Opinion
Sept. 25, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Gary Lozow and Frederick Epstein, Frederick Epstein, Denver, for plaintiff-appellee.
Marshall Quiat, Denver, for defendant-appellant.
ENOCH, Judge.
Alvin R. Mahrer, defendant-appellant, appeals from a judgment which denied his motion for termination of alimony and which granted plaintiff-appellee Judith K. Mahrer's motion for an increase in child support and attorney's fees. We affirm.
The parties were married in 1952 and divorced in 1963. The original orders provided for alimony in the amount of $100 per month and child support of $100 per month for each of the two minor children born of the marriage. There have been subsequent court hearings and orders relative to arrearages in payments and custody matters. At the conclusion of the most recent hearing before a Master in December 1971, detailed findings and recommendations were made to the court and adopted as the court's judgment. Mr. Mahrer appeals from that part of the judgment which allowed the alimony to remain at $100 per month, increased child support for their son to $175 per month (custody of the other child being with the father at this time) and awarded Mrs. Mahrer $1,750 for her attorney's fees.
Mr. Mahrer contends that it was error to continue alimony since his former wife testified that she does not want alimony and does not want to be dependent upon her former husband. We find no merit in this contention. Though Mrs. mahrer did so testify on cross-examination, she also testified at great length as to her needs adn the needs of the one child living with her at that time. She stated that she needed continued financial aid from Mr. Mahrer and that she did not care whether the award was denominated alimony or child support or both. The court, in its discretion, determined that these needs could best be met by the continuation of alimony and by an increase in the child support.
It is further contended that there is no evidence of increased costs or needs to justify the increased child support payments. The record does not support this allegation. The child now living with the mother was only two years old when the initial order was entered and was eleven years old at the time of this hearing. There was evidence of the child's increased activities and of the increased cost of living. Though the evidence as to the child's increased needs was not as definitely separated from the needs of his mother as might be desired, there is sufficient evidence to support the judgment, and it will not be disturbed on review. Graves v. Graves, 171 Colo. 20, 464 P.2d 291.
Mr. Mahrer's final allegation of error is that he should not be required to pay Mrs. Mahrer's entire attorney's fee. The reasonableness of the fee is not contested, and it is undisputed that the financial condition of both parties has improved considerably since the time of the divorce. Mrs. Mahrer, however, was not in a postion to pay the fee even if she liquidated all of her present assets, while Mr. Mahrer had funds available in savings. The question of attorney's fees falls within the trial court's discretion. Cohan v. Cohan, 172 Colo. 563, 474 P.2d 792; Stovall v. Crosby, 171 Colo. 70, 464 P.2d 868. We find no abuse of that discretion in the case at hand.
Judgment affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.