Opinion
May 25, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Litvak, Litvak, Schwartz & Karsh, Lawrence Litvak, Denver, for plaintiff in error.
Sternberg, Madsen & Taylor, Gerald M. Madsen, Littleton, for defendant in error.
Before SILVERSTEIN, C.J., and DWYER and PIERCE, JJ.
PIERCE, Judge.
This case was transferred from the Supreme Court pursuant to statute.
This is an appeal from an action in the district court for the modification of a child support order. The parties appear here in the same order as they appeared below and will be referred to by their trial court designations or by name.
Plaintiff and defendant were divorced in May, 1966. By judgment of court in August of 1966, custody of the three minor children of the parties was awarded to plaintiff. Defendant was ordered to pay the sum of $150 per month per child for their support and was granted reasonable visitation rights. At the time of this judgment, it was agreed that plaintiff and the minor children would be allowed to move to the state of Illinois. By order of court in March 24, 1967, upon a proper showing of change in circumstances, defendant's child support payments were reduced to the sum of $100 per month per child until April 10, 1970, when they would again be raised to $150 per month per child.
In the order appealed from, rendered on May 22, 1969, two matters were before the court: First, a motion by plaintiff for an increase in child support payments, which was granted; support payments were raised to $125 per month. Second, defendant's request that child support be reduced while the children visited him in Colorado. This request was granted and defendant's payments were reduced by one-half while the children were in his custody.
Plaintiff contends that the trial court erred in reducing support payments during visitations with the defendant on the ground that no change of circumstances was shown. We disagree.
It is the settled rule in Colorado that a trial court has no power to modify previous support orders in the absence of change of circumstances. Wattenburg v. Wattenburg, 156 Colo. 349, 398 P.2d 977. In this case, however, the order of court must be viewed as a whole. Plaintiff clearly showed a change of circumstances in that the defendant's income had increased. The court properly awarded her an increase in child support, less one-half of the monthly amount due while the children were in his custody.
We find no error in the trial court's modification and adjustment of child support payments in this case. Modification of child support orders lies within the discretion of the trial court and, in the absence of abuse of discretion, will not be disturbed on review. Franco v. Franco, 161 Colo. 507, 423 P.2d 327; Huber v. Huber, 143 Colo. 255, 353 P.2d 379.
Judgment affirmed.
SILVERSTEIN, C.J., and DWYER, J., concur.