Opinion
Rehearing Denied Jan. 28, 1975.
Page 934
Epstein, Lozow & Preblud, P.C., Frederick Epstein, Jon Lozow, Gary Lozow, Denver, for plaintiff-appellee.
Litvak, Schwartz & Karsh, Lawrence Litvak, Denver, Ed Conly, Englewood, for defendant-appellant.
ENOCH, Judge.
Defendant, Joan Melnick, appeals from that part of the trial court's judgment pertaining to a property settlement and denial of alimony. Defendant contends that the trial court failed to make an equitable division of property, erred by reason of its failure to grant her alimony and improperly based its order on evidence presented in the form of written appraisals and written proposals of the parties. We affirm.
Larry and Joan Melnick were married on April 4, 1954, and have two children. During the marriage defendant was not employed. Plaintiff was employed for virtually the entire period of the marriage in a business owned by his wife's family, and in 1971, while serving as chief executive officer, he negotiated and closed the sale of that business. After the sale he continued with the business in a similar executive position but with substantial reduction in salary and benefits. During the marriage, defendant's father made gifts of stock in the family corporation to the couple. When the business was sold this stock was exchanged, and defendant and plaintiff each received a sizeable promissory note and a cash payment. Plaintiff also held fractional interests in a number of business and real estate ventures.
In September 1971, plaintiff filed a divorce action and a decree of divorce was entered in January of 1972. The issues of property division and alimony remained outstanding and the parties stipulated to a procedure whereby the property involved would be valued by a court-appointed appraiser, opportunity would be given for presentation of rebuttal evidence, and written proposals to resolve the case would be submitted to the court by the parties.
Subsequently the trial court entered permanent orders which provided that as part of the property settlement each party would retain the consideration each had received in exchange for stock in the family corporation, that plaintiff would retain all of his various business interests as well as all of his liabilities, that defendant would receive $50,000 in cash from plaintiff, over a period of seven years, and that each party would be liable for his or her own attorneys' fees, to be paid from the proceeds of the sale of the family residence. The court also expressly denied alimony on the basis that defendant's financial status was sufficient to provide her with the necessities of life.
Since this divorce action was brought prior to the effective date of the adoption in Colorado of the Uniform Dissolution of Marriage Act, it is governed by the laws then in effect. 1971 Perm.Supp.C.R.S.1963, 46--1--33. No consideration has been given to what the result would be under the Uniform Act.
The granting of alimony and the division of property in divorce proceedings are matters within the discretion of the trial judge whose decision, if supported by competent evidence, will not be disturbed on review. Hyde v. Hyde, 169 Colo. 403, 457 P.2d 393. The law does not compel an award of alimony and such an award need only be made where it would be equitable to do so. Gleason v. Gleason, 162 Colo. 212, 425 P.2d 688.
The record in this case includes competent evidence from which the trial court could conclude that defendant had sufficient income, derived principally from the sale of her stock, to provide for her necessary living expenses. There was also evidence to support a finding that plaintiff's ability to pay alimony had been substantially reduced by reason of his lower salary and several business liabilities. While the evidence differed as to the value to be placed on the various business interests of the plaintiff, it was not an abuse of discretion for the trial court to determine that plaintiff need not liquidate his fractional business interests as part of the property settlement.
The allowance of attorneys' fees is also within the discretion of the trial court, and a decision regarding attorneys' fees is reviewable on appeal only for abuse of that discretion. Stovall v. Crosby, 171 Colo. 70, 464 P.2d 868. We find no abuse of discretion in the court's order that each party pay its own costs from the proceeds of the sale of the family residence.
Defendant further contends that the procedures employed in the trial court to resolve the contested issues were improper. In answer to this question it suffices to point out that counsel for both parties stipulated to the procedures in advance and that ample opportunity existed for the presentation of rebuttal evidence.
Judgment affirmed.
SILVERSTEIN, C.J., and SMITH, J., concur.