Opinion
Jan. 7, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Morrato, Gueck & Colantuno, P.C., Jay L. Gueck, Denver, for plaintiff-appellee.
Myrick & Newton, P.C., Barrie G. Sullivan, II, Denver, for defendant-appellant.
Page 967
SILVERSTEIN, Chief Judge.
The parties to this action were divorced in April 1969, at which time the trial court entered permanent orders concering custody, property division, and alimony. The husband was ordered to pay alimony to the wife in the amount of $250 per month, and the alimony award was affirmed on appeal. Smith v. Smith, 172 Colo. 516, 474 P.2d 619.
On July 17, 1973, the wife filed a Motion for Increase in Alimony to assist her in defraying the payment of a $3,000 judgment entered against her on July 1, 1973. The judgment was in settlement of the claim of Firemen's Fund American Insurance Company for reimbursement of funds paid to the husband for damages to the husband's house as the result of a fire set by the wife prior to the commencement of the divorce proceedings. A hearing was held on October 3, 1973, following which the trial court entered its order awarding an increase in alimony of $200 per month for 15 months, or until the amount of the judgment had been paid, at which time the alimony would return to the previous amount of $250 per month. The husband appeals. We affirm.
In its order the trial court found that, subsequent to the entry of permanent orders, the wife had been burdened unexpectedly with expenses which, when it entered its original permanent orders, the court had felt would be borne by the husband. The unanticipated expenses arose from the fact that, at the time of the divorce, it appeared to the court that the fire loss would be sustained solely by the husband; subsequently, however, the husband's insurer paid for the damage and, as subrogee, obtained a judgment against the wife for $3,000. The trial court stated at the modification hearing that it had considered the fire damage when making the admittedly modest alimony award and property division to the wife. At the hearing, counsel for both parties stipulated that the insurer's suit against the wife was not commenced until after the entry of permanent orders. In addition, the evidence is undisputed that the wife left a $4,000 a year job in May 1972 and that on March 14, 1973, she obtained her real estate salesman's license but had earned only $368 in commissions as of the date of the hearing. The above facts were sufficient to sustain the trial court's finding that there had been a change of circumstances since the entry of permanent orders.
On appeal, the husband does not contend that he is financially unable to pay the increase in alimony or that the amount of the increase is burdensome or oppressive. The husband does contend, however, that the temporary increase in alimony, despite its terminology, was actually a modification of the property settlement and was therefore erroneous absent a showing of fraud, concealment, misrepresentation, or overreaching. See Lay v. Lay, 162 Colo. 43, 425 P.2d 704. The husband argues that the increase should be characterized as a property settlement since, in his view, the increased payments were to discharge a liability existing prior to the date of the permanent orders and known to both parties and the court at that time. However, the above findings of the trial court expressly negate this contention.
We do not agree with the husband's characterization of the increase as a modification of the property settlement. In Magarrell v. Magarrell, 144 Colo. 228, 355 P.2d 946, the court stated that 'alimony is defined generally as payments necessary for food, clothing, habitation and other necessities for the support of the wife.' In the instant case, the wife's obligation to pay the judgment placed an additional strain upon her ability to pay for food, clothing, habitation, and other necessities.
It is fundamental that orders for the payment of permanent alimony entered after a contested hearing are subject to modification due to changed circumstances of the parties. Elmer v. Elmer, 163 Colo. 430, 431 P.2d 470. "Circumstances' includes 'practically everything which has a legitimate bearing upon the present and prospective matters relating to the lives of both parties." Hall v. Hall, 42 Cal.2d 435, 267 P.2d 249. To the extent that the wife's needs have increased since the divorce, alimony may be increased, provided that the husband is able to pay the larger amount. H. Clark, Law of Domestic Relations 459; See Livenston v. Livenston, 233 So.2d 841 (Fla.Dist.Ct.App.); In re Marriage of Siegel, 26 Cal.App.3d 88, 102 Cal.Rptr. 613. The determination of whether the circumstances of the parties have so changed as to warrant a modification of the order for alimony, like other fact questions, is within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. Elmer v. Elmer, Supra.
Our review of the record discloses no abuse of discretion on the part of the trial court in ordering the temporary increase in alimony; therefore, the judgment is affirmed.
BERMAN and KELLY, JJ., concur.