awards of which complaint is made, it is not proper for this court to modify or set them aside. There is no difficulty in laying down the rule that governs. There is difficulty in applying it, because what is, and what is not, reasonable and where a reasonable discretion ends and arbitrary action begins are not susceptible of mathematical demonstration. The application of the rule necessarily introduces the factor of individual judgment, which, as between different persons in the same case, is a variable quantity."
Defendant intends to live permanently in Norway and visit once or twice a year in Colorado. He has property which can be reached in Colorado in the event he should refuse to comply with the orders of court for payment of child support, but if he were to sell his property and fail to make the required payments, it would become difficult, if not impossible, to enforce the court orders.
[3] The charging order was against specific property owned by defendant. It did not require defendant to do anything with his property that he was not then doing. The order merely required that any profits or proceeds from the property to the extent of $52,200 be paid into the Denver District Court so that it could be paid over to plaintiff for the benefit of the children at the rate of $150 per month per child, with contingency provisions in the event of the death or emancipation of a child prior to becoming 18 years of age or certain other changes of circumstances. The statute above quoted was passed specifically to insure payment of child support where there would be no effective way for the court to enforce its orders, except for the charging order as above provided. Thus, we conclude that, under the circumstances, the trial court properly entered a charging order against defendant's property.
[4] However, the final order is defective in that it does not provide for the contingency of defendant's death prior to the time all the children reach eighteen years of age or become emancipated. In Giambrocco v. Giambrocco, 161 Colo. 510, 423 P.2d 328, the court invalidated an order of the trial court which required the spouse to convey property in trust for the benefit of her children in fulfillment of the obligation for child support. In Giambrocco, the court quoting from Menor v. Menor, 154 Colo. 475, 391 P.2d 473, stated:
"The obligation of the defendant is to provide reasonable support for his children according to their need, within the range of his ability. A father of children is under no obligation to settle any property upon his children, or to deed them an interest in any asset."
Accordingly, the final order is modified to the extent that in the event funds are deposited in court pursuant to the order of court the clerk shall immediately deposit the same so as to accrue interest which shall be credited to the account. It is further modified so that in the event of the death of defendant the charging order shall terminate after payment of any arrearage owed for child support at the time of defendant's death.
The judgment is modified and, as modified, affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE SMITH concur.