Opinion
Rehearing Denied Jan. 11, 1972. Not Selected for Official Publication.
Brenman, Ciancio, Rossman, Baums&sSobol, Melvin Rossman, Denver, for plaintiff-appellee.
Edisons&sBerman, Norman E. Berman, Denver, for defendant-appellant.
SILVERSTEIN, Chief Judge.
This is an appeal by the wife, in a divorce action, from permanent orders in which the court divided the property of the parties, awarded custody of the parties' minor child to the wife, and set the amount of alimony and child support payments to be paid by the husband to the wife. She seeks a new trial on the above matters on the ground that the trial court did not have sufficient information upon which to base its findings. She further urges that her attorney in the trial court, who is not her attorney in this court, waived her right to be heard and compromised and settled her case, all without her consent, and that his representation in her behalf was inadequate and incompetent.
The trial court had ample information on which to base its findings. The parties had filed financial affidavits setting forth their assets and liabilities. The determination of the trial court as to alimony and child support, custody, and the division of property was suported by ample evidence and showed no abuse of discretion. The order, therefore, will not be disturbed. Harrison v. Harrison, 170 Colo. 397, 462 P.2d 119.
On the date set for the hearing the court conferred with the attorneys for both parties for most of the morning. Thereafter the husband testified in open court. Most of his testimony related to the matter of custody. He was cross-examined at length by the wife's attorney. No other testimony was taken at the hearing. However, the wife, in response to a question by the court, made a substantial statement relative to visitation rights which the husband should or should not have.
The wife, in her motion for a new trial, asserted that her attorney would not let her testify although she had expressed to him her strong desire to do so. Attached to the motion were affidavits signed by the wife and her parents to this effect. In the wife's affidavit she sets forth the various items she would have testified to had she been allowed to take the stand. All of this tendered evidence was either before the court or was immaterial.
The record does not disclose any professional incompetence on the part of the wife's attorney, nor does it disclose that he in any way settled or compromised her rights. His decision not to have her testify did not, under the circumstances of this case, deprive her of any of her rights. As our Supreme Court stated in Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370,
'The choice of proceedings, the form, the manner of trial, and all matters of procedure and the like are within the sphere of (the attorney's) general authority, and as to such matters his client is bound by his action.'
We find no action of her trial court attorney that would require the granting of a new trial.
Judgment affirmed.
COYTE and DWYER, JJ., concur.