Opinion
No. 71-224
Decided March 7, 1972.
Trial court awarded $5000 of statutory survivor's allowance to decedent's widow and $2500 of it to decedent's twenty-year-old daughter by previous marriage. Widow appealed.
Affirmed
1. EXECUTORS AND ADMINISTRATORS — Survivor's Allowance — Daughter Entitled — Statutory Conditions — Not Affected — Extinguishment — Duty to Support. Although stepmother testified that she understood decedent's duty to support his daughter had been extinguished by lump-sum settlement in prior divorce action, the only conditions precedent to daughter's right to share in statutory survivor's allowance are set forth in the statutory grant of that right; thus, daughter, having met those conditions, was entitled to share in the allowance and stepmother's testimony, even if true, would not affect that entitlement.
2. Survivor's Allowance — Apportionment — Widow — Twenty-Year-Old Daughter — No Abuse of Discretion. Where statute provides that trial court shall make such apportionment of survivor's allowance as may be "just," what is "just" must of necessity rest in sound discretion of trial court, and award of $5000 of the allowance to widow and $2500 of it to decedent's twenty-year-old daughter by prior marriage was not an abuse of discretion.
Appeal from the District Court of Ouray County, Honorable George V. Kempf, Judge.
Icke and Quinn, Terrence J. Quinn, for appellant.
Overholser and Slee, Andrew J. Slee, for appellee.
This is an appeal from an order apportioning the statutory survivor's allowance between Zada Frazier, decedent's widow, and Caroline Frazier, a minor child of decedent and stepchild of Zada. Although Caroline does not live with Zada, she is a resident of Colorado.
William H. Frazier, decedent, left as his heirs, Zada and his four children by a previous marriage. The youngest of these children, Caroline, was 20 years of age at the time of William's death. Both Zada and Caroline applied to the court for the $7,500 survivor's allowance authorized by 1969 Perm. Supp., C.R.S. 1963, 153-12-16(2)(a). After a hearing at which Zada and Caroline testified concerning their needs, the court awarded $5,000 to Zada and $2,500 to Caroline.
Zada contends here, as she did in the trial court, that Caroline is not entitled to any portion of the survivor's allowance because her father, William, had no duty to support Caroline at the time of his death. Zada testified that she understood this duty had been extinguished by a lump-sum child support settlement given Caroline's mother at the time of her divorce from William.
[1] Zada's supposition, even if true, does not affect Caroline's entitlement to share in the statutory survivor's allowance. The only conditions precedent to Caroline's right to share in the allowance are set forth in the statutory grant of that right. 1969 Perm. Supp., C.R.S. 1963, 153-12-16(2)(a), provides, inter alia,
". . . If the decedent shall have left minor children not the children of the surviving spouse or minor children not residing with the surviving spouse, then the court taking into consideration the needs of the surviving spouse and of all the minor children of the decedent, shall make such order apportioning the above allowance between the surviving spouse and the minor children of the decedent, as may be just. . . ."
Caroline meets each requirement to entitle her to an apportionment.
[2] Zada further contends that the amounts awarded in the apportionment are not equitable, or as the statute says, "just," considering her needs and those of Caroline. What is "just" must of necessity rest in the sound discretion of the trier of fact. We find no abuse of discretion by the trial court. There is evidence in the record to support the apportionment made by the court, and it will therefore not be disturbed on review. "If there is sufficient evidence, we are bound by the trial court's determination even though it is possible for reasonable men to arrive at a different conclusion based on the same facts." Whatley v. Wood, 157 Colo. 552, 404 P.2d 537.
The order of apportionment of the survivor's allowance is therefore affirmed.
JUDGE PIERCE concurs and JUDGE COYTE dissents.