Opinion
Rehearing Denied July 2, 1970.
Page 986
Samuel J. Eaton, Denver, for plaintiff in error.
John F. Mueller, Albert A. Norbont, Denver, for defendant in error.
ENOCH, 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 is a domestic relations case dealing with questions relating to alimony, property division, child support and attorney fees. Joseph Lyman Brown, plaintiff in error, was defendant below and Shirley M. Brown was plaintiff below. The parties will be referred to herein according to their trial court designation.
Plaintiff began this action by filing for separate maintenance on September 15, 1964, to which the defendant answered and counterclaimed for divorce. On December 4, 1964, the trial court entered an order which incorporated a stipulation of the parties hwerein the defendant was to pay $250 per month in temporary alimony, $150 per month for temporary child support and $270 per month mortgage payment on the family home. The plaintiff moved to have the alimony and child support portions of the above order increased after the family home was sold by the parties. This motion was supported by an affidavit wherein the plaintiff stated the total requirements for herself and the two children of which she had custody to be $573.40. In its order of September 16, 1965, the court ordered the defendant to pay $375 per month temporary alimony and $150 per month temporary child support.
The plaintiff amended her complaint to one asking for a divorce, and a non-contested decree of divorce was granted to the plaintiff on January 25, 1966. Custody of the two younger children was given to the plaintiff and the defendant was awarded custody of the two older boys. However, the oldest boy ultimately elected to live with the plaintiff instead of the defendant. At this hearing, the plaintiff submitted another affidavit to the court to support her demands. This affidavit claimed that her needs amounted to $558.20 per month.
A permanent alimony and support order was entered by the court on March 29, 1966, wherein defendant was ordered to pay $550.00 per month alimony, $175.00 per month child support, $1,000.00 attorney fees to be paid at the rate of $100.00 per month, and $50.00 per month toward liquidation of a $6,000.00 outstanding judgment against both parties.
Both parties filed motions for new trial. Plaintiff claimed the trial court erred in not considering defendant's interest in the corpus of a spendthrift trust in determining its award. Defendant claimed the total award of $875.00 per month was confiscatory and an abuse of discretion on the part of the trial court inasmuch as his total net monthly income was $926.70. It should be noted that the payment for attorney fees would be completed in ten months and the $6,000.00 debt was an obligation owed to defendant's sister which was long overdue when it was reduced to judgment after this divorce action was instigated. Both motions were denied by the trial court and defendant sought writ of error, whereupon plaintiff cross-appealed.
I
As a preliminary to consideration of the merits of the appeal, we will consider the defendant's claim that the trial court erred in not striking the plaintiff's motion for new trial because it was not supported by a brief. We do not agree. The purpose of a supporting memorandum brief is for the benefit of the trial court in its own review and evaluation of the case and the motion for new trial. The parties had filed briefs with the court at the conclusion of the case. The purpose of the rule was met by these briefs which were accepted by the court.
II
The plaintiff's cross-claim that the trial court erred in not considering the corpus of the trust in arriving at its award is basic to resolving the issues presented by defendant's appeal. The trust was created under the will of James Leslie Brown, defendant's deceased father. Its beneficiaries are Joseph Lyman Brown, the defendant in this action, Barbara Brown Fischer, and Dorothy Brown Hunter, the sisters of the defendant. The defendant's share of the corpus consists of 7,111.89 shares of stock in the Thompson Pipe & Steel Co. and a one-third interest in a mountain cabin. In its findings of fact, the trial court estimated the value of the stock at $425,000.00. The trustees are the First National Bank of Denver and Joseph Lyman Brown. The trust provisions significant to this appeal are the spendthrift clause, the clause which provides that the corpus of the trust vests in the defendant upon reaching his fiftieth birthday, and that the income of the trust be paid monthly to the defendant.
We think the trial judge did not abuse his discretion in this case, by refusing to consider the corpus of the trust in making his determination of the award. A trial court has wide discretion in matters relating to alimony and property settlement. Nunemacher v. Nunemacher, 132 Colo. 300, 287 P.2d 662, 663. One of the considerations in matters of alimony and property division is to keep the wife at about the same standard of living which she enjoyed during the marriage. MacDonald v. MacDonald, 120 Utah 573, 236 P.2d 1066. However, the award to the wife is limited by the husband's ability to pay as measured by his income and property. MacDonald v. MacDonald, Supra.
The parties in this case never enjoyed the benefits of the corpus of the trust over and above the income which they received under the spendthrift clause. The principal or corpus was never a factor in determining their standard of living while they were married. Thus, it should not be taken into consideration after the marriage has ended.
III
The defendant's assignment of error in this case is that the award made by the trial court is confiscatory and an abuse of its discretion in light of his income. We do not agree.
In September of 1964, when the first step in this action was taken, defendant's monthly income was $1,586.00, $560.00 of which came from the spendthrift trust, the remaining $1,026.00 being attributable to his salary as Vice President of Thompson Pipe & Steel Co. Shortly after the plaintiff initiated the action, the defendant resigned his post as Vice President. The plaintiff asserts that this was a deliberate move by the defendant to reduce his income. The defendant's evidence indicates that the reason for the resignation was a long standing dispute between the defendant and his co-beneficiaries and the President of Thompson Pipe & Steel Co. over the management of the company. The defendant did, however, remain on as Secretary and has since been paid $576.00 per month for holdiong that position. The defendant also received special distributions from the trust from time to time over and above the monthly payment. The record indicates that the defendant did not have to be present at Thompson Pipe & Steel every day in order to continue receiving his salary. In fact, the President of the company testified that defendant's only real duty as Secretary was to attend the annual meeting. The defendant's testimony disputed this. It was his feeling that his daily presence was necessary in light of his interest in the company. The trial court held that the defendant had the assets and ability to meet the obligations of support, and we will not disturb that finding on appeal as it was supported by competent evidence. Heckel v. Heckel, 150 Colo. 428, 373 P.2d 303.
We find no abuse of discretion on the part of the trial court and, therefore, the judgment is affirmed.
SILVERSTEIN, C.J., and DWYER, J., concur.