Opinion
Feb. 11, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 363
Robert J. Verner, Denver, for plaintiff-appellant.
Geer, Goodwin & Chesler, P.C., Robert E. Goodwin, Denver, for defendant-appellee.
BERMAN, Judge.
This is an appeal involving a matter of property division in a divorce action. We affirm.
The parties were married in 1952 and had four children. In February 1970 the wife filed for divorce. A decree of divorce was entered in May 1970. In its property distribution order of December 18, 1970, the trial court ordered that 200 shares of stock of a private corporation held in the name of the husband and wife be sold and the proceeds distributed equally between them. The stock was not sold, and on November 22, 1971, the husband's motion requiring that the stock be placed in the registry of the court was granted.
On September 25, 1972, another order was entered requiring that the stock be sold as previously ordered. Pursuant to the husband's motion of December 10, 1973, to have the court set a time and place for the opening of the bids submitted pursuant to the order, a hearing was held on January 28, 1974. The wife's objection that the bids were not proper was overruled, and the submitted bids were opened by the court. One bid offered to purchase the stock for $12,000. The other bid, submitted on behalf of the wife, offered to purchase the stock for $12,500, but that offer had expired on October 16, 1972. The court granted the offeror of this bid ten days in which to renew the offer and to tender a certified check to the court. The hearing was continued until February 8, 1974. On that date, the offer of $12,500 not having been renewed, the court accepted a cashier's check for $12,000 for the remaining bid. The wife's motion to impound the husband's portion of the proceeds to be applied to the parties' indebtedness was denied. The wife appeals, claiming that the trial court abused its discretion in accepting the $12,000 bid and in denying her motion for impoundment of funds.
Although the wife's appeal specifically addresses itself to the sale of stock ordered by the court, this transaction arose out of the trial court's decree dividing the property between the parties. Our review of the procedure followed in the sale of the stock is thus limited to a determination of whether there was an abuse of discretion. See Brocato v. Brocato, 172 Colo. 390, 473 P.2d 702.
The wife does not claim on this appeal that the final distribution of the property or the proceeds of the sale of stock was either unfair or inequitable. She objects to the form of the sale contending that the trial court erred in that the bids were not sealed as had been ordered, in that it had not accepted the $12,500 bid, in that the bid accepted was not the highest, and in that she had been allowed insufficient time to convert the $12,500 bid to cash.
We have reviewed the record designated to us and the orders pertinent to the sale of the aforementioned stock and nowhere do we find that sealed bids were requested or ordered by the court. The stock was merely ordered 'forthwith sold and the proceeds distributed equally . . ..' We are bound by the record as made and not the contentions of one of the parties as to what the record should show. Noice v. Jorgensen, 151 Colo. 459, 378 P.2d 834.
With respect to the remainder of the wife's contentions, we find no abuse of discretion in the trial court's actions. By C. R.S.1963, 46--1--5(2), the trial court was authorized, upon entry of a divorce decree, to divide property and to make such orders as circumstances may warrant relative to division of property in such proportions as may be fair and equitable. In its September 25, 1972 order, the trial court retained unto itself, upon application, the right to resolve any differences among the bids, and that is what it subsequently did.
The stock had been ordered sold on December 18, 1970, and remained unsold nearly four years later. As a result, the trial court exercised its prerogative, pursuant to its previous order, to finalize the long overdue property order, and we find no abuse of discretion in the court's action. We are not persuaded by the wife's contention that the bid accepted was untimely and was not the highest acceptable bid.
While it is true that the wife submitted a bid within the 30-day time limit set out in the court's September 1970 order, we do not find from the record that the wife at any time attempted to bring the bid to the attention of the court. The wife cannot now be heard to complain of her own inaction.
Finally, inasmuch as the $12,500 bid had expired prior to the January 1974 hearing and was not renewed within the time designated by the court, we find no abuse of discretion by the trial court in finalizing the property distribution by accepting the remaining bid.
The wife also contends that the trial court abused its discretion in denying her motion to impound funds of the husband. Under C.R.S.1963, 46--1--5(3), the trial court may require security to assure enforcement of its orders. However, on the facts presented here, we cannot hold that the trial court abused its discretion in refusing to impound the husband's funds.
Judgment affirmed.
SILVERSTEIN, C.J., and KELLY, J., concur.