Opinion
Maurice F. Fox, Wheat Ridge, for plaintiff-appellee.
H. Earl Moyer, Lakewood, for defendant-appellant.
RULAND, Judge.
This is an appeal from a property division order dated May 5, 1972. All of the personal property of the parties (valued at $1,000) was awarded to the wife, together with an undivided interest in a parcel of real property (referred to as the Jeffco property). The Jeffco property was valued at $260,00, with an outstanding mortgage of approximately $47,000. At time of trial, record title was the name of the wife and the wife's mother, as joint tenants. The husband contends that the trial court erred in refusing to award him an interest in the Jeffco property since it was the only substantial asset of the parties.
The Jeffco property was purchased in 1963. Based on disputed evidence, the trial court found that the down payment for the property was contributed by the wife (from an inheritance) and by the wife's mother. Title was taken by husband, wife, and wife's mother as joint tenants. In 1968, whatever title the husband acquired at the time of purchase was sold at a sheriff's sale to satisfy judgments against him. His interest in the property was transferred by sheriff's deed to the wife's mother, purchase at that sale. In 1971, when the husband filed bankruptcy, he claimed no interest in the Jeffco property in listing his assets.
Division of property is a subject peculiarly within the discretion of the trial court, and its decision will not be overturned except for abuse of discretion. Traynor v. Traynor, 146 Colo. 70, 360 P.2d 431. In this case the trial court found, in effect, that no legal claim to the Jeffco property remained in the husband following the sheriff's sale and declined to award any portion of the wife's interest to the husband. Citing Santilli v. Santilli, 169 Colo. 49, 453 P.2d 606, the husband contends that even assuming the wife acquired her interest by inheritance, the Jeffco property should not have been excluded, per se, from consideration for purposes of division. The record confirms that the trial court did not exclude the Jeffco property from consideration for division purposes. Rather, the trial court concluded after considering all the evidence that the wife's entire interest in the Jeffco property should be her sole property. Under the circumstances of this case, we find no abuse of discretion by the trial court., See Liggett v. Liggett, 152 Colo. 110, 380 P.2d 673.
The husband also contends the trial court should have granted a new trial based upon newly discovered evidence. This evidence consisted of a tax return of the parties, a copy of loan payments on the property, copies of bank deposits and cancelled checks, and a transcript of judgment against the husband.
To sustain a motion for new trial on the ground of newly discovered evidence, it must be established that the evidence could not have been discovered in the exercise of reasonable diligence and produced at trial, that the evidence is material to some issue before the court under the pleadings, and that if received, it would likely change the result. Kennedy v. Bailey, 169 Colo. 43, 453 P.2d 808. The granting or denial of a motion for new trial based on newly discovered evidence rests within the sound discretion of the trial court. Gomez v. Miller, 170 Colo. 106, 459 P.2d 126; American National Bank v. Christensen, 28 Colo.App. 501, 476 P.2d 281. The husband's other contentions were not presented in his motion for new trial and will not be considered on review. C.R.C.P. 59(f). Gypsum Aggregates Corp. v. Lionelle, 170 Colo. 282, 460 P.2d 780.
Judgment affirmed.
SILVERSTEIN, C.J., and SMITH, J., concur.