Opinion
Dec. 7, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
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Houtchens, Houtchens & Dooley, John J. Dooley, Greeley, for plaintiff-appellee.
Nordmark, Warberg & Mast, Godfrey Nordmark, Sonja E. Warberg, D. Chet Mast, Fort Collins, for defendant-appellant.
ENOCH, Judge.
This is a divorce case in which the defendant-appellant (wife) challenges certain rulings of the trial court, as well as the property settlement judgment entered subsequent to a decree of divorce which was granted to her.
The parties were married in 1962 and this divorce was granted August 21, 1970. Both parties had substantial assets at the time of their marriage, with the husband having considerably more than the wife. During the marriage additional property was acquired and several deplexes were built for rental purposes. It is undisputed that it was the husband's money and credit which made possible the purchase and construction of the rental units and that the wife had the full responsibility for the construction, maintenance and management of the units. The trial court found that there were assets totaling approximately $150,000 which were to be divided and it awarded to the wife assets valued in excess of $80,000 plus $8,000 in alimony. The wife had at the time of marriage assets valued at $14,000.
I.
The wife alleges that the trial court erred in refusing to grant several requested continuances.
It would serve little purpose to detail all of the requests made for continuances by the wife's three different attorneys. Suffice it to say that we agree with the trial court that they were all without merit. The main issue raised here concerns the court's refusal to grant a continuance requested because of an alleged danger to the health of the wife. Her counsel, in seeking the continuance, argued that because she had had surgery in July, it would be injurious to her health to have to participate in the trial on the scheduled dates of August 20 and 21, 1970. The wife presented a letter to this effect from a doctor addressed, 'To Whom It May Concern', but there was no medical affidavit submitted with the motion and no doctor was called to testify. The wife was present during the trial of August 20 and 21 and during the property hearing on September 3rd; she testified on all matters without any reference to any physical or emotional handicap or discomfort due to the trial; and there was no evidence presented after the hearings that the wife's interest or health had been jeopardized as a result of the court appearances. Further, the trial court indicated that it had observed the wife throughout the hearings to determine if there were any medical reason that the hearings should be stopped.
The granting or denying of a continuance is within the discretion of the trial court. Hoy v. North Jeffco Metropolitan Recreation District, 160 Colo. 382, 417 P.2d 790, Hicks v. Hicks, 155 Colo. 463, 395 P.2d 224. We find no abuse of discretion by the trial court in this case in any of its rulings denying continuances.
II.
The husband filed a financial statement setting forth all of the assets of both parties and the values which he had determined on his own or in consultation with a realtor. The realtor also testified as to values after being qualified as an expert to the satisfaction of the court. The wife objected to all of this evidence and to the acceptance of the realtor as an expert appraiser. The husband, as an owner of the property, was entitled to give his opinion as to the value of the properties and the financial statement was nothing more than was required by court rules in domestic relations cases. The realtor testified that he had considerable experience in buying, selling and managing real estate in the area and had done appraisal work, including appraisals for the State of Colorado and for the probate court. The trial court's determination of qualification will not be disturbed unless it is shown as a matter of law to be erroneous. Denver v. Lyttle, 106 Colo. 157, 103 P.2d 1. There was sufficient evidence to support the trial court's ruling on the realtor's qualification.
The wife's main objection to the realtor's appraisals was that he made his appraisals on some of the properties from an exterior observation only. The manner in which an appraisal is made goes to the weight of the evidence and the appraisal testimony should not be excluded as a matter of law if there is some reasonable basis for the values given.
The wife makes no claim to any of the inheritance, but claims the court should have considered it in determining what funds were available to the parties. The court allowed considerable testimony to the effect that the husband's mother had died following the separation of the husband and wife; that the will had been admitted to probate; that the taxes had not yet been determined; that no distribution had been made to the husband as beneficiary and that there had been no 'accretion' of the mother's estate during the marriage due to any efforts of the parties or otherwise. The court also allowed testimony concerning any benefits which the husband had received as executor of the estate.
A trial court has wide discretion in matters relating to alimony and property settlement. Nunemacher v. Nunemacher, 132 Colo. 300, 287 P.2d 662. The trial court did not abuse its discretion under the facts of this case in refusing to consider further the assets of the mother's estate.
The wife attempted to impeach the husband's financial statement filed with the court by introduction of two old financial statements on file with a bank and all of the receipts and withdrawals from the husband's bank account during the course of the eight years of the marriage. The financial statements were several years old and there was evidence to the effect that the husband had not prepared them. The court properly rejected the old financial statements as being too remote and incompetent and properly rejected the evidence of receipts and withdrawals, since there was no showing that they had any materiality or relevancy to the issues.
III.
The wife alleges that she should have been awarded more of the rental properties, claiming that the evidence showed that total contributions to and accumulation of said assets were made possible by virtue of the wife's contributions. The record shows that the court took into consideration the wife's contributions and as a result awarded her a considerable portion of the assets. The determination of the trial court as to the division of property was supported by ample evidence and shows no abuse of discretion. The order, therefore, will not be disturbed. Davis v. Roberson, 160 Colo. 343, 417 P.2d 507; Liggett v. Liggett, 152 Colo. 110, 380 P.2d 673.
The court's denial of attorney's fees and costs to the wife is also alleged as error. The trial court stated that it did not allow attorney's fees because it felt that the wife was receiving enough in the property settlement and that she had profited considerably.
The allowance of attorney's fees is within the sound discretion of the trial court. Stovall v. Crosby, 171 Colo. 70, 464 P.2d 868. The case of Smith v. Smith, Colo., 474 P.2d 619, is cited by the wife as authority for her position. That case holds that attorney's fees should be allowed for the wife where her estate is small and disproportionate to the husband's estate. Such is not the situation in the case at hand. Considering the fact that the wife had some assets prior to this marriage and has received a substantial portion of the available assets valued at more than six times what she brought into the marriage and representing over half of the value of the divisible property, including her improved home, rental properties, stock, a club membership, numerous items of furniture, plus alimony, we cannot say as a matter of law that there was an abuse of discretion.
We have reviewed all of the other alleged errors and find them to be without merit.
Judgment affirmed.
DUFFORD and PIERCE, JJ., concur.