Opinion
As Modified on Denial of Rehearing Sept. 8, 1971.
Page 1054
Richard A. Zarlengo, Denver, for plaintiff in error.
Johnson & Kidneigh, P. C. Jon F. Kidneigh, Denver, for defendant in error.
DWYER, Judge.
This case was transferred from the Supreme Court pursuant to statute.
Stuart Irwin Singer brought this action to obtain a divorce from his wife Eileen kay Singer. She filed an answer and counterclaim. The court thereafter granted decrees of divorce to both parties. The wife was awarded custody of the minor child of the parties. Subsequently, the court entered orders relative to division of property, and for alimony and child support. The wife, appearing here as plaintiff in error, seeks reversal of these orders.
The parties were married in 1963. At that time the husband was in his second year of dental school, and he continued his education until his graduation in 1967. During this time the wife was employed as a school teacher and her salary of approximately $5,500 per year was the principal support of the parties. After his graduation the husband interned at Denver General Hospital for one year and the parties lived on his income of $300 per month. In June of 1968, the husband purchased a dental practice and commenced the practice of his profession. In July of 1968, the parties adopted a child and they agreed that the wife would not work, but would remain at home and care for the child. The husband filed the divorce action in March of 1969.
The parties owned no real estate. The court divided their personal property as follows: Each of the parties was awarded an automobile and one-half of an $800 savings account. The wife was permitted to retain most of the household furniture, appliances, and furnishings. The husband was awarded all of his equipment, accounts receivable, and other business assets. The husband was ordered to pay the wife the sum of $2,000, as her equitable share of the business assets. The husband was further ordered to pay $100 per month child support and the sum of $250 per month alimony for a period of one year.
The wife contends that the husband's business had a net worth of $7,000, and that she was entitled to more than the $2,000 which the court awarded her in the property division. It is true that the wife received less than one-half of the net business assets, but the court, in dividing property on divorce, is not required to divide it equally. The court may award a wife more or less than one-half of the assets as the circumstances of the case may require. The amount of property awarded to the wife in this case is not, when all of the facts and circumstances are considered, so disproportionate to the total assets of the parties as to constitute an abuse of discretion.
The wife also contends that the court abused its discretion in allowing only $250 per month in alimony, and further abused its discretion in limiting the payment of alimony to a period of one year. The husband's monthly gross receipts during the first eleven months of his practice ranged from $2,246 to $5,268. The wife offered evidence that the husband's monthly net income at the time of the hearing was approximately $1,400. The husband claimed that he could only draw $600 or $700 per month from his practice because, in acquiring the practice, he had incurred a substantial indebtedness which he was required to repay. The court made no finding on the question of the husband's net income. The wife established a need for more than the amount of alimony and support money awarded. However, the monthly amount allowed is not so inadequate, under all of the circumstances of the case, as to constitute an abuse of discretion.
The granting of alimony and the division of property in divorce proceedings are matters resting within the sound discretion of the trial court and, unless there is an abuse of this discretion, its judgment will not be disturbed. Hyde v. Hyde, 169 Colo. 403, 457 P.2d 393.
The court's limitation of the alimony payment to a period of one year presents a more serious question. C.R.S. 1963, 46--1--5, authorizes the court, after the issuance of a divorce decree, to make such orders, if any, as the circumstances of the case may warrant, for alimony. This statute authorizes the court to order the payment of alimony in installments. The statute provides that the court retain jurisdiction to revise such provisions for alimony as changing circumstances of the parties may require. The amount of alimony awarded a wife in a divorce action is measured primarily by the wife's needs and the husband's ability to pay. In fixing the amount of alimony, the court must base its findings on the financial conditions, abilities, and needs of the parties as they appear at the time of the hearing, rather than on what conditions might have been in the past or may be in the future. Watson v. Watson, 135 Colo. 296, 310 P.2d 554.
This statute also authorizes the court to order alimony in gross or 'lump sum alimony.' This is an award of a fixed and definite amount of alimony, and it may be ordered paid in one sum or in installments for a definite length of time. Although the Colorado Supreme Court has not passed upon the question of whether an award of alimony in gross is subject to later modification, it is generally held under statutes similar to ours that an award of alimony in gross is a definite and final judgment, and the court is without jurisdiction to subsequently modify the judgment. Cummings v. Lockwood, 84 Ariz. 335, 327 P.2d 1012; Ziegenbein v. Damme, 138 Neb. 320, 292 N.W. 921.
The question of whether an alimony award shall be made in the form of periodic alimony or in the form of alimony in gross is generally held to be a matter within the sound judicial discretion of the trial court. Cummings v. Lockwood, Supra. However, periodic payments are normally preferred over alimony in gross because the former allows a judge to change the order from time to time as the means and needs of the parties change. Yandell v. Yandell, 39 So.2d 554 (Fla.); 24 Am.Jur.2d Divorce and Separation s 616. The power to award a lump sum should be exercised only where special circumstances require it or make it advisable, and such an award should be supported by some impelling reason for its necessity or desirability. Stefonick v. Stefonick, 118 Mont. 486, 167 P.2d 848, 164 A.L.R. 1211.
In the present case the trial court's order for the payment of $250 per month for a period of one year was an award of $3,000 as a gross or lump sum alimony, payable in fixed installments. The court made no findings of fact and the court's reason for its order is not disclosed. There is nothing in the record which justifies the trial court's order.
The wife was unemployed at the time of the hearing. Her employment as a school teacher had been in Chicago, and there is nothing in the evidence to indicate that she could have resumed this employment in the Denver area. Considering the financial history of the marriage; the demonstrated earning capacity of the husband; the present needs of the wife; the obligations of the wife to care for the child; and the uncertainty concerning her ability to become self-supporting at a predictable date in the future, the award of a total sum of $3,000 in alimony was grossly inadequate and an abuse of discretion. The court's error in limiting alimony to $250 per month for one year requires a reversal of the entire judgment. In Baugher v. Baugher, 158 Colo. 547, 408 P.2d 443, the court stated:
'We believe that both of these matters must be considered together, however, as the division of property and permanent alimony are not unrelated, but on the contrary are inextricably interwoven, one with the other.'
The judgment is reversed and the cause is remanded for further proceedings.
SILVERSTEIN, C.J., and PIERCE, J., concur.