Opinion
June 30, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Hindry, Erickson & Meyer, Jay L. Gueck, Denver, for plaintiff in error.
M. E. H. Smith, Waldo & Waldo, Ralph E. Waldo, Jr., Greeley, for defendant in error.
DUFFORD, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under the authority vested in the Supreme Court.
This is an appeal from a divorce action in which the wife was plaintiff. During the course of the trial court action, extensive hearings were held by the trial court, one of which pertained solely to questions concerning the right to custody of the couple's minor children. Ultimately the trial court awarded the wife custody of the children. The wife was also awarded alimony in a total amount of $2,500.00 and temporary and permanent attorneys' fees aggregating $750.00.
The husband has appealed, contending that evidence presented at trial concerning the moral turpitude of the wife was of such nature and weight that it was error for the trial court to grant her the custody of the minor children, and that such evidence also barred her right to any alimony award. It is the final contention of the husband that the judgment of the trial court insofar as it awarded attorneys' fees should be reversed for the reason that there was no evidence which established that the granting of such award was necessary in order to place the wife in a position of parity with the husband insofar as her position in the divorce action was concerned.
There is little question that there was presented to the trial court significant evidence from which moral indiscretions on the part of the wife could either be inferred or taken as proved. They related to acts occurring prior to and subsequent to the commencement of the divorce action. No purpose would be served by detailing their nature within this opinion. Conversely, it is also clear from the record that the trial court investigated and weighed other evidence and other factors bearing upon the ultimate welfare of the minor children. We find it impossible to rule as a matter of law that the trial court abused its discretion in granting custody of the children to the wife. Its judgment in this regard will be affirmed. Britt v. Britt, 137 Colo. 524, 328 P.2d 947.
The award of alimony to the wife was also a matter which rested largely within the discretion of the trial court and will not be disturbed by us in this instance. It is true that evidence of moral delinquency is a factor which can impair the right to receive alimony. Reap v. Reap, 142 Colo. 354, 350 P.2d 1063. However, questions as to the needs of the wife and the ability of the husband to pay, as well as other factors, must also be considered by the trial court in reaching its conclusions as to whether an alimony award is or is not proper. Vigil v. Vigil, 49 Colo. 156, 111 P. 833. Finally, we deny the husband's contention that no award should have been made to the wife for the payment of her attorneys' fees. The evidence in this case did not clearly establish that the parties were on a plane of equality, and for such reason the rule announced in Peercy v. Peercy, 154 Colo. 575, 392 P.2d 609, has no application here.
The judgment is affirmed.
COYTE and PIERCE, JJ., concur.