Opinion
May 18, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Overholser & Slee, John W. Overholser, Montrose, for plaintiff in error.
Brown & Brown, Robert Brown, Delta, for defendant in error.
COYTE, Judge.
This case was transferred from the Supreme Court pursuant to statute.
The parties appear in reverse order from their appearance at trial, and shall be referred to in that manner.
The parties were divorced in 1967 after twelve years of marriage. As part of its order, the trial court awarded the defendant the bulk of the property of the parties and ordered plaintiff to pay $100 a month in alimony for twenty-four months. Twenty-one months later, just before the alimony payments were due to cease, the defendant moved that the order be modified so as to increase the payments to $175 per month, and continue them until the defendant either remarried or became self-supporting. The trial court denied the motion for additional alimony and also denied the defendant's application for attorney's fees. On appeal, defendant seeks reversal claiming that the trial court abused its discretion.
As grounds for the motion, defendant claimed that her physical condition had so changed for the worse, and that plaintiff's financial condition had so improved, that an increase and continuation of the alimony payments were necessary. Plaintiff denies that change or circumstances was established and, on that basis, asks that the judgment be affirmed. Since the divorce there has developed a small change in the circumstances of the parties. Plaintiff has received a small raise in salary and his physical assets have increased slightly. Defendant claims her assets have diminished, but we note that this comes about by her re-evaluation of the furniture received in the property settlement award. Defendant also claims that her physical condition has so worsened that she is unable to work. Although there is a showing that defendant requires some medical attention, the evidence is highly conflicting as to the seriousness of her condition, as to the scope of her incapacity, and as to whether her condition would prevent her from seeking or finding more remunerative permanent employment.
A consideration of the evidence here fails to demonstrate an abuse of discretion by the trial court. It may modify an alimony award when in its discretion it determines that the circumstances of the parties have so changed as to require a change in the award. Elmer v. Elmer, 163 Colo. 430, 431 P.2d 470. Here the trial court determined on conflicting evidence that there was not such a change in circumstances as would require a modification of the award. We have studied the record and agree with the trial court.
The trial court denied defendant's application for attorney's fees. Her application for modification of alimony had been denied. The allowance or non-allowance of attorney's fees was a matter for the trial court to determine. There is no showing that it abused its discretion. Accordingly, we approve its disallowance of attorney's fees. Stovall v. Crosby, Colo., 464 P.2d 868.
Judgment affirmed.
DWYER and DUFFORD, JJ., concur.