Opinion
June 11, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Litvak, Schwartz & Karsh, P.C., Alan E. Karsh, Denver, for petitioner-appellee.
Kuttler, Redman & Anderson, P.C., J. E. Kuttler, Aurora, for respondent-appellant.
ENOCH, Judge.
James D. Crabdree, respondent, appeals from permanent orders regarding property division, maintenance, and child support entered by the trial court in conjunction with a decree of dissolution of marriage. We reverse.
Petitioner, Dixie Lee Crabdree, and respondent had been married three years at the time dissolution proceedings were instituted. Custody of the one child born of the marriage was awarded to petitioner. In determining the financial rights and obligations of the parties, the trial court entered the following orders:
(1) The family home, which was determined to be marital property, was ordered to be sold and the equity divided equally.
(2) Petitioner was awarded $150 per month for child support.
(3) Petitioner was awarded $200 per month for 10 months as temporary maintenance.
(4) Respondent was ordered to assume all of the family's outstanding debts, which totalled $1087. This amount included two final car payments of $105 per month, plus continuing monthly payments of approximately $50 on the other debts.
(5) Respondent was ordered to pay petitioner's attorney's fees of $500 in monthly installments of $50 per month beginning two months after the orders were entered.
As a result of these orders, respondent was obligated to pay out $505 per month for the first two months after entry of the decree, $450 for the next eight months, and a lesser sum thereafter. The record shows that respondent's net monthly salary was $589. Respondent contends that the trial court abused its discretion in entering orders which left him less than $100 per month to live on. We agree.
Although the trial court has wide discretion in determining awards of maintenance and child support, McMichael v. McMichael, 152 Colo. 65, 380 P.2d 233, it may not enter an order which will impoverish one of the parties. Santilli v. Santilli, 169 Colo. 49, 453 P.2d 606.
'Adjudication (regarding support payments) should not result in an appropriation of the entire estate of the husband, or in the impoverishment of the husband to the extent that he is unable to maintain himself as a working unit.' Lopez v. Lopez, 148 Colo. 404, 366 P.2d 373.
A number of factors must be weighed in awarding maintenance and child support, one of which is '(t)he ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.' 1971 Perm. Supp., C.R.S. 1963, 46--1--14(2)(g); See 1971 Perm. Supp., C.R.S. 1963, 46--1--15(1)(f).
Evidence presented at the hearing shows that although petitoner was not working at that time, she had been employed prior to the birth of her child and is presently capable of earning approximately $600 per month gross. She did not request an award of maintenance, but the trial court felt it was necessary to grant temporary maintenance for a reasonable period of time while she sought employment. However, when the individual sums awarded to petitioner are totalled, it is clear that a crushing burden, albeit of short duration, was placed on respondent. The court's order imposed grossly disproportionate obligations on the parties. We hold that, under the circumstances of this case, the trial court abused its discretion in failing to allocate more equitably the burdens of dissolution of the marriage.
In the situation presented here, the amount of attorney's fees awarded was particularly inappropriate. As stated in Peercy v. Peercy, 154 Colo. 575, 392 P.2d 609, the purpose of awarding attorney's fees is to place the parties on a 'plane of equality' in divorce proceedings.
'But such allowance will not be granted unless it is shown that the wife is destitute in whole or in part of the means necessary to maintain herself and carry on the litigation. A concomitant to this condition for relief is a showing of the husband's present ability to pay such allowance.'
In this case, respondent was clearly unable to assume responsibility for both his and his wife's attorney's fees in the amount awarded.
The judgment relative to division of property, support, maintenance and attorney's fees is reversed and the cause remanded for a redetermination of the issues consistent with this opinion.
SILVERSTEIN, C.J., and RULAND, J., concur.