Opinion
March 30, 1971
Editorial Note:
This case has been marked 'not for publication' by the court.
Goodbar, Goodbar & Fischer, C. Lee Goodbar, Jr., Colorado Springs, for plaintiff in error.
Asher & Kraemer, Phillip A. Kendall, Colorado Springs, for defendant in error.
DUFFORD, Judge.
This case was transferred from the Supreme Court pursuant to statute.
The parties are before us in the positions they held in the trial court. The Wallaces were divorced in 1965. In 1968, Mrs. Wallace sought judgment for alimony arrearages. During the course of those proceedings, Mr. Wallace moved to modify his alimony obligations. Ultimately the trial court entered judgment for all accrued arrearages, but it also modified Mr. Wallace's future alimony obligations. Mrs. Wallace appealed the order of modification. Subsequent to this appeal's coming to issue, Mrs. Wallace died. Under the authority of C.R.S. 1963, 153--1--9, and the holding in Israel v. Arthur, 6 Colo. 85, we allowed the Colorado Springs National Bank as Administrator of the Estate of Esther E. Wallace, Deceased, to be substituted as the plaintiff in error.
In the order appealed from, the trial court found that: (1) Mrs. Wallace was experienced in her profession; (2) she was regularly and gainfully employed to the extent of providing adequately for herself; and (3) her needs, requirements, and assets were such that she was not in need of alimony in the amount which had been previously ordered.
The order of the trial court was entered only after a full hearing, during which each of the Wallaces testified, and after the court had examined detailed income tax returns of each of the parties. Although contested by Mrs. Wallace, there was evidence before the trial court that Mrs. Wallace's health had improved significantly since the time of divorce. There was unrefuted evidence of her increased proficiency within her professional field as a dental technician and of the facts that her earning ability had increased and her over-all financial condition had improved since the time of divorce. Conversely, there was evidence that the over-all financial condition of Mr. Wallace had deteriorated during that same period. In view of these factors, we hold that there was evidence within the record from which the trial court could have properly concluded that the original alimony decree was no longer equitable. See Harris v. Harris, 113 Colo. 41, 154 P.2d 617. The determination of this question was within the discretion of the trial court and, in the absence of an abuse of that discretion, it will not be disturbed on review. Elmer v. Elmer, 163 Colo. 430, 431 P.2d 470.
The trial court's order relating to the modification of alimony is affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.