Opinion
May 23, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 719
Albert A. Norbont, John F. Mueller, Denver, for plaintiff-appellee.
Samuel J. Eaton, Denver, for defendant-appellant.
COYTE, Judge.
The parties were divorced on January 25, 1966. Temporary alimony and child support had been ordered prior to the divorce. Permanent orders were subsequently entered that provided for alimony and child support in significantly larger amounts than under the temporary orders. Defendant appealed the entry of the permanent orders and filed a motion captioned 'Motion for Relief From Order.' This motion was granted by the trial court on May 13, 1966. From the time permanent orders were entered until the date this court affirmed the trial court on defendant's appeal (Brown v. Brown, Colo.App., 473 P.2d 985), defendant continued to pay only the lesser amounts required by the temporary orders.
After this court's decision, plaintiff filed a verified motion for judgment for arrearages, which was granted. Defendant then filed a motion to vacate that judgment and a motion to alter the amount of alimony and child support payments claiming that there had been a change in circumstances since the entry of final orders. These motions were denied and defendant appeals.
The defendant raises two issues on appeal: (1) whether the trial court's order of May 13, 1966, stayed the effective date of the permanent orders or was merely a stay of execution, and (2) whether there had been a change in the circumstances of the parties since March 29, 1966, sufficient to require a modification of the alimony and support award. We affirm the decision of the trial court on both issues.
The defendant asserts that his motion of May 13, 1966, requested the court to postpone the effective date of the permanent orders until the issue was finally determined on appeal. He contends that this motion was granted and that therefore no arrearages representing the difference between the temporary and permanent amounts awarded had accrued from May 13, 1966, to October 23, 1970. Based on this reasoning, he contends that his motion to vacate the October 23, 1970, judgment should have been granted.
The May 13, 1966, order states, 'That the Motion for Relief From Order is granted pending the determination of supersedeas by the Supreme Court.' The defendant claims that this motion was based upon R.C.P.Colo. 60(b), which rule is ordinarily relied on for the vacating or setting aside of a judgment. He cites White v. Anderson, 155 Colo. 291, 394 P.2d 333, as supporting the authority of the trial court to stay effective date of its order.
Our concern is not whether such relief can be granted but whether in fact it was. In his motion the defendant requested relief until he could file an application for supersedeas in the supreme court. He did not request that the judgment be set aside not did he allege any grounds which would support such action. The trial court (a different judge than the one who originally tried the case in 1966), in denying the motion to vacate the judgment for the arrearages, stated that, 'the trial court did not by its order of May 13, 1966, intend in any way to deprive the plaintiff and the minor children of the parties their right to support from the defendant.' It is clear that the order of May 13, 1966, was a stay of execution under R.C.P.Colo. 62(b) until the supreme court acquired jurisdiction of the case.
Defendant also alleges that the trial court erred in refusing to allow the trial judge who heard the case in 1966 to testify as to his purpose in signing the order. (That judge was no longer serving on the district court bench when the present controversy arose). We agree with the trial court that it would have been improper to have permitted the original trial judge to testify, and further we agree that the order constituted a stay of execution in accordance with R.C.P.Colo. 62, rather than being temporary relief from the judgment under R.C.P.Colo. 60.
The defendant's second contention is that the court abused its discretion in failing to amend the order of March 29, 1966, to eliminate support for the children who were emancipated in the interim and to reduce alimony because of a change in circumstances. In the original order, child support was awarded for each child in a separate amount, and the record discloses that the defendant was relieved of child support as each child became emancipated. The judgment for arrearages does not include child support for any child after that child became emancipated, and therefor defendant has no basis for complaint in this regard.
As to the defendant's obligation to pay alimony, the trial court heard testimony, reviewed the financial affidavits of the parties, and found that there was no substantial change in defendant's financial circumstances after March of 1966 and that he was able to pay the alimony and child support as provided in the order. The plaintiff's circumstances had improved because of employment, which apparently would only be temporary, but her needs and those of the minor son had increased. Our review of the record reveals no abuse of discretion in the court's findings and conclusions.
'The determination of whether circumstances of the parties has 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. In the absence of an abuse of that discretion it will not be disturbed on review.' Elmer v. Elmer, 163 Colo. 430, 431 P.2d 470.
Judgment affirmed.
CHOCH and PIERCE, JJ., concur.