Opinion
Oct. 31, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 974
James H. Howard, Denver, for plaintiff-appellee.
Van Cise, Freeman, Tooley & McClearn, Charles Goldberg, Denver, for defendant-appellant.
ENOCH, Judge.
Defendant-appellant Theron Garel brings this appeal from an order of the Denver District Court, which reinstated alimony payments and the full amount of child support payments.
Plaintiff and defendant were divorced in July, 1966. Incorporated into the decree was a property settlement agreement which provided, in pertinent part, that the defendant pay child support in the amount of $133 per month per child and alimony of $200 per month.
On March 12, 1968, the District Court, on defendant's motion, temporarily suspended the alimony payments and reduced support payments to $125 per month per child. There was no appeal from that order. This reduction was based on defendant's testimony that at that particular time his income had been drastically reduced. He testified that he had spent a considerable amount of time as a consulting engineer on a particular sanitation project and, although his compensation would be 'considerable,' his compensation was being delayed until certain litigation was concluded. The trial court anticipated another hearing within a few months; however, no time for such a hearing was set forth in the order and there was no additional hearing until 1971.
In February, 1971, plaintiff moved to reinstate the alimony and support provisions of the original decree. At the hearing in July, 1971, detailed financial affidavits were presented by both parties. After hearing all the evidence, the court reinstated the $200 per month alimony order and reinstated the full amount of the original support order of $133 per month for each of the two unemancipated minor children in accordance with the terms of the original agreement.
Defendant claims that the court improperly based the increase upon his 'potential' income rather than upon his actual income as of the time of the hearing. Though orders of support and alimony must be based upon the ability to pay and the needs of the parties at the time of the hearing rather than upon conditions either in the past or in the future, Watson v. Watson, 135 Colo. 296, 310 P.2d 554, all relevant evidence must be considered. As the trier of fact, the trial court must determine the issue of credibility of the witnesses and the weight to be given to the evidence. Harvey v. Irvin, 156 Colo. 391, 401 P.2d 266. In matters of child support and alimony the trial court must have broad discretion because of the complexity of the problems which generally arise in domestic relations matters. The law is clear in Colorado that if the trial judge's orders and judgment are supported by competent evidence, they will not be disturbed on review. Graves v. Graves, 171 Colo. 20, 464 P.2d 291.
The evidence disclosed that defendant had received, subsequent to the 1968 hearing, his delayed compensation of approximately $12,000, and that none of it was made available to his children or the plaintiff. Defendant's net income in 1969 was $10,944 and in 1970 $14,444; however, by the time of the hearing in July 1971, defendant's income had become a negative figure. There was conflict in the evidence concerning defendant's expenses charged against his income. During this time, plaintiff was working at two jobs to maintain sufficient income for her support and that of the children.
In light of all the evidence which was before the court, we find no abuse of discretion. It is further noted that the court did not increase defendant's original obligation but only reinstated the alimony and support payments to the amounts which defendant had voluntarily agreed to pay at the time of the divorce in 1966. The 1968 order was designed to be, at most, a temporary suspension of part of that obligation.
Judgment affirmed.
SILVERSTEIN, C.J., and COYTE, J., concur.