Opinion
Rehearing Denied May 7, 1970.
Certiorari Denied July 9, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 424
Edward A. Jersin, Denver, for plaintiff in error.
Ireland, Stapleton, Pryor & Holmes, Wilbur M. Pryor, Jr., Denver, for defendant in error.
DWYER, 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.
Cora Shantz, plaintiff below in this divorce action and plaintiff in error here, will be referred to as the 'wife.' Frank Shantz, defendant below, will be referred to as the 'husband.' After the trial court's judgment, the husband died and the First National Bank of Denver, executor of his estate, was substituted as defendant in error.
The matter here for review is the property settlement ordered by the trial court after the court had granted decrees of divorce to both of the parties. The parties were married in 1955 when the wife was 56 years of age and the husband was 53. The marriage, the second for each, occurred after the death of their previous spouses, and lasted approximately ten years before termination by this divorce.
The husband was a pharmacist, who, in addition to his salary, had income from investments and was also the income beneficiary of two trusts. The trusts had total assets of approximately $250,000.00.
At the time of the decree, each of the parties owned property in his or her own name; and the parties held real and personal property as joint tenants. Plaintiff's assets, held in her own name, were valued at $25,995.00. This included stock and bearer securities. The evidence indicates that she had acquired these assets from gifts which she had received from her husband; from investment of her share of income from jointly held securities; and from investment of 'surplus' household expense monies saved by her efficient management of the household. The defendant's assets, held in his own name, were valued at $36,245.94. The jointly held assets had a value of approximately $162,900.00. This included the family residence acquired by the parties as joint tenants during their marriage. This residence was valued at $42,000.00. The balance of the jointly held properties had a value of approximately $120,000.00 and included securities and a promissory note. Some of the jointly held assets were acquired during the marriage, some were owned by the husband prior to marriage and were placed in joint tenancy during the marriage. Some of these transfers were made out of affection, some for tax purposes, and some, according to the husband, solely because of the wife's repeated insistence.
In the division of property ordered by the court, the court allowed the wife to retain the property standing in her name alone at the time of the decree, plus one-half of the unregistered securities in her possession, and allowed her to have selected furniture. All of the joint tenancy property, one-half of the unregistered securities in the wife's possession and the house were ordered delivered and transferred to the husband. The court ordered the husband to pay permanent alimony in the amount of $150.00 per week.
The wife complains that the trial court's award to her of assets amounting to only $25,100.50 (as determined by the court) in addition to the furniture and the Cadillac automobile, while the husband received or retained property having a value at the time of the decree of almost $200,000.00 exclusive of any rights to income which he had from the two trusts, is grossly inequitable. She contends that the court's award violated the provisions of C.R.S.1963, 46--1--5(2), requiring fair and equitable property division, and that the court's determination is unconscionable and constitutes an abuse of discretion.
The statute authorizing the court on the entry of a decree of divorce to divide property authorizes the court to 'make such orders, if any, as the circumstances of the case may warrant relative to division of property in such proportions as may be fair and equitable.' C.R.S.1963, 46--2--4. It is frequently held that this statute confers a discretion on the part of the trial court to divide the property of the parties, but the discretion so conferred is not absolute and when abused will be set aside. Stephenson v. Stephenson, 134 Colo. 96, 299 P.2d 1095; Bell v. Bell, 150 Colo. 174, 371 P.2d 773; Menor v. Menor, 154 Colo. 475, 391 P.2d 473; Bell v. Bell, 156 Colo. 513, 400 P.2d 440.
The Supreme Court has held in Menor v. Menor, Supra, that a property division must be made upon the basis of conditions as they exist at the time of the hearing and decree. In that case, the court said:
'The authority of the trial court with reference to a division of property in divorce actions is to be found in C.R.S. '53, 46--1--5(2), * * *.
'This statute authorizes the trial court to make an equitable and just division of the property of persons involved in divorce proceedings as that property is shown to exist at the time of the order entered with regard thereto. We have held that property division must be made upon the basis of conditions as they exist at the time of the hearing and decree rather than at the time of the marriage. Stephenson v. Stephenson, 134 Colo. 96, 299 P.2d 1095; Shapiro v. Shapiro, 115 Colo. 505, 176 P.2d 363.'
The court's order divesting the wife of her entire interest in the jointly owned property cannot be justified on the basis of the conditions as they existed at the time of the decree.
Under the facts of the particular case, the house and the other property which the parties owned as joint tenants at the time of the decree should have been equitably divided between them as required by the statute. To take it all away from the wife and give it all to the husband was not a proper division.
During the marriage, the husband voluntarily placed the family home and some of his securities in joint tenancy with the wife. These assets increased in value during the marriage. Considering the extent and value of the joint assets, considering the extensive personal holdings of the husband, considering the age of the parties and the other factors in the case, the wife was entitled to a more equitable division of the property.
The paramount concern of the court in making a property division is the situation of the parties at the time of the decree and not their situation at the time of the marriage. Therefore, the court's finding that the wife was insolvent at the time of the marriage does not justify the order. Neither the findings of the court nor the evidence in the record justify the court's decree divesting the wife of all interest in the jointly held assets. The order is an abuse of discretion.
The judgment of the court is reversed and the cause remanded for a new trial.
COYTE, J., concurs.
PIERCE, J., dissents.
PIERCE, Judge (dissenting).
I most respectfully dissent from the majority opinion. My colleagues conclude that the trial court's order was an abuse of discretion because there was no justification for divesting the wife of her interest in the subject jointly-owned property on the basis of conditions existing at the time of the decree, and because the joint tenancy property was not 'equitably' divided between the parties as required by statute. They imply that the instant property division was based upon conditions at the moment of marriage; and, I am afraid, they infer, in the absence of anything in their opinion to the contrary, that equitable division of jointly-held assets necessarily means division on a fifty-fifty basis. I disagree.
As their opinion states, division of property in divorce cases is statutorily provided for by C.R.S. 1963, 46--1--5(2). The statute does not specify factors which the trial court may, or must, consider in reaching a division; but the Colorado Supreme Court, through a long line of cases, has supplied general guidelines:
'* * * among (the factors) are the value of the estate to be divided; the financial condition of the parties; the ability of each spouse to earn money; how the property was acquired; the age and status of the parties, and all pertinent facts and circumstances bearing on the question.
'* * *
'Matters of alimony and property settlement between husband and wife are within the sound discretion of the trial judge, and if supported by competent evidence will not ordinarily be disturbed on review. (citing cases). We have uniformly held that we will follow the trial court's findings in matters of this kind, if they have support in the evidence.'
Nunemacher v. Nunemacher, 132 Colo. 300, 302--303, 287 P.2d 662, 663.
There is no rule in Divorce property settlements that either of the parties has an indefeasible right to separate or joint property held by them simply because they possess, or hold title to it. Quite clearly the purpose of, and policy behind, C.R.S. 1963, 46--1--5(2) is to relax traditional property law in divorce cases so that fair and equitable property divisions based upon the needs and equities of the parties is attainable, which might not otherwise be possible because of technical concepts of title. Therefore, divisions such as in the instant case in which the wife has been divested of '* * * property which the husband has settled on her * * *' have frequently been upheld. Ikeler v. Ikeler, 84 Colo. 429, 271 P. 193, 194; see also, Bieber v. Bieber, 112 Colo. 229, 148 P.2d 369.
Although there is no requirement that the wife contribute to acquisition of property in order to share in a division of it, the Colorado Supreme Court has never stated that a trial court is Precluded from considering the fact of two contributed to the acquisition of the property in arriving at a settlement; and it has on many occasions upheld property divisions based, in whole or in part, upon that consideration. Liggett v. Liggett, 152 Colo. 110, 380 P.2d 673; see also Nunemacher, supra.
Finally, as my colleagues point out, division of property must be decreed 'upon the basis of conditions as they exist at the time of the hearing and decree rather than at the time of the marriage.' Menor v. Menor, 154 Colo. 475, 480, 391 P.2d 473, 476 . With these fundamental principles in mind, I will now proceed to augment, from the record, the evidence set forth in the majority opinion.
The record shows that this was the second marriage for each of the parties. There were no children born as issue of this marriage. The husband was a pharmacist, earning a net take-home pay of approximately $150 per week. He was also the Income beneficiary, only, of two trusts established for his children by his mother. His total annual income from his salary and from the trusts was approximately $20,000 per year. The wife had operated an insolvent business, which was liquidated immediately after the marriage (with debts paid by money contributed by the husband) and was unemployed throughout the ten years of the marriage.
The marriage was not particularly happy. There was apparently substantial friction over the wife's attitude toward the husband's children by his first marriage and over the residency of her daughter by her first marriage in the couple's house. Further, she apparently made financial demands which the husband was able to satisfy only 'occasionally'--in part by making transfers of his solely-owned or inherited property into joint tenancy. She apparently performed her functions as a housewife satisfactorily, including accompanying her husband on various trips and caring for his needs; however, it appears that the trips were usually taken at her insistence.
Additionally, the record shows that the husband had undergone surgery for a severe vascular condition in his legs and was confronted with the burden of continued medical expense; his ability to continue working was seriously in doubt.
Finally, it is clear from the record that All assets of the two parties, including Those in the wife's own name or in her possession, were the husband's prior to the marriage, or were acquired subsequent to the marriage solely from his earnings or liquidation of his wholly-owned assets.
The trial court found as follows:
A. That the wife made no financial contributions to the marriage; her contribution to the union was 'culture' only; and that the husband contributed certain funds to the wife to pay off the debts of her business which was liquidated shortly after the marriage.
B. That after the marriage, the husband purchased a home in Denver valued at approximately $42,500.
C. That the wife ran the household economically enough to save money with which the purchased certain bearer bonds worth $9,000, which she kept in her possession.
D. That the husband transferred a number of securities into joint tenancy for tax purposes, after the marriage.
E. That certain real estate in Fort Collins was sold during the marriage and notes taken on that sale secured by a deed of trust in the joint names of the two parties.
Based upon these findings, amply supported by the evidence, the court awarded the wife certain assets standing in her own name and certain jointly-held assets (totalling $25,100), plus household furnishings (valued at $1,700 by the wife, but at approximately $17,000 by the husband), plus a 1963 Cadillac automobile. Additionally, the court awarded her $150 per week alimony (amounting to the husband's Entire weekly net take-home pay as a pharmacist) 'for as long as she shall live or shall not become remarried.' That the property division must be considered in light of this substantial alimony award is clear from Baugher v. Baugher, 158 Colo. 547, 408 P.2d 443.
From the court's findings (all based on the situation At the time of the decree), and its decree, it is clear that the trial judge considered the ability of each spouse to earn money; how the subject property was acquired; the value of the estates of the parties; the contribution (and lack of contribution) of each of the parties to the property to be divided, in addition to other pertinent facts and circumstances bearing on the question of division. Had these factors been considered on the basis of the situation at the time of the marriage, the wife would probably have received nothing whatsoever, instead of property valued at somewhere between Thirty and Forty-five Thousand Dollars (depending upon whose evaluation is accepted).
The majority opinion indicates that the joint tenancy property was not equitably distributed. I acknowledge that the wife may have had some naked legal title in the joint property; but in considering all of the factors involved in the contribution to, and acquisition and management of, the assets, it is certainly not manifest that the division was inequitable. To carry the reasoning of the majority to a logical conclusion, it would be necessary to adopt a rule that all joint tenancy property must be divided on a fifty-fifty basis unless there is very strong evidence necessitating a contrary disposition. Such a rule would make this state virtually a community property state insofar as joint tenancy property is concerned, and would create a policy resulting in far more inequity than the present system, which leaves the consideration of matters such as legal and equitable title to the discretion of the trial court, to take into account with all the other factors involved in the property division.
What is more important, however, is that I consider that the majority opinion has invaded the historically discretionary domain of the trial court, without supplying a rational justification for this invasion. The opinion indicates that the court has abused its discretion, without any clear-cut indication as to where the abuse is, or how it may be corrected upon retrial. The trial court had before it, at the time of the hearing, both parties to this dispute, their witnesses, and their exhibits; it was clearly better able to properly evaluate the evidence, testimony, needs, credibility and attitudes of the parties, than is this Court at the present time--an essential element of any discretionary decision such as a property division. Property settlement and alimony are complex and delicate matters and the trial court's determination of these matters ought not to be set aside unless there is a Patent abuse of discretion. Moats v. Moats, Colo., 450 P.2d 64; Traynor v. Traynor, 146 Colo. 70, 360 P.2d 431; Nunemacher, supra; and Granato v. Granato, 130 Colo. 439, 277 P.2d 236. I find no such abuse in this case.
I do not mean to imply that if I were the trial judge I would have entered the same decree. My position is well stated in Britt v. Britt, 137 Colo. 524, 527, 328 P.2d 947, 948:
'While we might not have made the identical order which was entered by the trial court, we cannot say that the trial court acted arbitrarily or abused its discretion in promulgating the decree, nor can we under the record presented make an 'adjustment and reevaluation' as suggested by counsel * * *'.
The latter is exactly what the wife would have us do, and what the majority opinion has, in effect, done.
I would affirm the judgment.