Opinion
April 21, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 640
Mason, Reulers&sPeek, William M. Peek, Denver, for plaintiff in error.
McVicker, Woodfords&sMyers, Frederick J. Myers, Wheatridge, for defendant in error.
PIERCE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado, and was subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
Mary Pugh, defendant in error (plaintiff), filed for divorce from Charles Pugh, plaintiff in error (defendant). A noncontested divorce was granted to Mary on her complaint. Subsequently, a full, contested hearing was held on permanent orders for alimony, support and property division; and it is from these orders that Charles appeals, as well as from a subsequent conviction for contempt stemming from an alleged violation of these orders while appeal was pending.
We note at the outset that the trial court made no findings for us to review (except that divorce was granted prior to the subject hearing). We must, therefore, look to evidence in the record for justification of the trial court's order; and we do so in light of conditions as they existed at the time of the award. Watson v. Watson, 135 Colo. 296, 310 P.2d 554.
Four children were born to the parties during the term of the marriage. The record shows that the parties had purchased a house during the marriage with a value at the time of the hearing of approximately $40,000--outstanding against which were a first and second mortgage of $24,660 and $2,380 respectively. Additionally, Charles had borrowed money totalling $3,700 from two other sources for improvements to the house. Further, the record revealed that over and above what Charles had earned and borrowed, the parties had, during the marriage, spent some $30,000 given them by Mary's father.
At the time of the hearing on permanent orders, Charles had a net take-home pay of $721 per month and showed, by affidavit, average monthly expenses of $559 per month; and that Mary had a net take-home pay of $326 per month and showed, by affidavit and testimony, average monthly expenses of $1,148.12 ($303.43 of which were expenses incurred Pendent lite).
As a result of the hearing on permanent orders, the court ordered:
a. That certain personal property be awarded to Charles.
b. That the family house be sold and that the net proceeds be divided equally between Mary and Charles after the first and second mortgages had been paid off in full; but that Charles pay for his own sources the additional $3,700 borrowed for improvements, with no set-off against the equity in the house prior to division thereof, while Mary pay all mortgage payments due subsequent to entry of the decree of divorce and prior to the actual sale.
c. That Charles pay all of Mary's bills incurred Pendent lite during four months ($5,144.21, which includes $303.43 per month as mentioned Supra); and that Mary pay all of her own bills incurred after the date of the decree.
d. That each party retain title to the automobiles respectively registered to them.
e. That Charles pay $400 per month in child support.
f. That Mary receive no alimony.
g. That Charles pay Mary's attorney's fees amounting to $325.
Charles submitted Interrogatories concerning the court's orders. He also filed motions to amend judgment and for a new trial. In his Interrogatories, he requested clarification of certain portions of the orders. As a result of these, he was advised that he need not pay $85 per month of the $303.43 per month mentioned Supra, which was incurred by Mary's 'purchase' (whether a purchase or a gift is unclear) of a new car. This left a balance for which he was obligated of $218.43 per month. Charles's motion to amend judgment was otherwise denied. He then moved for a new trial, which was denied, and appeal taken.
However, while appeal on the permanent orders was pending, Mary brought a contempt proceeding which resulted in a finding of contempt against Charles for an arrearage of $795 in his child support payments. A motion for a new trial on the contempt was made, and was denied; and appeal taken on that motion, also.
Charles brings four assignments of error before this Court, which we will take in the following order:
1. The court erred in finding Charles in contempt for failing to make the required child support payments;
2. The court abused its discretion in awarding $400 per month child support;
3. The court erred in ordering Charles to pay certain obligations incurred by Mary Pendent lite;
4. The court erred in assessing Mary's attorney's fees against Charles.
DID THE TRIAL COURT ERR IN FINDING CHARLES IN CONTEMPT FOR FAILING TO MAKE THE REQUIRED CHILD SUPPORT PAYMENTS?
The record shows that Charles moved the court for an order 'determining accounting as to support payments,' alleging that Mary had failed to make mortgage payments on the parties' house as ordered, which resulted in foreclosure by the two mortgagees; and that the second mortgagee, a bank, in order to further protect its interests, had attached certain money in joint accounts in his and his second wife's names, maintained at its offices. Charles contended that the support payments he had actually made, plus the moneys lost by the second mortgagee's action, amounted to the total child support he should have paid. The court, however, refused to hear his motion on grounds that since its final orders were on appeal to the Supreme Court, it had lost jurisdiction over the entire matter. But it did conduct a hearing on Charles's alleged contempt, raised in a motion simultaneously filed by Mary.
Presuming that the contempt issue was properly before the court, we find the following statement from Engleman v. Engleman, 145 Colo. 299, 301, 358 P.2d 864, 865, applicable to this case:
'The power to punish for contempt should be used with caution after due deliberation, and only when necessary to prevent actual, direct obstruction of, or interference with, the administration of justice. The matter of dealing with contempt is within the sound discretion of the trial court and its determination is final unless an abuse of such discretion is clearly shown.'
We rule that there was an abuse of discretion on the part of the trial judge in this case. Mary's evidence showed Only that Charles's net take-home pay at the time of the contempt hearing, and for the three months immediately prior to that hearing, but subsequent to the issuance of the divorce decree, was the same as at the time of the hearing on final orders ($721 per month). She introduced no evidence showing that he was otherwise able to pay as ordered. Charles, however, until his presentation was terminated by the trial judge, introduced uncontroverted evidence showing that he was unable to meet the $400 per month child support payment. Had the hearing continued through completion, a different result might have obtained.
There is no evidence in the record indicating that Charles refused to pay in spite of ability to do so--the trial court's findings notwithstanding. Nor is there any evidence that he could pay the required amount. These elements must be shown. Morgan v. Reser, 162 Colo. 165, 425 P.2d 42. As the record stands, there is only irrefuted evidence of his inability to pay the required amount. The trial judge's finding of contempt is premature at best, and not supported by the evidence.
It is therefore reversed.
DID THE TRIAL COURT ABUSE ITS DISCRETION IN AWARDING $400 PER MONTH CHILD SUPPORT?
The rule in Colorado is clear that '* * * orders of a trial court which pertain to custody, alimony and support are * * * matters which lie within the sound discretion of that court, and will not be disturbed on review unless an abuse of discretion is shown.' Engleman, Supra, 145 Colo. at 302, 358 P.2d at 866; see also Henderson v. Henderson, 164 Colo. 1, 431 P.2d 1022. However, the amount awarded may not be arbitrary, capricious or confiscatory, Santilli v. Santilli, Colo., 453 P.2d 606, and the trial court must 'weight the father's ability to pay against the reasonable needs of the children.' Franco v. Franco, 161 Colo. 507, 509, 423 P.2d 327, 328 (Emphasis added); see also, Kane v. Kane, 154 Colo. 440, 391 P.2d 361.
Whether or not this award constitutes an abuse of discretion depends upon the presence or absence of evidence in the record supporting the $400 per month figure and of evidence of Charles's ability to pay this figure. The record shows (1) a reference to the need of $40 per month for 'school supplies;' (2) a monthly expenditure of $90 for babysitters (required by Mary's employment); (3) a reference to monthly food expenses for the four children And Mary, amounting to $191; and (4) other vague references to possible medical and clothing expenses for the children And Mary. Although the first two items are probably attributable to the children, the third and fourth are attributable in part to the four children and in part to Mary, with no breakdown in the respective amounts.
Because the trial court made no findings with regard to the needs of the children, we are unable to determine exactly how it arrived at the $400 per month figure. Nor are we informed why the court saw fit to raise this figure from the $130 per month it ordered under its temporary orders. Even if this figure is representative of the needs of the children, it is clearly beyond Charles's ability to pay in light of all obligations imposed upon him by the trial court's permanent orders, which must be viewed in their totality. Baugher v. Baugher, 158 Colo. 547, 408 P.2d 443.
The record shows that Charles had a net take-home pay of $721 per month. By his affidavit, his personal expenses were shown to be $559 per month and in the absence of any finding by the court to the contrary, we assume that these expenses were necessary and proper, and were so found. Deducting these expenses from his net monthly take-home pay results in a balance of $162 per month with which to pay $400 per month in child support. Additionally, he was obligated to make monthly payments of $218.43 on Mary's bills pendent lite; obligated to pay two household improvement loans totalling $3,700; and further obligated to pay Mary's attorney's fees of $325.
Under these circumstances, the trial court's order of $400 per month in child support is arbitrary because it did not consider Charles's manifest inability to pay all of the obligations imposed upon him by the entire permanent order. We reverse the court's order on this matter and remand the issue for further consideration in light of the principles above, and in consonance with the instructions contained in the final two paragraphs of this opinion.
DID THE TRIAL COURT ERR IN ORDERING CHARLES TO PAY CERTAIN OBLIGATIONS INCURRED BY MARY PENDENT LITE?
The record shows that during this period Charles agreed to pay, by stipulation, and apparently did pay the sum of $461 per month to cover the two mortgage payments on the house and to support Mary and including the $130 per month for the four children. The record further shows, however, that during this four-month period Mary incurred debts, which she felt obligated to repay, in the amount of $2,062.72. Charles was subsequently ordered to assume most of these obligations under the court's premanent orders. Part of this sum was for a trip to Florida for Mary and the children, which was stipulated to by the parties, although there was no stipulation as to who would pay for it. The remainder of this sum was for miscellaneous expenditures not stipulated to in any way.
The trial court held that As a matter of law the husband is required to pay bills incurred by the wife Pendent lite. No authority for such a rule has been cited to us. We hold that this is a matter to be determined by the trial court in the sound exercise of its discretion, taking into account the situations and abilities of the parties.
We therefore reversed the trial court's decision in this regard and remand it for further consideration consonant with instructions contained in the final two paragraphs of this opinion.
DID THE TRIAL COURT ERR IN ASSESSING MARY'S ATTORNEY'S FEES AGAINST CHARLES?
Were the permanent orders of the trial court to remain in effect, it would appear that Mary's net spendable income would exceed Charles's, and that Peercy v. Peercy, 154 Colo. 575, 581, 392 P.2d 609 and Andrews v. Andrews, 161 Colo. 529, 423 P.2d 573, might apply, requiring Mary to pay her own attorney's fees. Upon a retrial of this matter, however, it may still be proper to assess Charles with Mary's attorney's fees in view of the total obligations placed upon each party by the trial court. This matter will remain within the sound discretion of the trial judge.
Matters of property division, alimony and child support are, as counsel for Mary make crystal clear in their brief, 'not unrelated, but on the contrary are inextricably interwoven, one with the other.' Baugher v. Baugher, Supra, 158 Colo. at 550, 408 P.2d at 445. They should each be considered in light of the effect they will have individually, and in concert with the others, upon the totality of the burden imposed upon both parties, so that burden will not be unduly harsh or unconscionable, as is prohibited by Bell v. Bell, 150 Colo. 174, 371 P.2d 773.
For the reasons above, the finding of the trial court that defendant, Charles Pugh, is in contempt of court is reversed; and the contested portions of its permanent orders are also reversed, and those issues remanded for further proceedings in conformity herewith. In connection with these proceedings, the trial court is advised to make findings and rulings in compliance with R.C.P.Colo. 52.
SILVERSTEIN, C.J., and ENOCH, J., concur.