Summary
upholding division of real property gifted by parent to both parties as part of the marital estate
Summary of this case from In re Marriage of Tondeleyo L. DaleOpinion
Fischer, Wilmarth & Hasler, Timothy W. Hasler, Fort Collins, for petitioner-appellee.
Warberg & Mast, Sonja E. Warberg, D. Chet Mast, Fort Collins, for respondent-appellant.
RULAND, Judge.
Respondent (husband) appeals from those provisions of a decree of dissolution ordering sale of property acquired by the parties during their marriage and equal division of the proceeds therefrom. We affirm.
The parties were married in 1964 and separated in 1972. Both parties were employed during their marriage and applied their earnings to living expenses and acquisition of assets. The 180 acre farm in question here was purchased by the parties from respondent's mother in 1970.
Based from the evidence presented during the trial, the court found that the farm and a small cattle herd constituted marital property, that the contributions of both parties to the acquisition of these assets were approximately equal, that if the real property were acquired in part by gift from husband's mother then the gift was made to both parties, and that since the cattle had been previously disposed of, the parties should share equally in proceeds from sale of the farm. No appeal is taken as to division of assets other than the farm.
Because the court, in effect, divided the farm equally between the parties, husband concludes that a 'community property' formula was applied and asserts that the trial court erred in failing to consider testimony showing his efforts and expenditures in maintenance of the farm prior to the marriage, which factors he claims induced his mother to substantially reduce the purchase price for the farm.
Division of property is a subject peculiarly within the discretion of the trial court, and the division made will not be disturbed upon review, except for abuse of that discretion. Liggett v. Liggett, 152 Colo. 110, 380 P.2d 673; Larrick v. Larrick, 30 Colo.App. 327, 491 P.2d 1401. The court's findings reflect consideration of: (1) The contributions of each spouse, including petitioner's contribution as homemaker, her labor on the farm property, as well as her monetary contribution on the acquisition of said property; (2) the economic circumstances of each spouse; (3) the value of other property awarded to each party; and (4) whether the reduction in purchase price for the farm constituted a gift. See 1971 Perm.Supp., C.R.S.1963, 46--1--13. Wife requested but was denied maintenance, and the court ordered her to pay certain debts incurred by the parties. Under these circumstances, the record supports the trial court's division of property, and we find no abuse of discretion.
Husband also contends that the trial court erred in ordering that the farm be sold either at private sale according to terms and conditions mutually agreed upon by the parties, or, if the parties were unable to agree, at public auction. He asserts that the evidence established a present market value for the real estate, that the real estate was capable of equitable partition, and that it should, therefore, be divided in kind.
The order for sale of the real estate was a proper exercise of the court's power. See Jekot v. Jekot, Colo.App., 507 P.2d 473. The terms thereof allow either party an opportunity to purchase part or all of the farm by mutual agreement or to arrive at a voluntary partition thereof without any necessity for public auction. A review of the record again reveals no abuse of discretion.
The judgment is affirmed.
PIERCE and SMITH, JJ., concur.