Opinion
July 3, 1973
Editorial Note:
This case has been marked 'not for publication' by the court.
Lutz & Gilbert, Harold D. Lutz, Arvada, for plaintiff-appellee.
Fred R. Rehmer, Aurora, for defendant-appellant.
SILVERSTEIN, Chief Judge.
Each of the parties in this action was granted a divorce on the grounds of extreme and repeated acts of cruelty. Thereafter final orders were entered which divided the property, awarded custody of their minor child to the wife, and awarded child support and alimony to the wife. The husband appeals only from the order awarding alimony to the wife. He asserts that the award was arbitrary, capricious and an abuse of discretion, and that the trial court erred in limiting evidence relative to the wife's extramarital activities. We find no merit in either of these contentions and affirm the trial court.
The parties were married for twenty-five years, the latter years being marked by considerable strife including many separations, five years of marriage counselling, and commencement of a prior divorce proceeding followed by reconciliation. Evidence was introduced which disclosed extramarital activities on the part of the wife. The trial court noted all of the above in its findings and awarded two hundred dollars a month for ten years as permanent alimony. The evidence discloses the need of the wife for such an award, and the ability of the husband to pay that amount.
The husband contends that, because of her extramarital activities, the wife is not entitled to alimony. He relies on the language in Reap v. Reap, 142 Colo. 354, 350 P.2d 1063, which states that '. . . evidence of moral delinquency or complete disregard of the marital vows and duties should be viewed as a bar to receiving alimony.' However, that opinion also stated that fault was not the sole standard in awarding alimony. Although it is true that evidence of moral delinquency is a factor which can impair the right to receive alimony, questions as to the needs of the wife and the ability of the husband to pay, as well as other factors, must also be considered by the trial court in reaching its conclusions as to whether an alimony award is or is not proper. Vigil v. Vigil, 49 Colo. 156, 111 P. 833. Under the circumstances disclosed by the evidence in this case the award of alimony was not arbitrary nor an abuse of discretion. Therefore, the award will not be disturbed.
The record further discloses that the trial court gave the husband very wide latitude in presenting his evidence relative to his wife's conduct during the marriage. We find no error in its finally limiting further evidence thereto.
Judgment affirmed.
PIERCE and SMITH, JJ., concur.