Opinion
Nov. 19, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 976
Richard A. Anderson, Lakewood, for plaintiff-appellant.
Brenman, Sobol & Baum, Richard M. Kranzler, Denver, for defendant-appellee.
PIERCE, Judge.
Plaintiff (wife) was granted a decree of divorce on August 23, 1971. A hearing on permanent orders was held December 20, 1971, and an order entered February 23, 1972, nunc pro tunc to December 20, provided, among other things: That the family home, held by the husband and wife in joint tenancy, be sold and the proceeds from the sale be divided equally between the parties after payment of marital debts; that the wife should participate in the husband's retirement funds just as she would have if they had remained married, and the amount awarded as alimony be offset against her interest in the retirement funds; that the husband pay the wife the sum of $250 per month as alimony. The wife was also given leave 'to review this matter after the house has been sold, as to the question of alimony only.' On July 6, 1973, the wife filed a 'Motion for New Trial or Rehearing.' The wife appeals from the denial of said motion. We affirm.
The wife concedes that if the December 20, 1971, order was a final judgment, C.R.C.P. 59(b) and (f) require dismissal of this appeal. She contends, however, that the December 20 'Order' was not a final judgment within the meaning of Rule 59. An examination of the record makes it clear that the order concluded the division of the parties' property, and thus was a final judgment within the terms of Rule 59. The denomination of the instrument as an 'Order' rather than as a 'Judgment' is not determinative. Johnson v. Johnson, 132 Colo. 236, 287 P.2d 49. Furthermore, the finality of the determination of the parties' property rights is not destroyed by the availability of alimony modification, See McDonald v. McDonald, 150 Colo. 492, 374 P.2d 690, nor by the fact that the sale of the home and division of the proceeds was to occur in the future, See Ferguson v. Olmsted, 168 Colo. 374, 451 P.2d 746. The July 6, 1973, motion for a new trial was submitted one and one-half years after the entry of the judgment in this case, and therefore the appeal must be dismissed.
Appeal dismissed.
BERMAN and STERNBERG, JJ., concur.