Opinion
Oct. 27, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 298
Robert R. Kayne, Boulder, for plaintiff in error.
Williams, Taussig & Trine, David W. Griffith, Boulder, for defendant in error.
DWYER, 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.
Gertrude Elizabeth Gibbons brought this action for divorce against her husband, William Thomas Gibbons. The husband filed a counterclaim and later obtained a noncontested decree of divorce. Thereafter, the court entered orders relative to division of property and alimony. The husband contends that such orders constitute an abuse of discretion and seeks reversal.
Matters of alimony and property settlements between husband and wife are within the sound discretion of the trial judge, whose determination of these matters will not be disturbed if they are supported by the evidence. Moats v. Moats, Colo., 450 P.2d 64.
At the time of the divorce, the parties had been married approximately fourteen years. Two children were born to this marriage. The custody of the children was awarded to the husband. The wife consented to the custody order because she was physically unable to care for the children.
At the time of the marriage, the husband had no assets. The wife had $2,000, which was used in the purchase of the family residence. At the time of the divorce, the husband owned approximately 25% Of the outstanding capital stock of a closed corporation. The court found the value of this stock to be $21,800. The husband's gross income as sales manager of the corporation was $1,530 per month. His net income was approximately $1,000 per month. From his net income the husband was paying $220 per month to the corporation as a further capital investment.
The court ordered the husband to pay the wife $250 per month as alimony. The wife was physically disabled and unable to work. She was receiving $110 per month as veteran's benefits of this disability. She testified that she needed $400 per month for her support. The alimony order is neither in excess of the wife's needs nor beyond the husband's ability to pay.
While the divorce case was pending, the family residence was sold and the proceeds applied to various debts. The principal remaining asset was the corporate stock standing in the husband's name. The trial court was confronted with the problem of making an equitable division of this stock. As stated in Kalcevic v. Kalcevic, 156 Colo. 151, 397 P.2d 483:
'Justice requires that the joint accumulations of a husband and wife, or property which was acquired during marriage or added to through the joint efforts of both spouses, should be considered for equitable division on termination of the marriage.'
The husband valued this stock at $17,880. Other testimony at the trial indicated that the stock had a value of approximately $28,000. The court's finding that the stock had a value of $21,800 is supported by evidence. The court permitted the husband to retain all of the stock and required him to pay the wife $9,000 at the rate of $100 per month. The method of division employed by the trial judge was suggested in Kalcevic v. Kalcevic, Supra, and approved in Phillips v. Phillips, Colo., 464 P.2d 876.
As part of the property division, the court ordered the husband to pay the wife $450 within one year for additional attorney's fees. The wife's attorney had received the sum of $500 out of the joint funds of the parties arising from the sale of the family residence. The wife testified that she had paid her attorney the additional sum of $431 from money which she had borrowed and still owed. The indebtedness of the wife for attorney's fees was an item properly considered by the trial court and the order requiring the defendant to pay the additional sum of $450 in connection with the property settlement was within the discretionary power of the court.
The court did not abuse its discretion in entering the alimony and property settlement orders.
Judgment affirmed.
ENOCH and PIERCE, JJ., concur.