Opinion
Roger E. Stevens, Boulder, for plaintiff-appellant.
Thomas D. Day, Boulder, for defendant-appellee.
COYTE, Judge.
The parties were husband and wife, having been married on July 14, 1948. They signed a separation agreement on March 1, 1968, which was to be incorporated into any divorce decree and which provided in part that the wife should be paid $5000 when the agreement was executed and $5000 when a decree of divorce was entered. The husband also agreed to pay $200 per month alimony.
In the divorce action which was commenced by the husband the wife asked that the agreement be set aside. The trial court ruled that the agreement was valid and should not be set aside. A divorce was granted on June 23, 1969, and the decree was signed on August 25, 1969, but the court reserved jurisdiction in the decree to consider the 'fairness and possible modification' of the alimony provisions in the agreement. On July 29, 1970, husband's attorney informed wife's attorney that he was holding the $5000 payment in his trust account with the husband's approval until such time as the wife would desist in her efforts to rescind the separation agreement. On October 30, 1970, the trial judge ordered that the $5000 be paid over to the wife.
On February 2, 1971, the wife filed motion requesting that the court order husband to pay interest on the $5000 withheld by plaintiff's attorney. By separate motion of the same date she alleged that there had been a change in circumstances since the agreement was signed and requested a substantial increase in alimony.
On March 29, 1971, the court heard evidence on the motions and found that the letter by plaintiff's attorney of July 29, 1970, did not constitute sufficient tender of the $5000 so as to stop the running of interest and ordered payment of $422 in back interest on the $5000. It further found that there had been a change in circumstances of the parties since the separation agreement had been signed and ordered an increase in the monthly alimony from $200 per month to $550 per month.
Plaintiff contends that the court erred in ordering payment of interest and in increasing the alimony payments. We disagree with these contentions and affirm.
According to the agreement which had been previously found to be valid, the second $5000 payment was due and payable when the court announced the awarding of the decree of divorce. Therefore, plaintiff owed interest on the $5000 at the statutory rate from the date of the divorce until paid into the registry of the court.
The power of the court to modify the amount set by agreement is set out in Lay v. Lay, 162 Colo. 43, 425 P.2d 704.
'The parties may, in the agreement, reserve to the court the power to modify the 'alimony' provision, and the court, as a condition to approval of the agreement, may reserve such power to itself.'
The agreement in the present case made the payments subject to further order of the court. Upon the filing of defendant's motion, the court exercised the power given to it under the agreement to modify the amount of alimony based upon the evidence of change in circumstances regarding the wife's need and the husband's ability to pay.
In establishing alimony in the agreement, neither party had knowledge of the financial circumstances of the other party at the time they entered into the separation agreement. At the time it was executed, the wife was making $265 per month and the husband in excess of $20,000 per year. However, at the time of hearing on modification she was not employed and testified she was unable to find employment.
Plaintiff contends that prior to the modification defendant's salary and alimony amounted to $465 per month, while now she is receiving $550 per month in alimony which in effect increases her standard of living. Plaintiff also contends that defendant is employable, but has not made a reasonable effort to become employed and that under these circumstances plaintiff should not be required to furnish her entire support, especially on an increased standard of living.
The court found that a reasonable sum of alimony to be paid by plaintiff under all the circumstances as they existed at the time of the hearing was $550 per month.
The trial judge is charged with the responsibility of judging the credibility of the witnesses and the weight to be given to their testimony. His findings will not be disturbed on appeal unless he has clearly abused his discretion. Elmer v. Elmer, 163 Colo. 430, 431 P.2d 470. We find no abuse of discretion here.
Judgment affirmed.
ENOCH and SMITH, JJ., concur.