Opinion
Feb. 25, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Jack H. Dwyer, Denver, for plaintiff-appellee.
Torgan, Hall & Kinney, Stevens P. Kinney, II, Denver, for defendant-appellant.
Page 756
RULAND, Judge.
Defendant Max Leroy Kinnaman (Husband) appeals from a judgment denying his motion to terminate or reduce alimony payments to plaintiff Bonnie J. Kinnaman (Wife). We affirm.
The parties were divorced in November 1971 after 30 years of marriage. The principal asset of the parties at the time of divorce was equity in a marital residence. In the original permanent order, the equity was awarded to Wife, and Husband was directed to pay alimony of $150 per month for 24 months. However, this order was modified May 1, 1972, on motion of Husband to the extent that the residence was ordered sold, the proceeds divided equally between the parties, and Husband was directed to pay permanent alimony of $150 per month. Wife invested most of her share of the proceeds in a residence; it is not clear from the record how Husband used his share.
On February 27, 1974, Husband filed his motion to terminate or reduce alimony alleging a substantial change in circumstances. From the evidence presented at the hearing on this motion, it appears that Husband's net monthly income as a general mechanic had increased from $548 as of the date of the amended permanent order to at least $654.86. Husband also expected an additional increment in his salary but could not verify a specific amount. Husband testified that his monthly expenses, not including the alimony payments, had increased from $340.69 per month to $684.50. Husband had remarried in the interim and it appeared that he was paying all living expenses of himself and his second wife even though she was employed full time. Notwithstanding the increase in expenses, he had purchased a 1974 automobile and had accumulated $2,000 in a joint savings account with his second wife since their marriage.
At the time of entry of the amended permanent order, Wife was earning only $20 weekly. However, sometime thereafter she obtained full-time employment increasing her net monthly earnings to at least $326.70. In the interim, her monthly expenses increased from $315.73 to $369.56. Wife had accumulated a savings account of $2,930, but it is not clear from the record whether her contributions to the account were derived from sale of the residence as well as from her income.
Based on this evidence, the trial court determined that the change in circumstances was not sufficient to warrant termination or reduction in alimony. In this appeal Husband agrees that the trial court has wide discretion to determine whether a sufficient change of circumstances has occurred to justify a modification of alimony. See Elmer v. Elmer, 163 Colo. 430, 431 P.2d 470. However, he asserts that the trial court's denial of his motion was an abuse of discretion in this case because his increase in expenses when considered with Wife's increase in income render the alimony order 'confiscatory.' We disagree.
Although Husband presented evidence that his expenses had increased substantially subsequent to the issuance of the amended order and that his spendable income had not increased proportionately, the trial court in effect found that the only relevant change in his circumstances, in addition to his recent purchase of a new car, was that he had remarried and had assumed the expenses of his second wife. Except for the remarriage, there was no showing that his needs had substantially increased. His assumption of new obligations incident to a second marriage does not constitute such a change in circumstances that modification of the previous order is required. Watson v. Watson, 29 Colo.App. 449, 485 P.2d 919.
While Wife's income had increased so that her net salary together with the monthly alimony exceeded her expenses by approximately $100, increased earnings by a spouse who receives alimony do not necessarily require a modification of an award of alimony. See Curry v. Curry, 102 Colo. 381, 79 P.2d 653; See also Frazier v. Frazier, 164 Colo. 245, 433 P.2d 764. The test in review of the trial court's order is not whether we would have entered an identical order, but whether the record clearly shows an abuse of the wide discretion granted to the trial court. See Dorsey v. Dorsey, 28 Colo.App. 63, 470 P.2d 581. We are unable to conclude that the trial court abused its discretion in this case.
Judgment affirmed.
COYTE and SMITH, JJ., concur.