Opinion
Sheldon F. Goldberg, Denver, for plaintiff-appellant.
David D. Mulligan, Denver, for defendant-appellant.
KELLY, Judge.
Plaintiff, Gerald T. Cooney, appeals from an order entered pursuant to C.R.S. 1963, 46--1--5(4), modifying an award of alimony and ordering payment of arrearages. We affirm.
A decree of divorce was entered on Cotober 2, 1970, incorporating a stipulation entered into between the parties on July 6, 1970, one paragraph of which provides:
'The Plaintiff (Gerald Cooney) shall pay to the Defendant (Patricia Cooney) the sum of $300 per month as alimony. Said payment shall be made at the rate of $300 per month on the 1st of each month commencing August 1, 1970. Said alimony payments shall continue at this rate until January 6, 1972, at which time the Court shall review the efforts of the Defendant in obtaining employment and the matter of discontinuing the alimony.'
Gerald Cooney made payments to Patricia Cooney at the rate of $300 per month until January 6, 1972, at which time he ceased making the payments because Mrs. Cooney had obtained employment. There was no court hearing and the record does not reflect that either party attempted to set the matter for hearing.
On May 5, 1972, Patricia Cooney filed a 'Motion for Reinstatement of Alimony' asking for an order continuing alimony payments and for arrearages. A hearing was held on this motion on August 15, 1972, after which the court assessed arrearages against Gerald Cooney for alimony unpaid since January 1972, and reduced the alimony payments to $150 per month, commencing with September 1972. Gerald Cooney appeals. Appellant argues that the above paragraph of the stipulation states the unambiguous intent of the parties that alimony should cease on January 6, 1972, if the wife obtained employment, and that the sole reason for the review date was to provide for continued alimony if her search for employment were unsuccessful. We do not agree.
The stipulation provided for future court review of the circumstances to determine whether alimony should be discontinued, and the statement of appellee's counsel, during the divorce proceedings on July 6, 1970, shows that continuation of the alimony was to be determined by the Court. Appellant's attorney (who is not appellant's counsel here) did not assert that the understanding of the parties was otherwise. In the absence of judicial modification, the original award of $300 per month continued in effect and the unpaid installments were properly assessed against Cooney as arrearages. See Engleman v. Engleman, 145 Colo. 299, 358 P.2d 864.
Gerald Cooney also contends that the award of $150 a month future alimony is inconsistent with the intent of the parties to terminate alimony when the wife obtained employment. The amount of alimony to be paid is in the sound discretion of the trial court and in the absence of a showing of abuse, the trial court's award must be affirmed. Brownfield v. Brownfield, 143 Colo. 262, 352 P.2d 674. The record before this court contains no transcript of the evidence on which the trial court based its order reducing the amount of alimony. Therefore, the presemption is that the judgment is supported by the evidence. Teets v. Richardson, 131 Colo. 592, 284 P.2d 233. For the same reason, the trial court's order dividing the tax exemptions equally between the parties, about which appellant complains, must be presumed to be correct.
Judgment affirmed.
SILVERSTEIN, C.J., and RULAND, J., concur.