Opinion
Sept. 1, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 231
Wm. Rann Newcomb, Denver, for plaintiff in error.
Van Cise, Freeman, Tooley & Eason, Edwin P. Van Cise, Denver, for defendant in error.
ENOCH, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This is an action to review the judgment of the trial court which denied an application of the plaintiff in error for a modification of an alimony award. Succintly stated, the allegation of error in this case is that the trial court abused its discretion in refusing to terminate or modify the alimony award in light of the fact that subsequent to entry of the original award, the wife secured employment and the husband incurred a substantial number of additional obligations.
The original order issued by the trial court incorporated an agreement by the parties which contained Inter alia provisions whereby the husband was to pay $375 per month in alimony and approximately $375 for child support. At the time the order and decree were issued, the husband's income was about $2,000 per month.
The evidence presented to the trial court during the hearing on modification showed that the wife earned about $500 per month and that the reason she had sought employment was to supplement her relatively meager alimony award. It is noted that at the time of the hearing, the husband's income had recently decreased, but was nevertheless substantially the same as when the original order was issued, and that, at that time, the children had become self-supporting. Thus, although the husband voluntarily undertook to help support his son while in pursuit of a college degree, his obligation to pay child support under the original order had been eliminated. Also, the husband presented evidence as to obligations that he had incurred subsequent to the issuance of the original order. These obligations were attributed to his remarriage and necessity of equipping a new office for his sole dental practice in that he had recently disassociated himself from a partnership.
We hold that the trial court did not abuse its discretion in refusing to decrease or terminate the award of alimony in this case. The determination of whether circumstances of the parties have so changed as to warrant a modification of the order for alimony, like other questions of fact, is within the sound discretion of the trial court. In the absence of an abuse of that discretion, it will not be disturbed on review. Elmer v. Elmer, 163 Colo. 430, 431 P.2d 470.
While it is true that the husband has incurred business debts and has increased his living expenses, he did so in the face of his pre-existing obligations to his first family. A man may not shun marital obligations assumed in one relationship by contracting others while some of the duties imposed by law in the first still persist. Rodgers v. Rodgers, 102 Colo. 94, 76 P.2d 1104.
The judgment of the trial court is affirmed.
COYTE and PIERCE, JJ., concur.