Opinion
Ginsberg & Ginsbert, Sheldon K. Ginsberg, Denver, for plaintiff-appellee.
Kaufman, Greenwald & Machol, P.C., Jack Greenwald, Jacques A. Machol, Jr., Denver, for defendant-appellant.
PIERCE, Judge.
Defendant (the wife) appeals from final orders regarding the division of property following the granting of a divorce decree to both parties. We affirm.
Following a hearing at which both parties were present and represented by counsel, the trial court found the marital estate to be valued at approximately $30,000 and awarded the wife $7500 as her share of the marital property. The wife filed a motion for new trial on the permanent orders alleging that the proper value of the marital estate was in excess of $80,000 and that the trial court had abused its discretion in failing to make an equitable and just award in dividing the property. The motion for a new trial also alleged that various actions of the husband taken subsequent to the date of the hearing on final orders provided 'newly discovered evidence' bearing on his general financial status and the value of various items of personal property which had been included in the marital estate. The motion for new trial was denied and this appeal was taken.
I
The wife first argues that the trial court abused its discretion by failing to make a fair and equitable division of the property between these parties as required by the law in effect at the time this action was commenced, C.R.S1963, 46--1--5(2). In considering this question, we are guided by well-settled law in Colorado which has established that the division of marital property is a matter which lies within the sound discretion of the trial court and that findings on such matters which are supported by competent evidence will not be disturbed upon review. Nunemacher v. Nunemacher, 132 Colo. 300, 287 P.2d 662. It is also well settled that a 'fair and equitable' division of marital property does not require that the marital estate be split in equal proportions. Thompson v. Thompson, 30 Colo.App. 57, 489 P.2d 1062.
The wife argues that the trial court erred in granting her only 25% Of the marital estate. Citing Santilli v. Santilli, 169 Colo. 49, 453 P.2d 606, the asserts that she is entitled to benefits from the appreciation of property included within the marital estate. She further argues that she performed 'substantial services' for the husband's business and is therefore entitled to a share of the asserts greater than 25%.
While the trial court made no express finding on the issue of her contribution to the business, the record indicates only minimal activity on her part regarding the business. In any event, we find nothing in the record to indicate that the trial court failed to consider evidence of the appreciation in value of marital assets during the marriage and the wife's contribution thereto. The trial court found that, in view of the fact that the marriage had lasted only three years, the wife was entitled to less than one-half of the marital estate. We find no abuse of discretion in that assessment. See Kraus v. Kraus, 159 Colo. 331, 411 P.2d 240.
While the wife has extensively discussed her view of the evidence before the trial court, she has not demonstrated any lack of evidence in the record to support the finding of the trial court. However within the record, we find a detailed affidavit of the husband setting out the assets of the marital estate, many of which were subject to outstanding encumbrances. Furthermore, on direct examination, the husband discussed the items in the affidavit, and at one point, testified that from the figures which were available to him, his net worth at the time of the hearing was approximately $30,000.
The wife had an opportunity to cross-examine the husband and to introduce evidence to contradict the affidavit and his testimony. The record before us discloses no attempt by the wife to demonstrate at the hearing that the value of the marital estate was in excess of $80,000.
The finding of the trial court that the estate was worth approximately $30,000 is supported by competent evidence in the record, and will not be disturbed on review. Nunemacher v. Nunemacher, Supra.
II
The wife also suggests that the trial court should have granted the motion for new trial on the basis of her allegations of 'newly discovered evidence.' Again, we disagree.
Under C.R.C.P. 59(a)(4) an affidavit in support of a motion for new trial based on newly discovered evidence must refer to evidence which was in existence at the time of the hearing, but which could not have been discovered in the exercise of reasonable diligence and produced at trial. 6A J. Moore, Federal Practice 59.08(3).
All of the 'newly discovered evidence' alleged by the wife dealt with events occurring after the hearing. If such 'evidence' could be brought into the case on a motion under C.R.C.P. 59(a)(4) there would be no logical end of litigation. While events subsequent to the hearing may be relevant to a motion for relief from a judgment under C.R.C.P. 60(b), they cannot be considered under the guise of 'newly discovered evidence.' 6A J. Moore, Supra.
Defendant's motion for new trial does not allege any entitlement to relief under C.R.C.P. 60(b); nor does it indicate in any way that the wife was hampered in any way in gathering relevant evidence. She submitted 15 typewritten pages of interrogatories requesting information about the husband's assets. Her failure to gather further evidence and present it in a manageable form to the trial judge does not warrant the granting of a motion for new trial. It was not error, therefore, for the trial court to deny the wife's motion for new trial on the basis of newly discovered evidence.
III
Finally, the wife argues that the findings of the trial court were sufficient under C.R.C.P. 52(a). We disagree.
The requirement that the trial court make findings of fact does not require a detailed summary of the evidence taken at the hearing. C.R.C.P. 52(a) requires only that the trial court make findings on the material and ultimate issues in the case. Lininger v. Lininger, 138 Colo. 338, 333 P.2d 625. The record indicates that the trial court, in considering the property settlement, was properly presented with many factors. Upon sufficient evidence, it determined the total value of the marital estate, and set forth adequate reasons for the relative proportion of that estate to which each party is entitled. The necessary findings are present here and they were sufficient to permit this court to review the judgment for alleged abuse of discretion. Twin Lakes Reservoir & Canal Co. v. Bond, 156 Colo. 433, 399 P.2d 793. See Traynor v. Traynor, 146 Colo. 70, 360 P.2d 431.
Judgment affirmed.
SMITH and RULAND, JJ., concur.