Opinion
Jan. 28, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Epstein, Lozow & Preblud, P.C., Frederick Epstein, Jon Lozow, Arlan I. Preblud, Denver, for petitioner-appellant.
David Burnell Smith, Littleton, for respondent-appellee.
STERNBERG, Judge.
This is an appeal in a dissolution of marriage action in which the petitioner, wife, alleges an abuse of discretion regarding division of property, and maintenance. We find no error, and affirm.
The marriage in this case was of 25 years duration and two children had been born as issue thereof. The older child was emancipated, and the younger, an 18-year-old girl, resided with the husband. While the wife had been employed occasionally during the past five years, and had earned about $1,400 during 1972 as a real estate salesperson in New York, at the time of this proceeding she was not working. Although now residing in Colorado she was not licensed to sell real estate here. The husband's net income was approximately $1,050 per month. The principal assets of the parties consisted of a home in New York, a smaller home occupied by the husband in Morrison, and an unimproved lot in Evergreen. The total equity in these properties was found to be $65,000, with the major portion of that being attributable to the New York home.
The court divided the personal property between the parties, and ordered payment of maintenance to the wife in the amount of $250 per month to terminate at the end of 10 years, or upon the remarriage of the wife within that period.
The court also ordered an equal division of the real estate. Title to the New York home was given to the husband with the stipulation that he list it for sale, and pay to the wife $32,500 upon sale. This $32,500 was to be secured by a second deed of trust payable out of the proceeds of the sale, with this obligation bearing interest at the rate of 7 3/4 percent per annum, payable monthly. This interest payment approximates the rental income from the property.
Matters of division of property 'rest within the sound discretion of the trial court and will not be disturbed upon review except for its abuse.' Kraus v. Kraus, 159 Colo. 331, 411 P.2d 240. The division of property in this case clearly falls within that broad spectrum of the trial court's discretion.
Applying the standards set forth in s 14--10--114, C.R.S.1973 (1971 Perm.Supp., C.R.S.1963, 46--1--14), to the facts of this case, the trial court did not abuse its discretion in determining the amount of maintenance to be awarded. See Thompson v. Thompson, 30 Colo.App. 57, 489 P.2d 1062. Deducting the amount of maintenance to be paid from the husband's income, he is left with just under $800 per month to support himself and his 18-year-old daughter. The wife, on the other hand, will have $250 maintenance plus $209.89 per month from interest on the second deed of trust on the New York home. After the New York home is sold and the wife receives her $32,500 from the proceeds, that money will be available to her for investment purposes if she so desires. These sums could be supplemented by any money she earns. While there was testimony presented that the wife's physical condition might interfere with her ability to work in a job requiring her to sit for long periods of time, nevertheless, evidence in the record supports an inference that she could pursue gainful employment.
The wife objects to the termination of the maintenance award at the end of 10 years alleging that the court erred in not making provision for her to reopen it in the event her physical condition deteriorated or other circumstances changed. In support of the 10-year limitation in the court's order, the husband urges that the court is not precluded from exercising continuing jurisdiction over both the amount and duration of the maintenance award. We agree. Section 14--10--122, C.R.S.1973 (1971 Perm.Supp., C.R.S.1963, 46--1--22) gives to the trial court continuing jurisdiction over the amount and duration of court-ordered maintenance upon a motion for modification based upon changed circumstances. The decree in this case has done nothing to eliminate that continuing jurisdiction, and thus, the court did not abuse its discretion in providing for maintenance to terminate at the end of 10 years.
Judgment affirmed.
COYTE and RULAND, JJ., concur.