Opinion
July 14, 1970
Editorial Note:
This case has been marked 'not for publication' by the court.
Victor E. DeMouth, Golden, for plaintiff in error.
Myrick, Branney, Frickey & Criswell, Norton Frickey, Richard H. Cairns, Denver, for defendant in error.
SILVERSTEIN, Chief Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This case arises from permanent orders entered following a decree of divorce. Upon hearing for permanent orders the trial court divided the parties' property and awarded the wife, Peggy, $100 per month alimony and $350 attorney fees. Peggy now asserts that the trial court committed error and abused its discretion in awarding inadequate alimony and attorney fees and in failing to find that she was substantially unemployable because of an arthritic condition.
After the hearing on Peggy's motion for a new trial, which was denied, the court awarded her an additional $250 attorney fees for this appeal. Marvin, the husband, asserts this was error.
We affirm all the rulings of the trial court.
Peggy's doctor testified that she had rheumatoid arthritis characterized by periods of remissions and exacerbations and that she would not be able to work during the exacerbations. He could not testify to the frequency nor to the duration of these nonworking periods. At a later hearing there was undisputed evidence that she was employed part time and that this work would continue to be available to her.
The record clearly demonstrates that the court did not abuse its discretion in awarding alimony and attorney fees in the light of Marvin's earnings and obligations and Peggy's needs. Nunemacher v. Nunemacher, 132 Colo. 300, 287 P.2d 662, 663.
The fact that Peggy is unsuccessful in this court does not in and of itself indicate an abuse of discretion by the trial court in awarding her attorney fees for prosecution of the writ of error. Its determination was rightly based on the facts existing on the date of the hearing and the award placed her on a parity with Marvin for the purposes of the appeal. Peercy v. Peercy, 154 Colo. 575, 392 P.2d 609.
Judgment affirmed.
DWYER and ENOCH, JJ., concur.