Opinion
Rehearing Denied April 9, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 930
Kingsley & Wolf, Denver, for plaintiff in error.
Van Cise, Freeman, Tooley & Eason, Denver, for defendant in error.
DUFFORD, Judge.
This case was originally filed in the Supreme Court and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties appear here in the same order as they appeared in the trial court. We shall refer to the plaintiff as 'Mrs. Morgan' and to the defendant as 'Mr. Morgan.'
A separate maintenance decree was granted to Mrs. Morgan on June 10, 1957. Within the findings of that decree, the court found that the needs of Mrs. Morgan and those of the Morgan's children required an allowance of $650.00 per month. The decree contained an order making permanent a prior temporary award of approximately such monthly amount with directions that such sum be paid into the registry of the court. By the terms of the decree, a certain trust agreement of January 21, 1957 between Mr. Morgan and one Matthew E. Stager, which we shall call the 'Stager Trust,' was nullified, and all conveyances from Mr. Morgan to the trustee, Stager, were voided. This result occurred although the trust's principal purpose was clearly that of providing funds for the children's support and education.
On March 31, 1958 the monthly payments required from Mr. Morgan for the support and maintenance of the wife and children was modified to provide for a monthly payment of $500.00.
By decision of June 19, 1959, our Supreme Court in Morgan v. Morgan, 139 Colo. 545, 340 P.2d 1060, modified the original decree between the Morgans insofar as such decree provided for a division of property. That decision also vacated the trial court's orders as to the Stager Trust and its trustee. The Supreme Court so ruled on the sole basis that Stager was not a party to the separate maintenance suit and, therefore, no order could be entered against him.
The matter before us now arises from a motion for judgment by Mrs. Morgan, filed October 19, 1965 and subsequently amended, under which a judgment is sought for arrearages in the payment of support and maintenance obligations over the period from January 1961 to November 1966. The trial court's ruling in this instance was based on such motion and on an agreed statement of facts with supporting briefs from counsel for the respective parties.
In the trial court, and on appeal, counsel for Mr. Morgan contend essentially that certain payments made out of the assets of the Stager Trust should be considered as payments against the support and maintenance obligations of Mr. Morgan. The payments made by the Stager Trust, and for which credit is claimed, included payments made directly to Mrs. Morgan; payments made directly to the children; and a payment made to discharge the real estate taxes on the family home which was being lived in by Mrs. Morgan and some of the Morgan children. In determining the judgment amount, the trial court allowed such credits totaling $12,966.31 and awarded judgment to Mrs. Morgan for $4,783.69, being the balance of the arrearages claimed.
From such judgment Mrs. Morgan has appealed, contending that the trial court erred in entering the amount of the judgment on a basis which took into account the payments from the Stager Trust. In part we agree with this contention.
Mrs. Morgan's principal contention is that in this jurisdiction a trial court is without authority at a hearing on a wife's motion for judgment on an arrearage to enter an order which in effect modifies the amount of delinquent support payments. Unquestionably this is the law here. Drazich v. Drazich, 153 Colo. 218, 385 P.2d 259. The trial court in this case, however, made no attempt to act in such manner. To the contrary, in its order it specifically observed this mandate by refusing, in the absence of a prior modifying order, to relieve Mr. Morgan of any obligation to support two of his children who had previously become emancipated. As we view it, the trial court was not attempting to modify retroactively the prior support order. Rather it was engaged in computing the amount of the actual arrearage due under that order, by finding what payments had not been made.
From this, the next question is whether it was proper for the trial court to consider payments which were not paid into the court registry and which were made by the Stager Trust and not by Mr. Morgan. As to those payments made directly to Mrs. Morgan, we rule here that it was proper since such payments went directly to the court-ordered recipient. Our initial opinion on such question, and our rationale for so ruling, is set forth in Dorsey v. Dorsey, Colo., 470 P.2d 581, decided February 25, 1970. As to those payments not paid directly to Mrs. Morgan but paid either to the children or to discharge taxes on the home, credit should not have been allowed. Custody and control of the children and the burden of budgeting their support and maintenance funds rested in Mrs. Morgan. It is improper to create or to sanction an atmosphere which would subvert her responsibilities in such position. Bradley v. Fowler, 30 Wash.2d 609, 192 P.2d 969, 2 A.L.R.2d 822.
Contention was made by Mrs. Morgan that in no event should any of the trust funds be allowed in discharge of the court-ordered support and maintenance payments because the trust funds were products of property acquired through the joint efforts of Mr. Morgan and herself. The action here was and is separate maintenance, and our concern is not with any division of property, but rather with the duty of a husband to provide reasonable support for his wife and children. Morgan v. Morgan, 139 Colo. 545, 340 P.2d 1060; Vines v. Vines, 137 Colo. 449, 326 P.2d 662. The initial source of the trust corpus is, therefore, without significance.
The judgment of the trial court is reversed and the cause remanded with directions that judgment be entered for Mrs. Morgan in an amount consistent with the views herein set forth.
COYTE and DWYER, JJ., concur.