Opinion
April 8, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Clawson & Southam, P.C., Lynn W. Southam, Colorado Springs, for petitioner-appellant.
Asher, Kraemer & Kendall, Allan F. Asher, James G. Felt, Colorado Springs, for respondent-appellee.
RULAND, Judge.
In this action for dissolution of marriage, petitioner, Joan Jackson (Wife), seeks reversal of provisions of the permanent orders relative to division of property and maintenance. We affirm.
After 23 years, the marriage of the parties was dissolved on July 3, 1974. Four children were born as issue of the marriage. Two of the children were emancipated, and custody of the two minor children was awarded to Wife. She was not employed at the time of the hearing on permanent orders, but was actively seeking and expected to obtain employment. Wife claimed monthly living expenses of approximately $600 for herself and the two children.
Prior to entry of permanent orders, respondent, Charles Jackson (Husband), retired from the United States Air Force and was employed by the Veterans Administration. His net income from this position was approximately $335 per month. In addition, Husband was receiving retirement pay in the gross amount of $500 per month, with a net of $260 after deductions were taken for taxes and installment payments on a government credit union loan. Total net income from both sources was approximately $595, and Husband claimed living expenses of approximately $500 per month.
The trial court ordered a division of the marital assets, directed Husband to pay child support in the amount of $200 per month, maintenance of $100 per month for three months, and Wife's attorney fees. The court ordered maintenance reduced to $25 per month at the end of three months, unless Wife was unsuccessful in obtaining employment.
During the hearing on permanent orders, the only testimony presented concerning Husband's retirement pay was his testimony as to the gross and net amounts received therefrom. Counsel for Wife only inquired whether Husband felt it was 'fair' for Wife to receive one-half of the retirement pay, and Husband responded that he did not know.
In her motion for new trial, Wife complained of the court's failure to treat the retirement pay as a marital asset and offered to prove for the first time the life expectancy of Husband and the gross value of the retirement pay based thereon. The trial court ruled that this evidence should have been presented during the hearing and therefore declined to grant the motion for new trial. Wife retained new counsel and perfected this appeal.
Wife's sole contention here is that the trial court abused its discretion in failing to grant the motion for new trial in order to consider Husband's retirement pay as a marital asset and in not awarding Wife an equitable portion thereof presumably in the form of maintenance. We disagree. After a party rests his case without proving the facts necessary to support a claim, the trial court does not abuse its discretion in refusing to reopen the case and take additional evidence relative thereto. See McKinley v. Denver & Rio Grande Western R.R., 119 Colo. 203, 201 P.2d 905.
Judgment affirmed.
ENOCH and PIERCE, JJ., concur.