Opinion
July 3, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 939
Butler, LePore, Landrum & Pierce, Robert G. Pierce, Denver, for plaintiff-appellant.
Law, Nagel & Clark, John M. Law, Denver, for defendant-appellee.
ENOCH, Judge.
This is an appeal from the trial court's judgment granting the motion of Katherine Williams Grant, defendant-appellee, for an increase of alimony, attorney's fees, and expenses. We affirm.
The basic facts are not in dispute. The parties were married in New York in 1945. David Grant, plaintiff-appellant, left his wife in 1952 or 1953, and a decree of separate maintenance was entered by a New Jersey court in 1955. In 1964, after having established residence in Colorado, David filed suit for divorce. Katherine entered her appearance and filed a counterclaim for a divorce also. A decree of divorce was granted to Katherine on her counterclaim in 1965 by the District Court in Arapahoe County, Colorado, and a property settlement including alimony was agreed to and made a part of that decree. This agreement specifically reserved to the court continuing jurisdiction as to alimony. In 1971 Katherine filed a motion to increase the alimony payments. The trial court increased the alimony payments from $308 to $750 and awarded attorney's fees of $1,750 plus costs and expenses of $528.
David contends that the court abused its discretion in the amount of the increase in alimony. The alleged abuse is that the $750 exceeded Katherine's need as shown by her affidavit of monthly expenses and that one item of her expenses was the monthly payment of a loan which she obtained shortly after the divorce. We find no merit in these allegations.
The alimony awarded exceeded her needs as shown by the affidavit by less than $20, and we find no abuse of discretion in such an order. The trial court is not bound by the affidavits of either party. Further, as the court properly considered the husband's own liabilities incurred after the divorce to determine his current ability to pay, it was also proper for the court to consider the wife's subsequently acquired monthly loan payment obligation in determining her current needs. The evidence showed that, in addition to experiencing increased living expenses, Katherine was also afflicted with cancer and suffered from other health complications. After the 1965 decree, David inherited approximately half a million dollars. The evidence of changes in circumstances resulting in the wife's increased needs and the husband's increased ability to pay is sufficient to render the original decree no longer equitable. Harris v. Harris, 113 Colo. 41, 154 P.2d 617. We find no abuse of discretion by the court in its determination of the amount of the increase. The amount is not excessive in light of the needs of the wife, nor is it burdensome or oppressive to the husband. Elmer v. Elmer, 163 Colo. 430, 431 P.2d 470; Schrader v. Schrader, 156 Colo. 521, 400 P.2d 675.
David also contends that the award of attorney's fees to Katherine in the amount of $1,750 is excessive. Katherine also filed a motion to set aside the original property settlement, and both motions were heard at the same time. David argues that most of the time spent by counsel was related to this motion which the court denied. Katherine requested attorney's fees totaling $2,260 which were supported by her counsel's affidavit. The awarding of attorney's fees and the amount are within the sound discretion of the trial court. Stovall v. Crosby, 171 Colo. 70, 464 P.2d 868. We find no abuse of that discretion.
Nor do we find any error in the court's award of $528 for Katherine's costs and expenses. She was required to make two trips to Colorado from New Jersey where she has maintained her residence since David left in the early 1950's. It was David's choice that Colorado be the forum for the divorce action. The evidence supports the wife's need, the reasonableness of the request, and the husband's ability to pay. See McMillion v. McMillion, Colo.App., 497 P.2d 331.
Judgment affirmed.
PIERCE and SMITH, JJ., concur.